Complicity and Institutional Decay
A policy of enforcement of involuntary repatriation and the question of
accessory liability of the UNHCR in the crime of forced displacement
Daria Grigorieva
12659797
Abstract
As conflicts become increasingly complex and protracted, the number of people forcibly displaced grows larger. A growing burden is placed on the state of refugee, which may not have the resources to continue to host the refugees for an indefinite period of time and thus may begin to seek avenues for their repatriation. As the leading institution for refugee affairs, the Office of the United Nations High Commissioner for Refugees (UNHCR) is responsible for protecting and promoting their rights in their host state. However, as the quality of its assistance is dependent on the state’s permission for its operations on their territory, its assistance appears at times to focus more on the state than the individuals under their protection. This thesis aims to evaluate the depth of this assistance and to understand the extent to which it could be classified as complicity in the crime against humanity of deportation. It will use an interdisciplinary approach, combining political science and institutional theory with an element of international criminal law to question the extent to which the existence of any complicity is indicative of institutional decay of the UNHCR. Three case studies will be used to demonstrate the existence of a pattern of conduct, which has developed through a failure to adhere to its mandate and established principles. Through an analysis of the impact of complicity upon the UNHCR’s adaptability, autonomy and coherence, the thesis will conclude by suggesting recommendations to reverse the process of decay.
Table of Acronyms
ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia SCSL Special Court of Sierra Leone
UN United Nations
Table of Contents
I. Introduction ... 1
2. Institutional strength and decay ... 3
2.1. Introduction ... 4
2.2. Elements of institutional strength ... 4
2.3. Transition from strength to decay ... 6
2.4. Conclusion ... 9
3. Enforcement of involuntary repatriation and the crime of forced displacement ... 9
3.1. Introduction ... 9
3.2. The role of the UNHCR in the provision of effective solutions ... 11
3.3. The crime of forced displacement ... 12
3.4. Forced displacement in Turkey ... 15
3.5. Aiding and abetting ... 16
3.5.1. Assistance in the crime against humanity of deportation in Turkey ... 18
3.6. Conclusion ... 19
4. Impact of complicity upon the institutional strength of the UNHCR. ... 19
4.1. Introduction ... 19
4.2. Past as a prologue ... 20
4.2.1. Bangladesh/Myanmar ... 21
4.2.2. Tanzania/Rwanda ... 22
4.3. The correlation between complicity and institutional decay ... 24
4.4. Conclusion ... 26
I. Introduction
Over the last decade, the refugee crisis has become an urgent global issue with the rise in intra-State conflicts demanding the attention of both domestic and international communities. With 70.8 million people forcibly displaced at start of 2019,1 the need for effective and sustainable
approaches to this crisis has never been greater. The Syrian conflict has resulted in one of the worst humanitarian crises, with over 5.5 million citizens forced to flee their country. This mass exodus of refugees has turned the spotlight on the Office of the United Nations High Commissioner for Refugees (UNHCR) as the principal international organ for refugee affairs. With over 3.5 million refugees currently being hosted in Turkey, the UNHCR’s work is undoubtedly vital.2 However, institutions are frequently held hostage by political interests and consequently fail to adapt to new strategic challenges in the external environment.3 This is somewhat expected in contemporary international relations; however it is the degree that state influence permeates into the functioning of an independent and impartial institution that requires examination. The UNHCR’s decision to act as an intermediary between the governments of Turkey and Syria to facilitate repatriation into a tenuously-established buffer zone between the two countries ostensibly appears to be a deviation from its established mandate and principles.4 Arguably still a dangerous area of conflict, it is difficult to convincingly argue that this is simply a mistake, particularly in light of the level of expertise that the UNHCR possesses in the field of refugee affairs.
If it is not a policy error, then this brings into question whether similar decisions have previously been taken. If so, they may form a pattern of established practice of deviation, invoking ideas of the concept of institutional decay. Described as the ‘gradual disintegration of a previously routinised pattern of conduct’,5 decay implies that the strength of an institution
is diminished if norms and patterns of conduct are progressively permitted to contradict each other. In relation to the working practices of the UNHCR, this may be evidenced by a deviation from the requirement that return of the refugee population to their state of origin must be
1 UNHCR, ‘Figures at a Glance’ (UNHCR) <https://www.unhcr.org/ph/figures-at-a-glance>.
2 UNHCR Operational Portal, ‘Syria Regional Refugee Response’ (UNHCR)
<https://data2.unhcr.org/en/situations/syria>.
3 Colum Lynch, ‘U.N. Security Council Paralyzed as Contagion Rages’ Foreign Policy (27 March 2020)
<https://foreignpolicy.com/2020/03/27/un-security-council-unsc-coronavirus-pandemic/>.
4 ‘UNHCR discuss voluntary return of Syrians’ Hurriyet Daily News (12 January 2019)
<https://www.hurriyetdailynews.com/turkey-unhcr-discuss-voluntary-return-of-syrians-148588>.
5 Ernst B. Haas, ‘Regime Decay: Conflict Management and International Organisations 1945-81’, (1983) 37
determined to be ‘voluntary, safe and dignified’6, in favour of return under the timeframe and
conditions desired by the state of refugee.7 Often involuntarily and to ongoing dangerous conditions however, the return of refugees by a state can be of the requisite severity to reach the threshold of the crime against humanity of deportation. The existence of such a determination would not necessarily directly impact the UNHCR, were it not for its growing assistance in the repatriation process over the past two decades. Beginning with a transition to a position of active promotion of repatriation among the refugee population, the UNHCR has now progressed to its role as an intermediary in the negotiation process to facilitate a repatriation agreement between two states. Such assistance is not naturally within the purview of the institution, which is mandated to act solely for the protection of refugee rights, not the facilitation of state interests.
There is potential for this degree of assistance to fall within the parameters of aiding and abetting to the crime against humanity of deportation. For this reason, it would be particularly insightful to examine the potential existence of any institutional decay through the lens of accessory liability, in an effort to answer the question of to what extent complicity of an international institution in international crimes can be one of the conclusive indicators of its decay. There is a great deal of research surrounding regime decay at a national level but very minimal research, if any, conducted in the field of international institutions.8
To raise this question, it will be asked what the elements of institutional strength and decay are and what factors contribute to a transition from the former to the latter. Utilising this understanding as a theoretical framework, and using the UNHCR as the prime focus of discussion, it will be asked whether the enforcement of involuntary repatriations in Turkey could amount to the crime against humanity of deportation. Finally, using potential complicity in this crime as a foundation, it will be asked whether complicity can indicate institutional decay. To enable this analysis, the thesis will utilise an inter-disciplinary approach, combining elements of institutional theory and political science, while drawing upon an aspect of international criminal law. As compliance with this area of law is quickly becoming a
6 UNGA Res 72/150 (19 December 2017) A/RES/72/150.
7 B.S. Chimni, ‘From Resettlement to Repatriation: Towards a Critical History of Durable Solutions to Refugee
Problems’, in M. Barnett (ed.), UNHCR and Involuntary Repatriation: Environmental Developments, the
Repatriation Culture and the Rohingya Refugees, (1999) New Issues in Refugee Research, UNHCR Working
Paper No. 2, Geneva: UNHCR, pg. 12.
8 Marc A. Levy, Oran R. Young, Michael Zürn, ‘The Study of International Regimes’ (1995) 1 European Journal
fundamental requirement for the functioning of the global order, it seems appropriate to develop its reach beyond individual criminal responsibility, through the application of relevant legal concepts – for example, modes of liability – to international institutions and their specialised agencies in an integrative analysis.
Furthermore, the only mode of liability discussed will be aiding and abetting. The operation of the United Nations (UN) on the basis of consensus of its member states suggests an unlikelihood that the UNHCR could be responsible for directing or coercing a state to commit an international crime. Although still considered a possibility,9 its subsidiary nature could create difficulty in obtaining the evidence necessary to substantiate such an argument. Aiding and abetting is therefore most reflective of the UNHCR’s role in the assistance of the protection and management of refugee populations present on states’ territories. This thesis does not seek to attribute criminal responsibility to the UNHCR as a whole, but rather to attribute the elements of aiding and abetting to the individuals potentially responsible for the policy decisions undertaken by the institution.
Chapter 1 will identify the elements of institutional strength and how decay can begin to develop at an international level as a result of certain exacerbating factors. These will provide a theoretical framework for the examination of decay within the UNHCR in the final chapter. Chapter 2 will examine the crime against humanity of deportation and its application to the repatriation policy currently being negotiated between Turkey and Syria, as well as introducing the role of the UNHCR in this process. Lastly, Chapter 3 will turn the attention to previous operations of the UNHCR to demonstrate that the decision to act as an intermediary in repatriation negotiations is not an independent, mistaken policy decision. Rather, the examination of past missions and the concurrent development of the UNHCR’s forms of assistance will demonstrate the necessary pattern of deviation from its mandate and principles indicative of institutional decay.
2. Institutional strength and decay
9 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
2.1. Introduction
With high levels of bureaucratisation and strong political influences, it is apparent that stalwart international institutions have struggled to develop in step with rapid transformations of the world order.10 It is no surprise that institutions which were developed in the aftermath of World
War II are now being viewed as sclerotic and dysfunctional.11 As global issues at times begin to appear unsolvable, it is necessary to evaluate the institution’s strength to understand to what extent it is capable to continue functioning to solve the problem that was the reason for its creation. As effective and stable solutions to global crises are becoming few and far between,12 there is a danger that the institution has failed to effectively adapt to the changing environment. An inability to adapt can enable a deviation from established good practice, instigating the gradual decay of the institution through a loosening of commitments to its existing functional norms and identity.13
International institutions are designed to withstand factors that impact their domestic counterparts and consequently require a broader focus of analysis. When an institution is so fundamentally ingrained in the operation of the global order, it is ostensibly strong enough to withstand almost all issues.14 It is thus reasonable to assume established institutions are impacted either by internal malfunctioning15 or a rapid transformation of its operational environment. This chapter will determine the elements of institutional strength, followed by an discussion of the factors influential in the transitional process from strength to decay.
2.2. Elements of institutional strength
10 ‘Ex-official accuses United Nations of ‘colossal mismanagement’’ Reuters (19 March 2016)
<https://www.reuters.com/article/us-un-mismanagement-idUSKCN0WK2VV>.
11 Anthony Banbury, ‘I Love the U.N., but It Is Failing’ New York Times (18 March 2016)
<https://www.nytimes.com/2016/03/20/opinion/sunday/i-love-the-un-but-it-is-failing.html?_r=0>.
12 UN, ‘Paralysis Constricts Security Council Action in 2018, as Divisions among Permanent Membership Fuel
Escalation in Global Tensions’ United Nations Security Council (10 January 2019) <https://www.un.org/press/en/2019/sc13661.doc.htm>.
13 Mette Eilstrup-Sangiovanni, ‘Death of international organizations. The organizational ecology of
intergovernmental organizations, 1815-2015’, (2020) 15 The Review of International Organisations 339, 358.
14 Denis J Halliday, ‘The United Nations: The embarrassment of international law’, (2002) 18 Medicine, Conflict
and Survival 346, 347.
15 Sarah Kendzior, ‘Meritocracy for sale’ Al Jazeera (4 May 2013)
To facilitate the identification of decay, it is first necessary to identify the elements of institutional strength. These elements will provide the foundation for the assessment of any decay evidenced by the potential complicity by the UNHCR in the crime of forced displacement. Samuel Huntingdon provides four criteria for an assessment of strength: adaptability, complexity, autonomy, and coherence.16
An adaptable organisation is one that can assess changes in its external environment and consequently amend its internal procedures, while an institution’s complexity is demonstrated through a greater division of its labour in hierarchically and functionally structured subunits. For the purposes of this argument, the complexity of the UNHCR is agreed upon and not in dispute; its functions are performed by separate departments, each with a specific function and a high degree of technical capacity to manage it. It is itself a subunit of a hierarchical structure:17 a subsidiary organ of the UN, governed by the General Assembly and the Economic and Social Council.18 The UNHCR simultaneously divides its operations between a Deputy High Commissioner, responsible for oversight over administrative functions, and two Assistant Commissioners for Protection and Operations respectively.19
Autonomy and coherence are similar concepts and therefore can be approached simultaneously. An autonomous institution is one which has developed its own social identity and exists independently, insulating itself from disruptive external forces,20 while greater coherence is exemplified through well-defined roles and missions of the institution, with substantial consensus on its functional boundaries.21
Therefore, the greater the existence of these characteristics within an institution, the stronger it will be. However, their presence can be greatly impacted by the operational landscape of the institution, as well as its internal functioning, as will be discussed in the following section. When faced with these unexpected influences, it is the institution’s ability to adapt and preserve its independent identity and approved functional boundaries that ensures its survival against a new set of demands.22
16 Samuel Huntingdon, Political Order in Changing Societies (Yale University Press 1968), pg. 12. 17 UNHCR, 'Senior Executive Team’ (UNHCR) <https://www.unhcr.org/uk/senior-executive-team.html>. 18 UNHCR, ‘Governance and Oversight’ (UNHCR) <https://www.unhcr.org/governance.html>.
19 UNHCR, ‘Operational Support and Management’ (UNHCR) <https://www.unhcr.org/uk/51b1d647b.pdf>. 20 Francis Fukuyama, The Origins of Political Order (Farrar, Straus and Giroux 2011), pg. 451.
21 Samuel Huntingdon, n.16.
2.3. Transition from strength to decay
International institutions are primarily created to address the challenges of a particular social environment, whether for a more broad and overarching purpose, such as ‘to maintain international peace and security’,23 or to meet a specific need, such as ‘to safeguard the rights
and well-being of refugees’.24 Despite appearing at times to be ‘immortal or at least
long-lived’,25 institutional decay emerges when there is a failure to adapt to the contemporary
challenges of a changing operational landscape.26 This failure is emblematic of the weakness and inability of the international institution to ameliorate the problem that was the reason for its creation.27 Decay is consequently evidenced by a lack of adherence to its mandate, as any necessary adaptation to the changing environment should be for the purpose of continuing to uphold it. The autonomy of an institution is impacted by a similar failure, detracting from its defined social identity by preventing it from functioning at its fullest capacity, as the institution is permeated by the environment. Finally, its coherence is undermined by diminishing the fundamental understanding of its roles and functional boundaries. Naturally, decay is a gradual process evidenced through a pattern of actions. Such coherence can be eroded when the failure to adhere to the mandate becomes routinised and a normal part of procedure. If established rules and practices are incrementally deviated from, the exceptions to the rules will become routinised and will eventually normalise such deviance.28
Such deviations from the mandate can naturally be the result of both internal and external factors. Internal factors impact the operation of the institution, impeding its effective functioning when faced with a changing environment. A contributing factor to this effect would be failures in government and oversight. With a wide membership and large budget, international institutions become afflicted with accusations of hypocrisy29 and mismanagement
23 Charter of the United Nations and Statute of the International Court of Justice (signed 26 June 1945, entered
into force 24 October 1945) 1 UNTS XVI, Article 1(1).
24 UNHCR, ‘Mission Statement’ (UNHCR) <https://www.unhcr.org/4847b7832.pdf>.
25 Peter Bernholz, ‘Are international organizations like the Bank of International Settlements unable to die?’,
(2009) 4 Review of International Organizations 361.
26 Harold K. Jacobson, ‘International Institutions and System Transformation’, (2000) 3 Annual Review of
Political Science 149, 153.
27 Marc A. Levy, Oran R. Young, Michael Zürn, n.8, at 291.
28 Diane Vaughan, The Challenger Launch Decision (University of Chicago Press 1996).
29 George Russell, ‘World Food Program badly mismanaged special donor trust funds, auditor say’ Fox News (4
May 2016) <https://www.foxnews.com/world/world-food-program-badly-mismanaged-special-donor-trust-funds-auditors-say>.
of funds for personal use.30 Overspending of this sort divorces the institution and its employees from the realities of the environments in which they operate,31 potentially undermining its strength to deal with the problems that it was created to address and can question its ability to solve these global issues. This is further affected by a perceived inability to effectively monitor the missions it chooses to undertake,32 or to accept responsibility for crises of their own
creation.33 This approach creates a double standard between the institution and its member states when it rejects responsibility for upholding the rights it was created to protect.34 This
lack of accountability and transparency35 detracts from its role as a pillar of world society36
and enables the environment to incapacitate the institution which has failed to adapt itself accordingly.
Decay can further be caused by conflicts of interest, which undermine the institution’s impartiality. Such a diversion from its mandate can take several forms. Firstly, there have been instances of individuals in top positions enriching themselves from projects designed to provide relief for people of low-income countries.37 Such corrupt practices and behaviour fundamentally undermine the institution’s existence, damaging its social identity and its functional boundaries through ‘bid-rigging, conflicts of interest, bribery, theft, nepotism, and sexual harassment’.38 Impartiality is further undermined through donations by private
individuals of vast sums of money39 which, although directed towards essential projects, are
30 Maria Cheng, ‘WHO’s annual travel budget: $200 million’ Washington Post (21 May 2017)
<https://www.washingtonpost.com/world/europe/whos-annual-travel-budget-200-million/2017/05/21/342f0a62-3e7c-11e7-adba-394ee67a7582_story.html>.
31 Paisley Dodds, ‘More than 100 UN Peacekeepers ran a child sex ring in Haiti. None were ever jailed’ The Star
(12 April 2017) <https://www.thestar.com/news/world/2017/04/12/un-peacekeepers-child-sex-ring-left-victims-but-no-arrests.html>.
32 Lia Eustachewich, ‘UN knew years ago about refugee sex-for-food scandal, leaked report reveals’ New York
Post (29 May 2018)
<https://nypost.com/2018/05/29/un-knew-years-ago-about-refugee-sex-for-food-scandal-leaked-report-reveals/>.
33 UNGA ‘Report by the Special Rapporteur on extreme poverty and human rights’ (26 August 2016) A/71/367,
pg. 2.
34 Ibid, at 2.
35 OHCHR, ‘UN human rights expert: “UN lawyers undermine a just solution for the victims of cholera in
Haiti”’ (OHCHR, 25 October 2016)
<https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20758&LangID=E>.
36 John Meyer, ‘World Society and the Nation-State’, (1997) 103 American Journal of Sociology 144, 167. 37 Claudia Rosett, ‘How Corrupt is the United Nations?’ Commentary (April 2006)
<https://www.commentarymagazine.com/articles/claudia-rosett/how-corrupt-is-the-united-nations/>.
38 Independent Inquiry Committee into the United Nations Oil-for-Food Programme, ‘The Management of the
United Nations Oil-for-Food Programme’ (7 September 2005), pg. 160
<https://reliefweb.int/sites/reliefweb.int/files/resources/8D5BE817FC3D260D492570AE000D9A1D-iic-irq-7sepv4.pdf>.
39 ‘Ted Turner’s UN Foundation Built on Sand?’ Population Research Institute (1 April 1999)
received by opaquely named departments within the institution with minimal audit and oversight.40 Its social identity can be further blurred by an accompanying transformation into a ‘partnership organization’.41 The extent of such partnership is unclear but there is
undoubtedly potential for donations to be used in furtherance of a certain government’s interests with minimal transparency. Similarly this concept of partnership has seen governmental agencies take advantage of the potential collaboration,42 displaying closer resemblance to a corporate entity rather than an independent and impartial institution. Continued cooperation of this form could potentially transform it into a ‘predatory, undemocratic, unaccountable, and self-serving vehicle for global government’.43
However, it is arguably the impact of armed conflict which plays a greater role in diminishing its strength. Such dramatic shocks to both the international system and the international community tend to precipitate institutional change, as the geopolitical conflicts can undermine the institution’s ‘raison d’être’44 and weaken commitments to its behavioural norms and
identity.45 Although naturally there are organisations that were designed specifically to operation in these situations – for example, the International Committee of the Red Cross –, the test for strength should not be one of its effectiveness or its design, but instead of its continued adherence to its mandate in a period of geopolitical upheaval. Nowhere is the failure to discharge mandated duties more evident than when faced with the imminent commission of mass atrocity crimes.46 From a lack of political will to prevent the Rwandan genocide,47 to flawed policy choices leading to the fall of Srebrenica,48 to an inability to act in accordance with the Charter of the United Nations during the Syrian civil war,49 the extent to which the presence of armed conflict can incapacitate an institution has far-reaching effects for the
40 Claudia Rosett, n.37.
41 UN, ‘Ted Turner’s United Nations Foundation Delivers $1 Billion to UN Causes (UN, 11 October 2006)
<https://www.un.org/press/en/2006/dev2594.doc.htm>.
42 Ilyana Kuziemko and Eric Werker, ‘How Much Is a Seat on the Security Council Worth? Foreign Aid and
Bribery at the United Nations’, (2006) 114 Journal of Political Economy 905.
43 Claudia Rosett, n.37.
44 Mette Eilstrup-Sangiovanni, n.13, at 342. 45 Ibid, at 353-358.
46 UN, ‘Security Council Must Rectify Failure to Prohibit Use of Force, Maintain International Peace, Speakers
Stress in Day-long Debate’, UN Security Council (17 May 2018) <https://www.un.org/press/en/2018/sc13344.doc.htm>.
47 ‘UN admits Rwanda genocide failure’ BBC (15 April 2000)
<http://news.bbc.co.uk/1/hi/world/africa/714025.stm>.
48 David Rieff, ‘The institution that saw no evil’, The New Republic (12 February 1996).
49 Haya Atassi Önügören and Pinar Tankir, ‘Empty Promises: UN failing its mandate in Syria yet again?’ AA (27
March 2018) <https://www.aa.com.tr/en/analysis-news/empty-promises-un-failing-its-mandate-in-syria-yet-again/1100629>.
international community. The failure to ‘maintain international peace and security’ by the most significant international institutions during a new era of civil wars demonstrates the debilitating effect that the emergence of armed conflict can have on the strength of an institution.50
2.4. Conclusion
Armed conflict can be identified as an exacerbating condition of institutional decay, as its grave and debilitating consequences demand immediate, effective responses and solutions, sometimes beyond the capacity of the institution. These new sets of demands have a tendency to destroy old coping mechanisms and procedures before new ones can be developed. Coupled with a failure to adapt to the changing circumstances, this lays the foundation for a divergence from established social identities and functional boundaries. In these situations, there may be an increased reliance on states to provide them with the capacity to operate on their territory, often to the detriment of the institution’s neutrality.51 As will discussed in the following
chapter, this dependence on the host state may result in a gradual divergence from the institution’s mandate, instead giving greater weight to the national political agenda.
3. Enforcement of involuntary repatriation and the crime of forced displacement
3.1. Introduction
In respect of the purpose and operation of the UNHCR, decay manifests itself in the form of irresponsible intervention, where the humanitarian work that the institution undertakes during periods of armed conflict in fact contributes more to the problem, than the solution.52 This is particularly difficult to overcome if the institution seemingly appears to remain indifferent to the specific political consequences of its operation in particular locations, choosing instead to shelter behind the supposed benefits of its involvement in the region.53 This belief that some
50 Barbara Crossette, ‘U.N. Details Its Failure to Stop '95 Bosnian Massacre’ New York Times (16 November
1999) <https://www.nytimes.com/1999/11/16/world/un-details-its-failure-to-stop-95-bosnia-massacre.html>.
51 Emma Beal, Nick Hopkins, ‘How Assad regime controls UN aid intended for Syria’s children’ The Guardian
(29 August 2016) <https://www.theguardian.com/world/2016/aug/29/how-assad-regime-controls-un-aid-intended-for-syrias-children>.
52 David Kennedy, The Dark Sides of Virtue – Reassessing International Humanitarianism (Princeton University
Press 2004), pg. 30.
53 ‘UNHCR agrees with Erdogan on voluntary refugee return’ AA (17 December 2019)
intervention is better than none makes the institution particularly susceptible to dominance of political actors.54
A recent rise in nationalist policies and rhetoric55 has resulted in refugees being used as political pawns.56 This is particularly problematic for the operations of the UNHCR as it cannot simply
abandon them, and by extension all the refugees under their protection, because they do not agree with a state’s particular policy. By its very nature, the UNHCR can only function with state support and is thus highly sensitive to states’ concerns.57 These two factors coupled
together leave the UNHCR exposed and susceptible to state pressures, potentially undermining its adaptability, autonomy and coherence. The reason being that the relegation of its operations as secondary to that of the host State could lead it to act in support of an operation that is in contradiction with its mandate.
As the number of displaced persons grows ever larger, so does the strain on a host state’s resources and economy. This can stimulate a desire to repatriate the refugees to their country of origin in an effort to alleviate such demands, particularly in states in developing regions who do not want the indefinite presence of refugees on their territory.58 However, conflicts have become greatly protracted. As few refugees would be willing to return to areas of ongoing conflict and political instability, states have instead begun to subvert existing protections in place.59 While the right to temporary legal status cannot be explicitly revoked under the principle of non-refoulement 60 - which forbids the return of asylum seekers to a country where they would be in danger of persecution – the concept of voluntary repatriation has gradually been weaponised by states with large refugee populations as a measure to remove those with such status.61 Through the exertion of physical and mental pressure upon individuals to sign
54 David Kennedy, n.52, pg. 34.
55 Hsiao-Hung Pai, ‘The refugee ‘crisis’ showed Europe’s worst side to the world’ The Guardian (1 January 2020)
<https://www.theguardian.com/commentisfree/2020/jan/01/refugee-crisis-europe-mediterranean-racism-incarceration>.
56 Tamirace Fakhoury and Derya Okzul, ‘Syrian refugees’ return from Lebanon’, (2019) 62 Forced Migration
Review 26.
57 Jeff Crisp, ‘Repatriation principles under pressure’, (2019) 62 Forced Migration Review 19, 21. 58 Ibid, at 20.
59 Sarah El Deeb, ‘In Lebanon, Syrian refugees face new pressure to go home’ AP News (20 June 2019) <
https://apnews.com/0a77b3506e6d4c12a877ef059fdc4f4a>.
60 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189
UNTS 137, art. 33.
61 Martin Chulov, ‘Syrian refugees in Beirut and Istanbul detained and deported’ The Guardian (29 July 2019)
<https://www.theguardian.com/world/2019/jul/29/syrian-refugees-in-beirut-and-istanbul-detained-and-deported>.
voluntary repatriation agreements, the reality is that involuntary repatriation is taking place in large numbers today.62 Consequently, there is a plausible link between such actions by a state and the crime against humanity of deportation. As previously mentioned, the UNHCR’s operation is contingent upon and subject to the policy decisions of the host state, meaning that a decision to utilise involuntary repatriation in such a manner could draw it closer to assistance in such a crime. Having understood armed conflict as faciliatory of institutional decay, this chapter will explore the role of the UNHCR and the crime against humanity of deportation, followed by its application to a policy of enforcement of involuntary repatriation in Turkey. The UNHCR’s assistance will then be examined against the legal elements of aiding and abetting.
3.2. The role of the UNHCR in the provision of effective solutions
Following the expiration of the mandate of the International Refugee Organisation, the UN formed the UNHCR whose specific role would be the provision of international legal protection and advocacy for refugees. The 1951 Refugee Convention defines the term ‘refugee’ as an individual outside their country of nationality ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion’.63 Although originally
limited to those displaced during the Second World War, the applicability of the instrument was broadened by removing temporal limitations through the 1967 Protocol,64 allowing the UNHCR’s operations to spread around the globe. In practice however, its operations are contingent upon state cooperation and thus the institution is only as strong as states allow it to be.65
It functions not through the assertion of uniform legal standards, but through complex political negotiation and the provision of financial assistance for specific cases.66 The bifurcation
between the national political terrain on which the solutions must be found and the UNHCR’s mandate has greatly reduced its capacity to implement sophisticated solutions.67 With refugees
62 Ibid.
63 Refugee Convention n.60, art. 1(a)(2).
64 UNHCR, ‘The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol’, pg. 4 <
https://www.unhcr.org/about-us/background/4ec262df9/1951-convention-relating-status-refugees-its-1967-protocol.html>.
65 UN High Commissioner for Refugees, Self-Study Module 1: An Introduction to International Protection.
Protecting Persons of Concern to UNHCR, (UNHCR 2005), pg. 14, s. 1.4.1.
66 David Kennedy, n.52, pg. 206. 67 Ibid, at pg. 214.
becoming viewed as a ‘symbol of system overload’,68 there has been growing criticism
surrounding the UNHCR’s decision to emphasise repatriation as its principal solution.69
One frequent source of criticism concerns the view that the refugee safety may be outweighed by the interests of the host state, as the UNHCR is responsible for the assessment of whether the conditions facilitated a safe return.70 Given its reliance on the host state to continue its operations, there is potential for return to be prematurely rendered permissible to prevent the state from having to continue to support, what has been described as ‘indefinite subsistence on charity’.71 Moreover, if conditions have not improved, for example through a cessation of
hostilities or a transition in government, refugees are unlikely to voluntarily return to unsafe conditions.72 It is at this point that enforcement of repatriation by the host state can begin to overlap with the crime of forced displacement.
3.3. The crime of forced displacement
Forced displacement is recognised as a crime under customary international law, having been closely linked to deportation as a crime against humanity in the Nuremberg Charter following World War II,73 which is generally regarded as referring to displacement across a border.74 It has been frequently codified as a crime against humanity of deportation, first in Article 5(d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), although the crime was confined to one ‘committed in armed conflict’,75 while Article 3(d) of Statute of
the International Criminal Tribunal for Rwanda (ICTR) expanded its scope to include any crime of deportation ‘committed as part of a widespread and systematic attack directed against
68 Gil Loescher, ‘The UNHCR and World Politics: State Interests vs. Institutional Autonomy’, (2001) 35
International Migration Review 33, 46.
69 B. S. Chimni, n.7, at pg. 12. 70 Gil Loescher, n.68, at 47.
71 “Beyond Humanitarianism: the need for political will to resolve today’s refugee problem” - Joyce Pearce
Memorial Lecture by Mr. Jean-Pierre Hocké, United Nations High Commissioner for Refugees, Oxford University, (29 October 1986) <https://www.unhcr.org/admin/hcspeeches/3ae68fd518/beyond-humanitarianism-need-political-resolve-todays-refugee-problem-joyce.html>.
72 Frederick C. Cuny, Barry N. Stein and Pat Reed, eds., Repatriation During Conflict in Africa and Asia (Centre
for the Study in Crisis, Texas, 1992) pg. 15.
73 Charter of the International Military Tribunal, Agreement by the Government of the United Kingdom of Great
Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, (8 August 1945), 82 UNTS 284, art. 6(c).
74 Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and
Procedure (Cambridge University Press 2019), pg. 245.
75 Statute of the International Criminal Tribunal for the Former Yugoslavia, (adopted 25 May 1993), SC Res. 827
any civilian population’.76 Article 7(1)(d) Rome Statute77 follows the approach taken by the
ICTR, with Article 7(2)(d) Rome Statute further requiring that the perpetrator forcibly displaced ‘the persons concerned by expulsion or other coercive act from the area in which they are lawfully present, without grounds permitted under international law’.78
With regard to the necessary contextual elements, the crime must be committed in the context of a ‘widespread or systematic attack against any civilian population’. The drafters’ decision to use ‘any’ implies a liberal approach to defining the population,79 enabling the ‘population’
to be defined as the deportation of the refugee population within a state. The test for establishing the nature of the attack is disjunctive: it can be either ‘widespread’ or ‘systematic’. ‘Widespread’ refers to the large scale nature of the attack, as well as the number of victims, while ‘systematic’ connotes a high degree of organisation and features such as use of resources, continuous commission, planning and political objectives.80 In addition, there must be an ‘attack’, which must be part of a wider ‘course of conduct involving the multiple commission of acts’ which are committed ‘pursuant to or in furtherance of a State or organisational policy’.81 The policy element has been a controversial technical issue regarding the forms of
organisation would be permissible. The current view is that crimes committed by a group which has the capability to perform acts that infringe basic human rights would qualify as an ‘organisation’ within the policy requirement of a crime against humanity.82 Enforcement of
involuntary repatriation could be both widespread or systematic: it would be widespread if a state was able deport a large number refugees within a short time frame, while its systematic nature would be exemplified through an incremental development of the rate of repatriation. Furthermore, the attack on the refugee population would more likely be committed pursuant to a state, rather than an organisational, policy, with their presence being used as a political pawn in an effort to regain governmental support and resources.
76 Statute of the International Criminal Tribunal for Rwanda, (adopted 8 November 1994), SC Res. 995 (1994),
art. 3(d).
77 Rome Statute of the International Criminal Court, (adopted 17 July 1998, entered into force 1 July 2002), UN
Doc. A/CONF.183/13, 2187 UNTS 90, art. 7(1)(d).
78 ICC Statute, art. 7(2)(d); Prosecutor v. Stakić, Case No. IT-97-24-A, Judgment, 22 March 2006, para. 278. 79 Prosecutor v Germain Katanga (Judgment pursuant to article 74 of the Statute) ICC-01/04-01/07, 7 March
2014, para. 1103.
80 Tadić, ICTY TC II, 7 May 1997, para. 206; Nahimana et al., ICTR AC, 28 November 2007, para. 920. 81 ICC Statute, art. 7(2)(a).
82 Situation in the Republic of Kenya (Decision pursuant to Article 15 of the Rome Statute on the authorization
Furthermore, it is necessary that the perpetrator deported or forcibly transferred the population by expulsion or other coercive acts.83 The crime of deportation by definition necessitates that the displacement of persons beyond a state border84 must be forced,85 meaning that individuals are moved against their will or without a genuine connection to the state.86 Crucially, any consent that is induced by force or threat of force is not considered to be real consent.87 As will
be discussed in the following section, the voluntary repatriation agreement is a contemporary example of this. Its original purpose provided individuals the right to voluntarily return to their country of origin.88 However, there are now repeated reports of individuals providing their
signatures under duress under threats of indefinite imprisonment.89 Such actions by individuals within a state would render them liable for the crime against humanity of deportation.
The next requirement of lawful presence of individuals on the territory of the implicated state ‘is intended to exclude only those situations where the individuals are occupying houses or premises unlawfully or illegally and not to impose a requirement for residency’.90 This seems
to suggest a more liberal threshold of lawful presence; something that a refugee provided with legal temporary residence by the host state would fulfil. In addition, their deportation must be conducted without grounds permitted under international law. This element refers to the power of states to “restrict the freedom of nationals and aliens who are lawfully present”91 to move
within their territory.92 For example, a government would not be able to undermine lawful presence by means of an arbitrary legislative act declaring the unlawful presence of members of a group.93
Lastly, the relevant mental element requires that ‘the perpetrator was aware of the factual circumstances that established the lawfulness of such presence’94 and they ‘knew the conduct
was part of or intended the conduct to be part of a widespread attack directed against a civilian
83 International Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000), art. 7(1)(d),
para. 1.
84 Stakić, n.78, paras. 276-308.
85 ICC Statute, art. 7(2)(d); Krstić, ICTY TC I, 2 August 2001, para. 528.
86 Prosecutor v Milorad Krnojelac (Judgment) IT-97-25-A, 7 September 2003, paras 229 and 233. 87 Ibid, para. 229.
88 Sample Tripartite Voluntary Repatriation Agreement (UNHCR) <https://www.unhcr.org/50aa07929.pdf>. 89 Chulov, n.61.
90 Prosecutor v Vujadin Popović et al (Judgment) IT-05-88-T, 10 June 2010, para. 900.
91 Otto Triffterer ‘Article 7’ in Commentary on the Rome Statute of the International Criminal Court (2nd ed, Hart
2008).
92 UNHCR, ‘Forced Displacement and International Crimes’ (June 2011) PPLA/2011/05. 93 Robert Cryer, Darryl Robinson and Sergey Vasiliev, n.74, at pg. 246.
population’.95 By reference to the relocation of a refugee population, this would entail that the
authorities within the host state were aware of the grant of temporary legal residency and that any enforcement of involuntary repatriation would constitute an attack directed against that particular population.
3.4. Forced displacement in Turkey
Following recent announcements by the Turkish government of plans to create a ‘safe-zone’,96
it designated as one of its core aims the plan to relocate most of its 3.6 million refugees to this new location. Although Turkey insists that it is simply assisting Syrians who choose to voluntarily return to their country,97 there is clear evidence that they are ‘threatening to lock them up until they agree to return, forcing them to sign forms and dumping them in a war zone’, which is ‘neither voluntary nor legal’.98 Naturally, all repatriations are illegal due to the severity
of the danger and human rights risks that exist in an active warzone, with those who have returned have indeed been directly exposed to such dangers.99 The whirlwind deportation process involves the targeting of refugees by immigration authorities, who detain them without communication with family or lawyers, until they relent and sign papers stating their desire to “voluntarily” return to Syria.100 With more than 1,000 refugees being detained every few
days,101 such actions exemplify the use of law enforcement resources for the systematic commission of an attack against this particular segment of the civilian population. Furthermore, their removal is clearly taking place under extreme distress through the denial of legal counsel, as well as threats of force and indefinite imprisonment.102 This systematic deportation is the result of a state policy, as the Turkish government has made abundantly clear their desire to establish this ‘safe-zone’ as the new residence for the relocated refugees. Such relocation is naturally impermissible under international law, as the temporary legal residence provided to
95 Ibid, art. 7(1)(d), para. 5.
96 Colum Lynch, Lara Seligman, ‘Turkey Pitches Plan to Settle 1 Million Refugees in Northern Syria’ Foreign
Policy (18 December 2019)
<https://foreignpolicy.com/2019/12/18/turkey-pitches-plan-settle-1-million-refugees-northern-syria-erdogan-kurds/>.
97 ‘Turkey’s Illegal Deportation of Syrian Refugees’ Amnesty International (25/10/2019), pg. 5
<https://www.amnesty.org/download/Documents/EUR4411022019ENGLISH.pdf>.
98 Emma Wallis, ‘Deadline extended in Turkey for unregistered Syrian refugees’ Infomigrants (21 August 2019)
https://www.infomigrants.net/en/post/18971/deadline-extended-in-turkey-for-unregistered-syrian-refugees>.
99 Amnesty International, n.97, pg. 6.
100 Shawn Carrié and Asmaa Al-Omar, ‘UN stands by as Turkey deports vulnerable Syrians’ The Guardian (23
August 2019) <https://www.theguardian.com/global-development/2019/aug/23/its-not-legal-un-stands-by-as-turkey-deports-vulnerable-syrians#img-1>.
101 Chulov, n.61. 102 Emma Wallis, n.98.
them by the Turkish government renders them lawfully present within the state.103 The requisite
mens rea is also present, again through the knowledge of granting temporary legal residence
and a clear political decision to relocate those currently lawfully residing on its territory. There are thus strong reasons to believe that such actions by Turkey are indicative of a crime against humanity of deportation.
Regardless, the UNHCR has said that it will continue to work closely with Turkey to engage over its plan to resettle refugees back across its southern border,104 forming a team to study the
proposal and engage in discussions with authorities.105 It appears that this display of close cooperation is a result of the working practices that the UNHCR has developed to enable it to function at its fullest capacity within a host state. When considered in relation to the propagation of repatriation as its primary solution, it is difficult to see how, under the existing circumstances, the institution is adhering to its mandate that return must be ‘voluntary, safe and dignified’. As discussed in the preceding chapter, armed conflict can seriously compromise the functioning of an international institution by undermining its ‘raison d’être’106 and weaken its commitments to established functional norms and identity. The present danger is that the UNHCR could get involved too extensively in Turkey’s plans, facilitating the relocations to the degree that it could render its cooperation as assistance in the commission of the crime against humanity of deportation.
3.5. Aiding and abetting
The existence of liability for aiding and abetting in international crimes has its roots in the Nuremberg trials in the aftermath of World War II107 and was consequently recognised in Article 7(1) ICTY,108 Article 6(1) ICTR109 and Article 6(1) in the Statute for the Special Court
of Sierra Leone (SCSL).110 These all provided for criminal responsibility of ‘a person…who
103 Amnesty International, n.97, pg. 5.
104 ‘UN to engage with Turkey over refugee resettlement’ AA (11 January 2019)
<https://www.aa.com.tr/en/turkey/un-to-engage-with-turkey-over-refugee-resettlement/1633238>.
105 Readout of the Secretary-General’s Meeting with H.E. Mr Recep Tayyip Erdogan, President of Turkey (01
November 2019)
<https://www.un.org/sg/en/content/sg/readout/2019-11-01/readout-of-the-secretary-general%E2%80%99s-meeting-he-mr-recep-tayyip-erdogan-president-of-turkey>.
106 Mette Eilstrup-Sangiovanni, n.13, at 342. 107 Nuremberg Charter, n.73, art. 6.
108 ICTY Statute, n.75, art. 7(1). 109 ICTR Statute, n.76, art. 6(1).
aided and abetted in the planning, preparation or execution’ of a crime. The Tadić appeal judgment of 1999 identified the elements of the crime of aiding and abetting, initially outlining that the aider and abettor ‘carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime’ and ‘this support has a substantial effect upon the perpetration of the crime’. The requisite mental element is ‘knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal’;111 although ‘awareness…of the essential elements of the crime committed by the
principal would suffice’.112
The ICTY jurisprudence also expands on the concept of ‘substantial effect’, requiring it to be anything more than de minimis.113 Moreover, the factual effect of the conduct must also result in the assistance of the criminal act.114 The SCSL later clarified that there was never a requirement that assistance must be provided in any particular manner. The conduct does not need to be criminal itself, as long as its factual effect results in the assistance of the criminal act.115 The provision of the assistance may occur at any time before, during or after the commission of the crime, while the International Criminal Court (ICC) only requires that the assistance be for the purpose of facilitating the commission of the offence. The concept of ‘purpose’ is reminiscent of the Perišić116 requirement at the ICTY that the accomplice must
have ‘specifically directed their assistance towards the perpetration of the specific crime’. However this ruling was quickly rejected and consequently overruled in Šainović et al. at the ICTY and in Taylor at the SCSL.117 Furthermore, both the ICC and the ad hoc Tribunals uphold that being present at the scene of a crime “as a ‘silent spectator’ can be construed as tacit approval” of the crime.118 Additionally, omissions may be sufficient for liability if the
defendant has an obligation to prevent the crime and has the ability to intervene.119
Article 25(3)(c) Rome Statute takes a slightly different approach to aiding and abetting, defining it in the following terms: ‘for the purpose of facilitating the commission of such a
111 Tadić, ICTY AC, 15 July 1999, para. 229. 112 Ibid, at para. 164.
113 Robert Cryer, Darryl Robinson and Sergey Vasiliev, n.74, pg. 356. 114 Taylor, SCSL AC, 26 September 2013, para. 395.
115 Ibid, at para. 371.
116 Perišić, ICTY AC, 28 February 2013, paras. 38-40.
117 Šainović et al., ICTY AC, 23 January 2004, paras. 1617-50; Taylor, SCSL AC, 26 September 2013, paras.
716-20.
118 Bemba et al., ICC TC VII, 19 October 2016 (ICC-01/05-01/12-1989-Red), para. 89. 119 Orić, ICTY TC II, 30 June 2006, para. 283.
crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission’. ICC jurisprudence has elaborated further, explaining that it ‘implies practical and material assistance’120 and does not require that any specific
threshold be met.121 The relevant mental element is that the accomplice’s conduct was ‘for the purpose’ of assisting a crime. Scholars present during the drafting of the Rome Statute have suggested that ‘purpose’ simply implies a de minimis element of ‘acting in a manner that has the consequence of facilitating the commission of crimes’122 and in practice, ‘purpose’ will be
deduced from the acts of the accused.123 The main differences between this definition and that
of the ad hoc Tribunals’ is that there is no requirement that the accessory’s conduct has a substantial effect on the crime and that the relevant mens rea requirement sets a higher threshold than knowledge.
3.5.1. Assistance in the crime against humanity of deportation in Turkey
By acting as an intermediary in the negotiations, the UNHCR’s tacit approval of the process is apparent. There is no objective and explicit rejection of the relocation of the refugees that the Turkish government is beginning to undertake, nor any evidence of hesitation on the part of the UNHCR to participate in the negotiations. By actively engaging with Turkey over its resettlement plan, the UNHCR is failing to adhere to its mandate that return must be ‘voluntary, safe and dignified’. Such deviation from its established identity and principles exemplifies ‘otherwise assist[ing]’124 in the principal crime, for without the UNHCR’s support and
involvement, the relocation plans would not have achieved the legitimacy necessary to enable them to progress forwards.
For this reason, it is possible to argue that such acts indicate acting ‘for the purpose’ of facilitating the commission of a crime, as their natural consequence is the facilitation of the principal crime of deportation. It is not necessary that the UNHCR engaged in negotiations for the purpose of facilitation; the element of ‘purpose’ could be inferred from the political and
120 Bemba et al., n.118, para. 88. 121 Ibid, at para. 93.
122 David Scheffer and Caroline Kaeb, ‘The Five Levels of CSR Compliance: The Resiliency of Corporate
Liability under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory, (2011) 29 Berkeley Journal of International Law 349, 357.
123 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., OUP
2016).
humanitarian repercussions of returning refugees to a country that lacks sustainable livelihood opportunities and even access to basic public services.125 As the leading institution for refugee affairs, it would be implausible to deny its knowledge that the likely consequences of such explicit support of, and engagement with, the Turkish government would result in the forcible return of refugees to Syria.
3.6. Conclusion
There appears to be a contemporary link between the work and purpose of the UNHCR and the crime of forced displacement, as the object of the systematic attack pursuant to a state policy are refugee populations who are being forcibly removed from their host country during an ongoing period of armed conflict. It is exactly against such forms of forced displacement that the UNHCR was created to protect refugee populations from. However, the current operation of the institution relies heavily on cooperation of the host state at the expense of the UNHCR’s ability to create its own effective and durable solutions, and at times it is able to do nothing more than acquiesce to national policies. Considering whether the enforcement of involuntary repatriations in Turkey could amount to the crime against humanity of deportation, it is clear that, being conducted under duress, it fulfils the elements of the crime. Particularly vital is the facilitation of negotiations by the UNHCR, which appears ostensibly amiable to Turkish plans to resettle the refugee population.
4. Impact of complicity upon the institutional strength of the UNHCR.
4.1. Introduction
The role of the UNHCR, as well as its heavy reliance on political negotiation and technical assistance in specific cases, makes it particularly susceptible to state influence over its functioning.126 Deep reliance on a host state presents a danger of potentially implicating the
institution in any international crimes committed by the host state. The claim that the UNHCR has chosen to err on the side of preserving its reputation for legal neutrality, thus choosing to
125 Zeynep Sahin Mencutek, ‘Encouraging Syrian return: Turkey’s fragmented approach’ (2019) 62 Forced
Migration Review 28, 30.
distance itself from actively participating in solutions,127 is outdated as this chapter will demonstrate. Having prioritised the maintenance of good relations with governments to able to continue operating its projects on their territory128, the institution is facing accusations of violating the fundamental principle of non-refoulement. This approach inhibits the adaptability, autonomy and coherence of the institution, providing a foundation for its decay. As decay is a gradual process, it is necessary to examine the development of the policy of enforcement of involuntary repatriation to better understand how such a split between its mandate and the political context within which it operates greatly diminishes the institution’s strength and capacity to provide effective solutions. This chapter will examine two further cases against the legal elements of aiding and abetting to determine the existence of a pattern of deviation from its mandate and principles to establish the existence of decay, followed by an analysis of the relationship between complicity and institutional decay.
4.2. Past as a prologue
The Statute of the UNHCR emphasises that ‘the work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule, to groups or categories of refugees’.129 In the past two decades, the environment in which the
institution operates has evolved drastically, as has the work it carries out.130 In an effort to demonstrate its usefulness to the UN member states,131 the UNHCR has set as its prime objective the return of as many refugees as possible.132 During the mid-1980s, the UNHCR ‘transmogrified from the international community’s leading agency for protecting refugees into its spearhead for containing or reversing refugee flows’.133 With states having begun to
demonstrate ‘refugee fatigue’ and demanding their return at the earliest possible opportunity, the UNHCR was strongly encouraged to support repatriation as the preferred solution.134
127 Ibid, at pg. 215.
128 Shawn Carrié and Asmaa Al-Omar, n.100.
129 Statute of the Office of the High Commissioner for Refugees, UN GA Res. 428 (1950), chap. 1, para. 2. 130 Gil Loescher, n.68, at 33.
131 Jeff Crisp, n.57, 21.
132 Poppy McPherson, Zeba Siddiqui, ‘Secret U.N.-Myanmar deal on Rohingya offers no guarantee of citizenship’
(29/06/2018) <https://www.reuters.com/article/us-myanmar-rohingya-idUSKBN1JP2PF>.
133 Andrew Bruce Kendle, ‘Protecting whom? The UNHCR in Sri Lanka, 1987-1997’, (1998) 87 The Round Table
521, 522.
134 Michael Barnett, ‘Humanitarianism with a Sovereign Face: UNHCR in the Global Undertow (2001) 35
However, this culture creates more permissive conditions; a related danger being that the UNHCR could become ‘complicit with a strategy of containment’.135
4.2.1. Bangladesh/Myanmar
The first example of the new policy preference for repatriation is the forced return of the Burmese Muslim minority, the Rohingya, to Myanmar, with around 230,000 Rohingya repatriated between 1992 and 1997. Between 1978 and 1991, more than a quarter of a million refugees fled to Bangladesh from persecution and human rights abuses by the Burmese military government.136 However Bangladesh viewed their stay as a short-term problem, swiftly resolving the issue within sixteen months.137 During this time, the UNHCR assisted in their repatriation despite ‘reports of Bangladesh officials using threats, intimidation, physical abuse, and withholding food rations to coerce refuges to ‘repatriate voluntarily’.138 In a clear shift in
policy, the UNHCR transitioned to promotion sessions for repatriation and massive registrations of refugees, leading to allegations of a lack of access to extensive and proper information on their right to refuse repatriation and of any fundamental change in the situation in Myanmar.139 The institution also seemed to accept the Burmese government’s position that the Rohingya Muslims were not entitled to citizenship upon return; a decision which has undoubtedly laid the foundations for present day expulsions.140
By seemingly blurring the negative impact of its transition in activities and orientation, the institution appeared to suggest that these were positive developments despite an underlying erosion in protection.141 This action arguably provided the means for commission, as the
authority of the UNHCR aided the government by diminishing the realities of the existing situation, meaning repatriation could no longer be a free and well-informed decision. Their aid can also be found in the material assistance provided in the form of promotion sessions and
135 Ibid, at 246.
136 Refugees International, ‘Bangladesh: Burmese Rohingya refugees virtual hostages’, (09/05/2005)
<https://reliefweb.int/report/myanmar/bangladesh-burmese-rohingya-refugees-virtual-hostages>.
137 C. R. Abrar ‘Repatriation of the Rohingya Refugees’, (1995) Regional Consultation on Refugee and Migratory
Movements 1.
138 Gil Loescher, n.68, at 48.
139 Human Rights Watch, ‘The Rohingya Muslims: Ending a Cycle of Exodus?’, (1996) 8 Human Rights Watch
1.
140 Poppy McPherson, Zeba Siddiqui, n.132.
141 Michael Barutciski, ‘Involuntary Repatriation when Refugee Protection is no Longer Necessary: Moving
Forward after the 48th Session of the Executive Committee’, (1998) 10 International Journal of Refugee Law 236,
registrations: a valuable resource without which the Bangladeshi government would have struggled to undertake the mass repatriation at the pace and scale that they achieved with the UNHCR’s support, fulfilling the actus reus requirement in Article 25(3)(c) Rome Statute.
This support also provides an insight into the requirement that the institution acted ‘for the purpose’ of facilitating the commission of the offence. By failing to achieve the right to citizenship – arguably a fundamental right for any national of a state – for the persecuted minority in anticipation of their eventual return to their country of origin, it demonstrates a total failure to protect the interests of the vulnerable group under the UNHCR’s mandated supervision. It is therefore difficult to argue that the institution was not acting in assistance for the Bangladeshi government. The reason was both the UNHCR’s staunch support for repatriation of the refugees, as well as a lack of any attempt to secure their rights upon return. When assessed together, it arguably indicates that they acted for the purpose of assisting in the involuntary repatriation of the refugees from Bangladesh.
4.2.2. Tanzania/Rwanda
The case of the repatriation of Rwandese refugees from Tanzania offers another clear example of the changing priorities of the UNHCR as a result of its increasing sensitivity to the needs of the host state. In the aftermath of the 1994 genocide, over half a million Rwandese refugees had crossed into Tanzania before the government closed its borders in 1996.142 The movement of people had been enormous and dramatic, with hundreds of thousands seeking refuge at the beginning of crisis in April 1994.143 The swift abandonment of Tanzania’s open-door policy
has been described as ‘unfortunate but understandable’ in light of the absence of burden-sharing with other states and its ranking as among the poorest countries in the world.144 Here,
as in other situations, the UNHCR was faced with a choice between adherence to its mandate to protect refugees and the political situation in Tanzania. Although claiming to pursue the course of action that ‘nevertheless appeared to be in the best interests of the refugees concerned’,145 the institution provided both logistical and financial assistance to the
142 Beth Elise Walker, ‘Changing Priorities in Refugee Protection: The Rwandan Repatriation from Tanzania’,
(2002) Refugee Survey Quarterly 328.
143 Bonaventure Rutinwa, ‘The Tanzanian Government’s Response to the Rwandan Emergency’, (1996) 9 Journal
of Refugee Studies 291, 295.
144 B.S. Chimni, n.7, pg. 12.
145 United Nations High Commissioner for Refugees, The State of the World’s Refugees: A Humanitarian Agenda,
