Burma: the basics & Who is a refuge

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Diakonia
Issue 44, April 1998
Jesuit Refugee Service Asia Pacific


Burma: the basics

Constant developments inside and outside Burma make it difficult to remember
the core issues. Director of the JRS Burma Project, David Townsend S J
writes an overview of the situation of refugees from Burma in Thailand.

SINCE THE FIRST REFUGEES crossed from Burma into Thailand 15 years ago,
UNHCR have not been allowed a role on the border the two countries share.
The Royal Thai Government (RTG) did not want to recreate a similar situation
to that which had grown up on the Cambodian border with the Khmer refugees:
a refugee growth industry with many expatriate NGO workers providing a range
of assistance. The Cambodian camps gave residents formal and non-formal
education, skills and vocational training, and income-generating programmer,
greatly outstripping what was made available by the RTG to local Thai villagers.

It is now 1998 and refugees are still in camps strung along the border with
Burma.
Some - the Mon people - are now 'repatriated' across the border, but
continue to live in camps in areas protected by a cease-fire agreement with
the military government in Rangoon and the New Mon State Party. They still
fear returning to their original homes because of the continuing human
rights abuses by the Burmese military, including forced relocation and
forced labour, both of which make a sustainable livelihood for subsistence
farmers well nigh impossible.

Others, including some 95,000 Karen, remain on the Thai side strung along
several hundred miles of the border. The Burmese military now control almost
all of the border in these areas for the first time in history and the local
Karen peoples are treated as hostile enemy. Often without warning their
villages come under mortar and rifle attack. Their lives are at peril, their
property looted, their fields, food stores, and animals are requisitioned or
destroyed. Such attacks may be the first they know that they have to
relocate. All other areas are designated 'free-fire' zones where any person
found will be shot out of hand.

The relocated villagers are used as slave labour. They are forced to work,
without pay and often having to supply their own food, at the behest of the
military as porters for munitions and supplies, as human mine sweepers, in
construction of roads, railways, and barracks. With the Karen opposition
forces losing most of the land they once held, the first 6 months of 1997
saw a greater influx of Karen refugees into Thailand than in any other
previous 6-month period.

Moving further north around the top of Thailand things become more difficult
for people fleeing from the aggressions of the Burmese military. Those from
Shan State are not allowed to seek sanctuary and live in designated camps
where they can be assisted by NGOs, like the Karen and Karenni peoples in
the camps to the south. These people, when caught, are treated as illegals
seeking work in Thailand, and detained until they are deported back to the
border. It is recently estimated that some 300,000 people have been affected
by the Burmese military's village relocations in this area of Burma.

IN THE SECOND HALF of 1997 Thailand was hit by the collapse of its economy.
The Baht fell against the US dollar from 25:1 to as low as 57:1. At the time
of writing it is 40:1. This has added to the dual desire of the various RTG
agencies, including the Army, to both prevent more people entering Thailand
and to send as many as possible already in Thailand back across the border.
At particular risk are people fleeing human rights abuses in their homelands
on the Burma side of the border. Official Thai policy for asylum is very
narrow, far narrower than that of the 1951 UN Convention regarding the
Status of Refugees, and its 1967 Protocol. Ironically despite the fact that
Thailand is not a signatory to the 1951 Convention, and despite its own
extremely narrow policy regarding asylum, Thailand sits on the Executive
Council of the UNHCR deciding protection and other policy issues for that body.

Thai policy is to allow temporary shelter only for people fleeing fighting.
Fighting is narrowly understood as 'armed clashes between opposing armed
forces'. Thai policy does not admit that unprovoked and sudden bombardment
of unarmed civilian villages, the indiscriminate killing of unarmed
villagers or any of the other attendant cruel and inhuman treatments of the
people falls under the definition of 'fighting'.   
? David Townsend SJ

 - - - - - - - - - - - 
Who is a refugee?

The role of UNHCR

*	A lack of consistency between different UNHCR offices in the procedures
used for determining refugee status.
*	UNHCR does not publish clear guidelines or rules on procedures to be followed.
*	UNHCR does not permit lawyers or other advisers to be present at interviews.
*	Asylum seekers are not permitted access to their files, or to have copies
of material on their files.
*	Decisions are sometimes made on the basis of internal UNHCR reports, which
are not publicly available and thus not available to the asylum seeker.
*	Interview notes are not usually read back to asylum seekers, nor are they
given a transcript of the interview.
*	When a decision is made to reject an application, UNHCR does not provide
written reasons. In some locations reasons are given orally if requested. In
other locations reasons are not given at all.
*	Although asylum seekers are given a right to appeal against rejection,
there is no independent appeal body. Appeals are decided within UNHCR,
usually within the same office.

Being granted protection by a country or the international community is a
sometimes complex and difficult task. Michael Alexander outlines how refugee
status is determined and suggests ways in which the system adopted by the
United Nations High Commissioner for Refugees could be improved.

WHEN XIU FANG FLED PERSECUTION in China, he sought safety in Thailand.
Because he did not have a passport, he avoided going through immigration
checkpoints at the border. However, as asylum seekers do in most other
countries, he approached officers of the government as soon as he reached a
big town. This was a reasonable thing to do, he thought, as he knew that
Thailand was a democratic country. He wanted to tell his story, expecting to
receive a sympathetic response after all the hardship he had endured. He was
disappointed. He was put in the police cells for four months, until he
managed to escape.
 
The police cannot be criticised?they were only carrying out their duty under
Thai law. Thailand's immigration law does not contain any mention of
refugees. In the eyes of the government officers who heard Xiu Fang's story,
he was a foreigner without a passport or visa. He was an illegal immigrant,
and he was treated in the same way as other illegal immigrants, most of whom
come to Thailand seeking work opportunities.

Xiu Fang's experience highlights one of the biggest problems facing refugees
in Thailand, and in many other countries in this region:  governments do not
recognise refugees, do not want to recognise them, and have no laws or
mechanisms for recognising them.

In most parts of the world, when a person seeks recognition and protection
as a refugee, it is the government of the country which decides whether or
not to give protection. Those countries have immigration laws which set out
the definition of a refugee, the rights of refugees, and the process to be
followed in deciding whether or not someone is a refugee.
Governments must make these refugee status determinations in accordance with
international conventions which they have signed. Governments have willingly
accepted legally binding obligations to give protection to refugees. The
most important of these is the 1951Convention Relating to the Status of
Refugees. There are also regional conventions and agreements in Africa,
Europe, and the Americas.

In the Asia-Pacific region, where we work, very few governments have signed
the 1951 refugee convention. And there is no regional convention. Because of
this, refugees in this part of the world do not have the protection of
international law to the same extent as those in other regions.

The office of the United Nations High Commissioner for Refugees (UNHCR) was
set up by the General Assembly of the UN in order to provide international
protection to refugees. One of the activities which UNHCR undertakes is the
determination of refugee status in many countries where governments fail to
do this. This activity usually takes place in countries which have not
signed the refugee convention (such as Thailand, Malaysia, and Indonesia).
It also takes place in countries which have signed the refugee convention,
but have failed to set up their own refugee status determination procedures
(such as Cambodia and the Philippines).

Asylum seekers in these countries approach UNHCR for recognition. If they
are successful, UNHCR will usually issue a certificate of recognition as a
refugee, or in some cases as a person of concern to UNHCR. If the person is
in financial need, UNHCR will usually provide some form of financial
assistance, and access to medical assistance. In some Asian countries,
recognition by UNHCR means that the person can remain living there legally.
In other countries, such as Thailand, refugees remain illegal, although in
practice the authorities will usually not detail or deport people who are
recognized as refugees by UNHCR. However they do not have permission to
work, and their children do not have access to government schools.

Advising and helping people through the process of status determination is
an important part of JRS work with asylum seekers. Because of this, JRS has
had considerable contact with the staff of UNHCR, and exposure to UNHCR's
policies and practices in relation to refugee status determination. For many
years JRS has employed a lawyer in its Bangkok office, and a lawyer is also
employed in Phnom Penh. Much of the work focuses on advice and assistance to
asylum seekers in their dealings with UNHCR. JRS is therefore in a unique
position to observe and comment on UNHCRs practices.

Refugee law is a relatively new area, but one which is rapidly growing both
as an area of specialization for practicing lawyers, and also as a field of
academic endeavour. Most refugee lawyers work for governments or for UNHCR,
or represent asylum seekers seeking recognition by the governments of the
countries where they practice. There are university courses in refugee law,
regular conferences, and an International Journal of Refugee Law. In all
this endeavour, though, it seems that relatively little attention has been
paid to the area which most directly affects our clients?the refugee status
determination procedures conducted by UNHCR.

OVER THE YEARS, JRS has identified a number of problems with the way UNHCR
carries out refugee status determination. (see points above)

Asylum seekers, particularly those who are rejected, are often bewildered by
the procedures followed by UNHCR. Fleeing from unjust and arbitrary regimes,
they have great expectations of the United Nations body who they see as
their protector. They feel betrayed and often bitter about the perceived
lack of justice they receive from UNHCR. Sometimes these feelings may result
from unrealistic expectations of UNHCR's capacities, or of a lack of
understanding of the relatively narrow refugee definition which UNHCR is
bound to apply. However their perceptions of UNHCRs procedural inadequacies
are not without foundation.

It should be emphasised that JRS generally enjoys excellent relations with
the officers of UNHCR who are engaged in refugee status determination. The
problems identified relate to the institutional framework in which they
operate, and do not reflect on the professionalism, integrity or commitment
of UNHCR staff. UNHCR protection officers have a very heavy workload,
covering a multitude of responsibilities, of which refugee status
determination is in some cases only a small part. They are often involved in
missions to camps, or other border areas, and refugee-producing-countries,
organising and monitoring voluntary repatriations, negotiating with
governments, and promoting acceptance of the refugee convention and refugee
law. JRS would like to see UNHCR devote more staff resources to the
important task of refugee status determination.

As well as advocating on behalf of individual clients with UNHCR, JRS also
sees the importance of advocating for institutional policy change. A JRS
report on refugee status determination in Thailand, containing a number of
recommendations for improvement, was presented to UNHCR Bangkok in 1997.
UNHCR headquarters in Geneva is working on a review of guidelines for UNHCR
refugee status determination, and JRS has been offered the opportunity of
giving input to this review. JRS is continuing its policy work in the hope
of bringing about positive change in the refugee status determination
procedures of UNHCR. 

Michael Alexander is JRS Asia Pacific's Regional Legal Officer  

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