Forced Displacements: Whose Needs Are Right?

Forced Displacement

Also by Lyla Mehta THE POLITICS AND POETICS OF WATER: Naturalising Scarcity in Western India DISPLACED BY DEVELOPMENT: Confronting Marginalisation and Gender Injustice

Forced Displacement Why Rights Matter Edited by

Katarzyna Grabska Institute of Development Studies, University of Sussex, UK

and

Lyla Mehta Institute of Development Studies, University of Sussex, UK

Selection and editorial matter © K. Grabska and L. Mehta 2008 Chapters © their authors 2008 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2008 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN-13: 978–0–230–52225–1 hardback ISBN-10: 0–230–52225–4 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Forced displacement : why rights matter / edited by Katarzyna Grabska, Lyla Mehta. p. cm. Includes bibliographical references and index. ISBN 978–0–230–52225–1 (alk. paper) 1. Refugees—Civil rights. 2. Forced migration. 3. Emigration and immigration. 4. Migration, Internal. 5. Economic development—Social aspects. I. Grabska, Katarzyna, 1973– II. Mehta, Lyla. JV6346.F67 2008 325—dc22 2008020586 10 9 8 7 6 5 4 3 2 1 17 16 15 14 13 12 11 10 09 08 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents

List of Tables and Figures

vii

Acknowledgements

viii

Notes on the Contributors

xi

List of Acronyms

xiv

1

Introduction Katarzyna Grabska and Lyla Mehta

2

Protection and Durable Solutions: Regimes for Development and Conflict-Induced Internally Displaced and Resettled Populations Robert Muggah

3

4

5

6

7

1

26

Rights and Development-Induced Displacement: Risk Management or Social Protection? Behrooz Morvaridi

50

Brothers or Poor Cousins? Rights, Policies and the Well-being of Refugees in Egypt Katarzyna Grabska

71

Refugees or Foreigners? The Case of Palestinians in Lebanon Jaber Suleiman

93

Access to Economic and Social Rights in First Countries of Asylum and Repatriation: a Case Study of Eritrean Refugees in Sudan Gaim Kibreab Rights and Decisions to Return: Internally Displaced Persons in Post-war Sudan Munzoul Assal v

116

139

vi Contents

8

9

10

11

12

Rights, Needs and Responsibility: Challenges to Rights-Based Advocacy for Refugees’ Health and Education in Lebanon Samira Trad and Michael Kagan Indigenous Peoples, Displacement Through ‘Development’ and Rights Violations: the Case of the Orang Asli of Peninsular Malaysia Carol Yong Ooi Lin

159

178

Why are Human Rights Violated with Impunity? Forced Displacement in India’s Narmada Valley Lyla Mehta

201

Protests Against the UNHCR to Achieve Rights: Some Reflections Barbara Harrell-Bond

222

Afterword: the Politics of Rights Katarzyna Grabska and Lyla Mehta

Index

244

247

List of Tables and Figures

Tables 2.1 Regime principles, norms, rules and decision-making procedures 6.1 Ethnic distribution of self-returned refugees by heads of families and Awraja (district), 1989−1995 6.2 Ethnic distribution of PROFERI returnee family heads by Awraja (district), 1989−1995 6.3 Distribution of returnee family heads by year of exile 7.1 Estimated population of the four IDP camps in 2004 (HAC)

30 128 129 131 148

Figures 5.1 Areas of origin and patterns of flight of Palestinian refugees in 1948 5.2 Palestinian refugee camps in Lebanon

vii

97 99

Acknowledgements

The idea for this book emerged in October 2004 when researchers, including many of those contributing to this volume, came together in Cairo, Egypt, for a workshop organized by the Forced Migration and Refugee Studies (FMRS) at The American University in Cairo and the Institute of Development Studies, University of Sussex, UK. The workshop kicked off an area of research on rights and forced migration, one of the research themes of the Development Research Centre (DRC) on Migration, Globalization and Poverty at the University of Sussex.1 The aim of this theme was to consider in depth the variety of ways in which forced migrants themselves seek to minimize the costs and vulnerabilities associated with forced displacement, whilst also maximizing any benefits that might be associated with being in new places. In particular, the research also focused on the way in which forced migrants view policies developed for or towards them, and seek to mobilize actual or potential rights in the context of different institutional responses. The research considered a range of displaced groups (e.g. refugees, conflictinduced internally displaced persons and ‘oustees’, those forcibly displaced by the development or conservation initiatives of the state). It was hoped that such an analysis would contribute to understanding the dynamics of forced migration, and especially of the onward displacement that is often associated with initial forced relocation. Furthermore, the research sought to evaluate the policy frameworks and categories that determine the status of refugees and oustees and what they are entitled to claim and have rights to, and the value of rights-based approaches in forced migration that seek to award agency to forced migrants as makers and shapers of their lifeworlds. This research was initiated by Lyla Mehta of the Institute of Development Studies (UK) and Hania Sholkamy at The American University in Cairo and DRC coordinator at the Forced Migration Refugee Studies (FMRS). In October 2004, Katarzyna (Kasia) Grabska took over the DRC research coordination at FMRS and together with Lyla Mehta coordinated the research and the production of this volume. At the workshop in Cairo, together with colleagues from Bangladesh, Lebanon, India, Malaysia, Sudan, Egypt and the UK, we designed the framework for research for several case studies on displacement situations carried out by DRC partners in Egypt, Ghana, Lebanon, Sudan and Bangladesh. These studies were the basis for this edited volume. A DRC working paper entitled ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-Based Approaches in Forced Migration’ provided the theoretical and viii

Acknowledgements ix

conceptual basis for the research and this edited volume (Mehta and Gupte 2003). In order to broaden the scope of the book, experts and long-term advocates of rights for displaced populations were invited to contribute chapters, including Barbara Harrell-Bond, Gaim Kibreab, Behrooz Morvaridi and Robert Muggah. Two other workshops took place leading to the preparation of the volume: in October 2005, researchers from the Middle East met in Cairo to discuss their DRC funded projects and in April 2006, a writeshop organized by FMRS in Ain Sukhna, Egypt, allowed contributors to meet and finalize ideas for the edited volume. This book would not have been possible without the encouragement and assistance of many individuals and organizations. Our warm thanks go to Richard Black, Director of the DRC and the Centre for Migration Research at the University of Sussex and to Meera Warrier, DRC research manager, for their engagement and support throughout the research and writing process. We also thank Jaideep Gupte who, together with Mehta, developed the conceptual framework which constituted the starting point for the research and this book; Sarah Sadek and Rebecca Napier-Moore, research assistants at FMRS and IDS respectively, who provided valuable research assistance and logistical support through the research and book preparation processes; Kirsty Milward for her meticulous copy editing and excellent suggestions; FMRS staff for providing invaluable support to the coordination of the DRC research projects and for hosting the workshops and meetings; the US Committee for Refugees for providing copyright for one of the chapters; Barbara Harrell-Bond for her support and advice; and John Anarfi and Chowdhury Abrar who participated in the initial workshops but could not ultimately be a part of this book project. We are most grateful to all the researchers and contributors who devoted time and energy to the research and writing of their chapters. Their participation in the workshops and insights made this project possible. We thank them for their patience in responding to our many queries. We also express our gratitude to the Department for International Development (DFID) which through the DRC supported the research commissioned for this project. We would also like to acknowledge the influence that the DFID funded Development Research Centre on Citizenship, Participation and Accoutability at IDS (where Mehta is a researcher) has had on our ideas around rights and citizenship in forced migration. We would like to thank Mahmoud Darmish for allowing us to use his poem, and Gilbert Martin and Oxford University Press for their permission to reproduce Figure 5.1, from the Atlas of the Arab Israeli Conflict (1993). We thank our partners Karim Amer and Morten Sjaastad for their encouragement and understanding as we finalized this volume. There are many more people who have contributed to and supported the making of this book. If we have failed to mention their names, they can be assured that their work and commitment have been recognized and highly appreciated. In particular, we would like to express our deepest gratitude to the displaced

x Acknowledgements

persons who decided to share their stories with us and whose insights and experiences constitute the basis and the content of this book. We also would like to thank Philippa Grand, Hazel Woodbridge and Olivia Middleton at Palgrave Macmillan for their interest and support and the anonymous referees who provided comments and suggestions. All responsibility for errors and omissions in the book rest with us, the editors of the volume. We hope this volume will be an inspiration and encouragement for future work concerned with protecting, improving and guaranteeing access to rights for the world’s displaced people. This book is dedicated to them in recognition of their struggles. Katarzyna Grabska and Lyla Mehta Note 1. The Migration DRC (www.migrationdrc.org) is a collaborative research consortium initiated by the University of Sussex, Centre for Migration Research in partnership with: The American University in Cairo, Forced Migration and Refugee Studies; the Refugee and Migratory Movements Research Unit (RMMRU), University of Dhaka, Bangladesh; the Institute for Social, Statistical and Economic Research (ISSER) and the Regional Institute for Population Studies (RIPS), University of Ghana, Legon, Ghana; the Centre for Economic and Social Studies (CESS), Tirana, Albania; the Sussex Centre for Migration Research (SCMR) and the Institute of Development Studies (IDS), University of Sussex, Brighton, UK; and the School of Development Studies (DEV), University of East Anglia, Norwich, UK.

References Martin, Gilbert 1993, Atlas of the Arab Israeli Conflict, New York: Oxford University Press. Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-Based Approaches in Forced Migration’, Sussex: Development Research Centre on Migration, Globalization and Poverty.

Notes on the Contributors Dr Munzoul A. M. Assal is Associate Professor of Anthropology, University of Khartoum, Sudan. His most recent publications include: Diaspora Within and Without Africa: Homogeneity, Heterogeneity, Variation (Uppsala, 2006) and Sticky Labels or Rich Ambiguities: Diaspora and Challenges of Homemaking for Somalis and Sudanese in Norway (Bric, 2004). His research interests include transnational migration, forced migration, humanitarianism and development. Katarzyna (Kasia) Grabska is currently pursuing her PhD at the Institute of Development Studies, University of Sussex, focusing on the changes in gender relations among Southern Sudanese due to war, displacement and return to their places of origin. She has worked extensively on issues of refugees, human rights, gender and development in Asia, the Middle East and Africa. Between 2002 and 2006 she worked as research coordinator and researcher at The American University in Cairo, Forced Migration and Refugee Studies. Her interests in forced migration issues are combined with experience in documentary production and using video and art in research. Dr Barbara Harrell-Bond OBE, was the former founder/director of the Refugee Studies Centre at the University of Oxford until her retirement in 1996. She has been elected Honorary Fellow at Lady Margaret Hall, Oxford, in recognition of her pioneering work in broadening the field of forced migration and refugee studies. A long-time advocate of refugee rights with special attention to Africa, Dr Harrell-Bond helped establish the Refugee Law Project at Makerere University in Uganda, and in 2000 she initiated a refugee legal assistance programme in Cairo, AMERAEgypt, as well as the Africa and Middle East Refugee Assistance (AMERA), a UK-based charity. She is the author of Imposing Aid: Emergency Assistance to Refugees (now available online at www.forcedmigration.org) and is co-author (with Dr Guglielmo Verdirame) of Rights in Exile: Janus-faced Humanitarianism (2005). Michael Kagan is Senior Fellow in the International Human Rights Law programme at The American University in Cairo and also teaches in AUC’s Forced Migration and Refugee Studies. As a legal practitioner, Kagan has helped develop legal aid programmes for refugees throughout the Middle East. In 2007 he served as Egypt Programmes Director for Africa Middle xi

xii Notes on the Contributors

East Refugee Assistance (AMERA). He has published numerous papers on refugee policy in the Middle East, the role of the UN in refugee protection, refugee status determination, Palestinian refugee rights, and the role of international law in the Arab–Israeli conflict. His work has been cited by courts in precedent-setting asylum cases in the US and New Zealand. Professor Gaim Kibreab is Director of Refugee Studies at London South Bank University. He has carried out research and published widely on forced migration, repatriation, environment and development. He has written extensively on the situation of refugees in the Horn of Africa, examining issues of livelihoods, rights and policies. He also specializes in environment and development, gender issues and post-conflict reconstruction. His most recent book is Critical Reflections on the Eritrean War of Independence (2007). Lyla Mehta is a Research Fellow at the Institute of Development Studies, University of Sussex. As a sociologist, her work has focused on the gendered dimensions of forced displacement and resistance, rights and forced migration and the politics of water. Since 1991, she has conducted research on displacement and resistance in India’s Narmada Valley. She has also been active in Europe and India in advocacy and advisory work on issues concerning displacement, dams and development with global institutions such as the UN and the World Commission on Dams. She is the author of The Politics and Poetics of Water: Naturalising Scarcity in Western India (2006) and Displaced by Development: Confronting Marginalisation and Gender Injustice (2008). Behrooz Morvaridi is a Senior Lecturer at Bradford Centre for International Development, University of Bradford. He is the author of Social Justice and Development (2008, Palgrave Macmillan). Robert Muggah is Research Director of the Small Arms Survey (Graduate Institute of International Studies) in Switzerland, where he oversees largescale research projects on post-conflict mortality, arms control and forced migration in over thirty countries. He is also a Fellow of the US-based SSRC, Oxford University, and an associate with the Households in Conflict Network, the International Centre for Ethnic Studies, the Conflict Resource Analysis Group and DecDev. He has worked in over twenty countries emerging from war in partnership with the World Bank, the UNDP, the UNHCR, the World Health Organization and bilateral donors. He is the author of Relocation Failures: a Short History of Internal Displacement and Resettlement in Sri Lanka (2008), Securing Protection: Assessing the Effectiveness of Disarmament, Demobiliation and Reintegration in Post-conflict Contexts (2008) and No Refuge: the Crisis of Refugee Militarization in Africa (2006).

Notes on the Contributors xiii

Jaber Suleiman is a Palestinian refugee who currently lives and works in Lebanon as an independent researcher/consultant. During 1997–8 he was a Visitng Research Fellow at the Refugee Studies Programme, University of Oxford, and has written several studies dealing with Palestinian refugees and the right of return. He is an activist in the right of return movement and Palestinian civil society, as well as the coordinator of A’idun Group in Lebanon. He has contributed to many research projects on Palestinian refugees sponsored by UNRWA, UNDP and UNICEF. Currently he is acting as a consultant for the Palestinian programme of UNICEF in the Palestinian refugee camps in Beirut and the south of Lebanon. Samira Trad is founder and Director of ACSRA and Frontiers, Lebanese NGOs which defend the rights of refugees and asylum seekers in Lebanon and provide legal aid and counselling. Trad has also worked for many years as a researcher with Amnesty International (IS-London) and the International Institute for Human Rights (Strasbourg). Carol Yong Ooi Lin has over twenty years’ research and NGO-related experience. She has researched in and published on gender issues, human rights, land rights, and the impact of logging, plantations and mega dams on indigenous peoples in general and in Malaysia in particular. She now works as an independent researcher and writer. She is the author of Flowed Over: the Babagon Dam and the Resettlement of Kadazandusun in Sabah (2003).

List of Acronyms

ADB AfDB AMERA AUC CBD CBO CCPR CCRA CEDAW CERD CESS CHT CIDR CIRR CPA CRC CRS DAPR DEV DFID DID DIDR DRC DSI ECA ECGD ECOSOC EIA EIJM ELF EPLF ESCR FAFO

Asian Development Bank African Development Bank Africa Middle East Refugee Assistance American University in Cairo Convention on Biodiversity community-based organization Covenant on Civil and Political Rights Central Committee for Refugee Affairs (Lebanon) Convention on the Elimination of All Forms of Discrimination Against Women Convention on the Elimination of All Forms of Racial Discrimination Centre for Economic and Social Studies (Tirana, Albania) Chittagong Hill Tracts conflict-induced displacement and resettlement compensation and impoverishment risks and reconstruction Comprehensive Peace Agreement (Sudan) Convention on the Rights of the Child Catholic Relief Services Department of Affairs of Palestinian Refugees (Lebanon) School of Development Studies (University of East Anglia, Norwich, UK) Department for International Development (UK) development-induced displacement development-induced displacement and resettlement Development Research Centre on Migration, Globalization and Poverty (University of Sussex, UK) Agency for State Hydraulic Works (Turkey) export credit agencies Export Credits Guarantee Department UN Economic and Social Council environmental impact assessment Eritrean Islamic Jihad Movement Eritrean Liberation Front Eritrean People’s Liberation Front UN Covenant on Economic, Social and Cultural Rights Norwegian Institute for Labour and Social Research xiv

List of Acronyms xv

FMRS GAP GNU GoS GoSS GPs GRA HAC IADB ICCPR ICESCR ICIHI ICRC IDP IDS IFC ILO IOM IRIN IRR ISSER JHEOA JPMECCE JRS MOFA MOU NCCM NCPD NDA NGO NIF NR NWDT OAU OCHA OHAL OMS OPN

Forced Migration and Refugee Studies (The American University in Cairo, Egypt) South East Anatolia Project (Turkey) Government of National Unity (Sudan) Government of Sudan Government of Southern Sudan UN Guiding Principles Grievance Redressal Authority (Gujarat, India) Humanitarian Aid Commission (Sudan) Inter-American Development Bank International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Independent Commission on International Humanitarian Issues International Committee of the Red Cross internally displaced person Institute of Development Studies (UK) International Finance Corporation International Labour Organization International Organization for Migration Integrated Regional Information Networks impoverishment risks and reconstruction Institute for Social, Statistical and Economic Research (University of Ghana) Jabatan Hal Ehwal Orang Asli (previously, Department of Aboriginal Affairs, Malaysia) Joint Parliamentary Middle East Councils Commission of Enquiry Jesuit Refugee Service Ministry of Foreign Affairs (Egypt) memorandum of understanding National Council of Childhood and Motherhood (Egypt) National Council on Population and Development (Egypt) Eritrean National Alliance non-governmental organization National Islamic Front (Sudan) non-registered refugees (Lebanon) Narmada Water Disputes Tribunal (India) Organization of African Unity (now African Union) UN Office for the Coordination of Humanitarian Affairs Regional State of Emergency Governance (Turkey) Operational Manual Statement (World Bank) Operation Policy Note (World Bank)

xvi List of Acronyms

PA PFDJ PKK PLO PRCS PROFERI PRSP RAP RBA RIPS RLP RMMRU RR RSD SCMR SEZ SPLA SPLASH SPLM/A SSP UDHR UN UNCHR UNDP UNGA UNHCR UNRWA USCR WCD WFP WGIP

Palestinian National Authority People’s Front for Democracy and Justice (Eritrea) Kurdish Workers Party Palestinian Liberation Organization Palestinian Red Cross Society Refugee Reintegration and Rehabilitation of Resettlement Areas in Eritrea poverty reduction strategy paper resettlement action plan rights-based approach Regional Institute for Population Studies (University of Ghana) Refugee Law Project Refugee and Migratory Movements Research Unit (University of Dhaka, Bangladesh) resettlement and rehabilitation refugee status determination Sussex Centre for Migration Research (UK) special economic zone Sudan People’s Liberation Army Syarikat Pengeluar Air Sungai Selangor Sdn Bhd (Malaysia) Sudan People Liberation Movement/Army Sardar Sarovar Project (India) Universal Declaration of Human Rights United Nations UN Commission on Human Rights UN Development Programme UN General Assembly United Nations High Commissioner for Refugees United Nations Relief and Works Agency US Committee for Refugees World Commission on Dams World Food Programme Working Group on Indigenous Populations (UN)

1 Introduction1 Katarzyna Grabska and Lyla Mehta

Context and background In late 2005, hundreds of Sudanese refugees staged a sit-in in downtown Cairo for several months to protest against the violations of their rights by the Egyptian government and the United Nations High Commissioner for Refugees (UNHCR), an agency that was supposed to protect them. This mobilization of refugees was unprecedented in terms of its duration and magnitude both in Egypt and in the global South more generally. The basis for the sit-in was the restoration of the rights of refugees and the search for a permanent solution to the problems refugees face in Egypt. The demonstration ended in a brutal intervention by the state on 30 December 2005, resulting in the deaths of twenty-eight Sudanese, as well as in the injury and arrest of hundreds more (see Chapter 4 by Grabska and Chapter 11 by Harrell-Bond, this volume). A few days later across the globe, twelve adivasis (tribals) affected by displacement were shot by the police in Jajpur district in Orissa, India. The police, under the auspices of senior district officials, had opened fire on a large group of adivasis resisting displacement and the appropriation of their lands for the construction of a steel plant by the Tata Industries. About twelve adivasis were killed, and the victims included two women and a young boy. It was later discovered that the bodies of half the victims had been severely mutilated. Despite the rising tide of opposition to development-induced displacement in recent years, never before had so many protesters been killed, at point blank range in one instance (see Mehta forthcoming). Protests against displacement and land acquisition for so-called Special Economic Zones (SEZs) have been on the rise since then all over India. These examples highlight two issues. First, displaced people are protesting and questioning the top-down policy frameworks through which displacement and resettlement are enacted. Second, despite a greater awareness about rights among displaced populations as well as institutions and governments that are supposed to protect them, as the Cairo example shows, there are 1

2 Forced Displacement

questions concerning who determines rights, who guarantees them, who is entitled to rights and who bears the responsibility and accountability in implementing and providing rights. These issues are a core concern of this book. Our starting point is that uprootedness, exile and forced displacement, be they due to conflict, persecution or even so-called ‘development’, are conditions which characterize the lives of millions of people across the globe. The continuing conflict in Darfur which has claimed hundreds of thousands of lives and resulted in the displacement of over one million people, and the August 2006 military intervention of Israel into Lebanon and the accompanying displacement of nearly a quarter of Lebanon’s civilian population show that uprootedness is not going to wither away. In 2007, the peaceful protest against the military rule organized by Buddhist monks on the streets of Rangoon was brutally crashed by the governing junta. Since then, thousands have been arrested and jailed and others are on the run, seeking refuge and safety across the borders. While the international development and humanitarian community has largely been concerned with refugees crossing borders to flee persecution, violence, impoverishment and brutal regimes, less attention has been paid to internally displaced populations (IDPs) whose experiences are similar in their own countries to those of refugees or to those experiencing displacement due to infrastructure projects built for ‘development’ purposes, such as mines, dams and roads. Often known as oustees, these people are affected by development-induced displacement (DID).2 The condition of uprootedness, regardless of its cause, is unlikely to go away in the twenty-first century. Globalization, with its accompanying acceleration of international capital flows and economic liberalization is likely to increase the number of projects that entail the forced displacement of marginal populations. At the turn of the century, conservative estimates put this number at about 10 million annually (Cernea 1997).3 In India alone since its independence in 1947, 21–50 million people or oustees have been displaced by large projects (see Hemadri et al. 2000). In 2006 there was an increase in the numbers of people of concern to the UNHCR, estimated at 32.9 million (up from 21 million in 2005) (UNHCR 2007a: 2, 2007b: 9). This is a 56 per cent increase, largely because of the rise in the number of internally displaced persons (IDPs) who are now of concern to UNHCR globally (UNHCR 2007a: 3). The Internal Displacement Monitoring Centre places the IDP figure at 24.5 million conflict-related IDPs at the end of 2006 (2007: 2). The number of stateless persons more than doubled from 2.4 million in 2005 to 5.8 million at the end of 2006. And, at the end of 2006, UNHCR put the number of refugees at 9.9 million, the highest in five years (UNHCR 2007a: 5). The book’s starting point is that in order to achieve social justice for the millions of people encountering forced displacement, debates have to go well beyond addressing the physical needs of displaced women and men

Introduction 3

and approaches that view displaced people as recipients of charity. Instead, there is a need to strengthen institutions which are supposed to protect and promote a wide range of rights, including the right to livelihood, survival, autonomy and even the right to veto either projects that displace people or settlement schemes that inadequately address their rights and interests. Why is this relevant? To a large extent, forced migration research, policy and practice have deployed problematic ways of looking at displaced populations. Refugees have been viewed as ‘problems’ for host countries and interventions have focused on ‘durable solutions’, i.e. voluntary repatriation back to their home country, resettlement in another country or integration into the host society (see Harrell-Bond 1987). Oustees are often perceived as the unfortunate victims of development projects that are necessary for a country’s prosperity or for the greater common good. IDPs are often referred to as invisible victims of internal social and political upheavals, voiceless and problematic. These traditional approaches treat the uprooted, at best, as recipients of charity and welfare, or at worst, as victims or problems. While there have been some pro-rights policies and programmes in recent years, traditionally the approaches that have tried to accord agency to refugees and oustees, as they make the most of their adverse conditions and mobilize around their rights, have been few and far between. Largely, the policy and conceptual frameworks that have focused on their problems have been very top-down, resulting in social engineering. In recent years, though, humanitarian and development organizations such as Oxfam, Save the Children and several UN agencies have attempted to shift their programmes towards promoting displaced people’s livelihoods and rights (see Appleyard and OHCHR 2002; Bakewell 2003; Offenheiser and Holcombe 2003; Oxfam 2007; Save the Children 2002; UNICEF 2007b). It is too early to evaluate the success of these approaches, but they are important steps in taking rights as a starting point for interventions on behalf of refugees, displaced and oustees. Despite these recent attempts, the stress on top-down policy and programming prevails. This emanates from the approaches deployed to understand processes of forced migration. The massive focus on examining the impoverishment risks and impacts of displacement at the social, cultural, economic and institutional levels has been key in teasing out the various impoverishment processes accompanying displacement for both refugees and oustees. A good case in point is Michael Cernea’s famous Impoverishment Risks and Reconstruction (IRR) model (see Cernea 1997, 2000; Mehta forthcoming; Morvaridi, Chapter 3, this volume). This model has been important in showing how displacement goes hand in hand with physical, social and economic exclusion, which results in a broad range of impoverishment risks, namely landlessness, joblessness, homelessness, marginalization, increased morbidity, food insecurity, loss of access to common property and social

4 Forced Displacement

disarticulation (ibid.). It is now widely used in resettlement research, and one of its aims is to help operationalize a just planning process around resettlement (Cernea 1997). It is now increasingly being applied in refugee studies as well (e.g. Kibreab 2001). However, as Morvaridi (this volume) argues, many risk management approaches largely serve as tools for planners. They often fail to capture local dynamics, the perspectives of displaced people and wider socio-political factors that cause exclusion. Moreover, definitions of who is a refugee, IDP or oustee are often strongly contested. Globally constructed norms and standards often do not match up with local claims and definitions around the notions of who is a refugee or oustee. While a large social science literature in both oustee and refugee studies has generated numerous locally rooted studies highlighting the inadequacies of the needs-based regime and documenting how refugees/oustees are realizing their rights, this literature has sometimes been less explicit in making links with wider policy processes and local/global processes or in articulating how and whether rights can be institutionalized and realized. Clearly there exists a challenge in operationalizing rights-based approaches or bottom-up frameworks, as contributors to this volume show in their different examples of displacement around the world. This is because agencies may lack the political will to take on board local definitions of loss, persecution and rights. Furthermore, rights-based approaches may place significant strains on the institutions of receiving areas. This is particularly true because 70 per cent of the world’s refugees are hosted by developing country nations, already overburdened by their own socio-economic problems (UNHCR 2005). Moser and Norton argue that especially in the context of economic and social rights it is important to understand the nature of state obligation: ‘Since the fulfilment of many rights is potentially demanding on public resources, it may not be achievable in the short run . . . The obligation to fulfil in turn gives rise to obligations to facilitate, provide and promote’ (Moser and Norton 2001: vii). This indicates the costs and complexities of implementing rights-based programmes. Thus, it is important to tease out the practical, conceptual and methodological challenges in operationalizing rights-based and bottom-up frameworks, which the authors in this volume attempt to do in their various policy recommendations. By creating a dialogue between global and local perspectives on rights and policies, cutting across disciplines (sociology, anthropology, politics, law), regions (the Middle East, Asia and Africa) as well as actors (policy-makers, advocates and activists from global to national and local levels as well as displaced people), the book seeks to construct a new platform for exchange and communication. It seeks to explore both policies and rights frameworks and practices in processes of forced displacement. Over and above the problematic policies outlined above, it also critically evaluates the origins of rights discourses in forced migration processes and who they serve.

Introduction 5

We also specifically look at whether displaced people should have particular rights, and if so, who or what defines and implements them. In short, the book attempts to re-evaluate the policy frameworks and categories that determine the status of refugees, IDPs and oustees and what they are entitled to claim and have rights to; evaluate how displaced people (refugees, IDPs and oustees) can themselves seek to minimize the costs and vulnerabilities of forced displacement; and evaluate rights-based approaches in forced migration that seek to award agency to displaced people as makers and shapers of their lifeworlds. Using rights as a way of bridging the divide in the discourses and policies addressing different forms of displacement, the book’s unique feature is to bring together different contexts of displacement by analysing the role of the state and the international community in providing protection and guaranteeing rights to the different groups. While starting from the overarching human rights regime, specific regimes for refugees, IDPs and oustees will be discussed (see Muggah, Chapter 2, this volume). In recent years, there have been several publications that have presented a comprehensive approach to the problem of forced displacement and the rights accorded to refugees and internally displaced people in universal human rights frameworks and in international law (see Hathaway 2005; Robinson 2003; Stavropoulou 1998; Verdirame and Harrell-Bond 2005). Others, like Bayefsky and Fitzpatrick (2000), have examined ways of operationalizing human rights standards by the different institutions involved in the protection of the displaced. Tom Clark (2004) provides an interesting account of rights-based refuge and the need for authoritative reinterpretation of the 1951 UN Convention on Refugees. These publications, however, focus mainly on the legal criteria of rights, their implementation, interpretation and grounds for claiming justice. The importance of these contributions has been unquestionable. Our contribution to this debate, however, takes a different perspective. The authors in this volume draw attention to the agency of the displaced and their own subjective perceptions of rights, their struggles for recognition and how they mobilize to claim rights. Through detailed, empirical and locally situated examples, our contributors address the mismatch between policy frameworks and the ways in which displaced people conceive of loss/their entitlements. The volume then further looks at how displaced people (along with international and national campaigners and non-governmental organizations) are mobilizing to realize their rights. The book also attempts to question the theoretical and the practical divide between rights and their implementation. On the one hand, at a theoretical level, states sign up to a host of conventions (to which we shortly turn) and international organizations are supposed to monitor the implementation of human rights that protect displaced people (see Muggah, Chapter 2, this volume). In reality, however, state practices and domestic laws are divorced from the human rights obligations to which the states have signed. There is instead

6 Forced Displacement

the tendency to adhere to domestic laws and practices, as the examples of Egypt, Lebanon, Sudan and other countries in this book demonstrate. All the contributions in the book point to the gap between stated principles and actual practice. The purpose of the book is thus to analyse these inconsistencies in order to highlight how rights talk must end up being rights practice. Rights have to be taken seriously in order to be effective. Before we turn to the definitions employed in this volume and before raising some conceptual issues concerning rights and forced displacement, we will briefly discuss the position of the authors in their respective studies.

Situating the researcher This book represents a collection of in-depth case studies from the global South (with a focus on the Middle East4 and additional case studies from Africa and Asia), theoretical discussions of regimes affecting the displaced, reflections on the contestations of denial of rights by the displaced, types of displacement (development-induced displacement, refugees and internally displaced persons) and issues relating to rights (accountability and responsibility in providing and guaranteeing rights, power to determine rights, issues of implementation and access and so on). All the contributors have used different methodologies and methods for their research which they discuss in their chapters. However, all have had a long-term engagement with issues concerning forced displacement. We are also honoured to offer contributions by some of the best known researchers and activists in the field of forced migration and displacement studies. Two of our contributors have themselves experienced the refugee situation. Gaim Kibreab’s chapter on realizing socio-economic rights in exile and the issue of return for Eritrean refugees from Sudan (Chapter 6) is based on personal experiences as an Eritrean refugee in Europe as well as on twenty years of engagement with the issues of displacement in Eritrea. Jaber Suleiman is a Palestinian refugee and activist in Lebanon who has experienced many of the rights violations which he addresses in Chapter 5 and is active in the global Palestinian right to return movement. Most of us live and work in places that are not our countries of birth, and many of us consider ourselves to be scholar activists in the field of forced migration and displacement. Barbara Harrell-Bond, for example, not only founded refugee studies at the University of Oxford in 1982 but has also been a long-time activist and promoter of refugee rights. In Chapter 11 she provides an account of her years of encounters with refugee protests around the world. Samira Trad and Michael Kagan (Chapter 8) are also long-standing legal advocates of refugee rights and have been active proponents of rights-based policies for refugees in Lebanon and the region for a long time. The chapters examining the situation of development-induced displacement and IDPs are presented by researchers who play a dual role

Introduction 7

as academics and advocates. Before Carol Yong (Chapter 9) embarked on her academic career, she was active in the struggle of indigenous groups claiming their rights against displacement in Malaysia. Behrooz Morvaridi’s (Chapter 3) work on displacement in the context of the Ilisu dam led him to engage with civil society groups and export credit agencies in Europe to improve resettlement policy and practice. Robert Muggah (Chapter 2) has worked on a variety of displacement/resettlement issues since the mid-1990s and seeks to merge robust empirical research with policy and programme development. Lyla Mehta (Chapter 10) has been concerned with dams-based displacement in India and elsewhere for the past seventeen years and has done both extensive research and advocacy work in this field. She has also engaged with the protest movement against the Narmada dams in India. Katarzyna Grabska’s Chapter 4 on refugee rights in Egypt, Mazoul Assal’s Chapter 7 on IDP rights in the Sudan and the two chapters on Lebanon (Chapters 5 and 8) are based on qualitative research undertaken for and funded by the Migration DRC under the theme of rights and forced migration and carried out in cooperation with the FMRS. The authors, however, have been involved in forced displacement research and advocacy in their respective countries and regions for the past decade. They do not claim to be neutral in their stance but incorporate into their research insights from their interactions and involvement with displaced people’s lives and experiences of rights violations. This background raises several ethical issues regarding the research process and writing, not least because we have been working with marginalized and disenfranchised people who have gone through traumatic experiences (see Turton 2003). Conducting research on issues relating to rights and violations of rights is challenging since we are eager that it should make a difference and also meet the requirements of scholarly research which demand objectivity and neutrality (Jacobsen and Landau 2003). In many ways, the field of refugee and forced displacement studies derives its origins from both a scholarly inquiry and analytic theory combined with advocacy and action aimed at changing the situation of the participants of the research (Turton 1996; Van Hear 1998). This double aspect, however, sets a challenge for policy-oriented research, which it is not always easy to overcome. In order to be relevant, the bulk of the research in refugee and forced migration field has been policydriven, if not policy-dominated. This has often been to the detriment of the wider theoretical debates and academic neutrality. We question whether one can be ‘neutral and detached’ while studying the situation of those who are subjected to marginalization, who experience rights violations and often have to struggle to have their voices heard. Hence, many researchers, including several of our contributors, have chosen to be directly involved in shaping policies and with those who are affected by them. As a result, many in refugee and displacement studies are not simply academics or researchers, but also critical voices vis-`a-vis policy or active participants in displaced people’s struggles. Feminist research highlights how

8 Forced Displacement

it is possible to take such stances while maintaining a focus on objectivity (see Haraway 1989; Mies 1978). Most of the authors in this volume seek to enhance scholarship in forced migration and displacement while engaging in research which aims at actively changing the circumstances of those participating in the research. The researcher thus becomes part of the struggle for displaced people’s rights and recognition and, as such, ceases to be a mere commentator and observer.

Labels, categories and exclusion One of the starting points of this book was to look for synergies and lessons that can be learned between different strands of research in forced displacement studies. Traditionally, students of refugees and displaced people (both oustees and IDPs) have rarely spoken to each other. In part this has to do with differences in the causes of impoverishment, the massive institutional differences in the major agencies dealing with refugees, IDPs and oustees, as well as who assumes responsibility for the successful resettlement and rehabilitation/integration of forced migrants. Take institutional arrangements: there are massive institutional differences in the major agencies dealing with refugees (namely the Refugee Settlement Commission of the League of Nations, the United Nations Relief and Works Agency for Refugees in the Near East (UNRWA), the UNHCR and host countries such as Egypt, Lebanon, Sudan and India), IDPs (namely the UNHCR, the UN Office for the Coordination of Humanitarian Affairs (OCHA) and national governments) and oustees (namely the World Bank, regional banks such as the Asian Development Bank, national governments and regional resettlement agencies). Similarly, there are differences in claims to entitlements. Legislative frameworks (international laws, human rights laws, legislations, conventions and treaties) embrace protection for refugees, based on the framework of the Universal Declaration of Human Rights (1948)5 and specific conventions such as the 1951 Convention relating to the Status of Refugees. Under international law, states are obliged to protect non-citizens and those residing within their national borders, including refugees, who often cannot claim entitlements from host states due to the denial of basic rights (see the chapters by Suleiman, Grabska, Trad and Kagan this volume). This is the crux of the distinction between refugees and IDPs, whose status, even if they flee their homes for the same reasons as refugees, is defined and protected by the legal frameworks of their own nation. Thus refugees have the protection of international law that internally displaced people (IDPs) lack even though they might be affected by similar conditions resulting from violence, violations of human rights, and natural or human-made disasters. The state is both the violator and protector of the rights of IDPs and oustees. Still, as this book shows, there is a lot of scope for comparative research through several substantive matters such as causality, magnitude, impoverishment

Introduction 9

processes, policy frameworks, rights and entitlements, assistance strategies (see Cernea 2000), forms of resistance and mobilization and local perceptions of rights and risks. The universalism, accelerated in recent years by globalization, which underlies the principles of human rights and entitlements, further strengthens the bridge between the study of, and assistance to, oustee, IDP and refugee circumstances (see Mehta and Gupte 2003).

Problems with labels and categories Definitions of forced migrants and refugees have provoked a debate across numerous disciplines, with many arguing about the negative impact of the narrow labelling adopted in refugee studies (Malkki 1992; Mehta and Gupte 2003; Turton 2003; Zetter 1998). Although the concept of forced migration should naturally encompass different forms of migration, including internal displacement and development-induced displacement, traditionally, however, it has predominantly focused on the narrow sub-category of refugees and those forced to flee due to violence, war and insecurity (see, for example, Hammerstad 2005). Turton (2003: 2) asks whether, as academics and scholars wanting to influence policy, we should be blindly defining the subject matter in terms of the same categories and concepts that are employed by policy-makers. As he argues, categories adopted by policy-makers are often unhelpful for a scientific understanding, as they limit the possibilities of inquiry. Hence, the study of forced migration will become ‘less relevant’ the more it follows categorizations adopted by policy-makers. For instance, while talking about forced migration, the category of development-induced displacement is ignored, thus producing results relevant only to refugee studies. This narrow frame is not just restricted to policy-makers. There is a lot of resistance on the part of many academics who are purists about forced migration studies and who resist opening up the field to embrace the concerns of IDPs and oustees.6 This book tries to go beyond these narrow framings to explore the daily lives and struggles of the displaced. The power of categorization and awarding status is linked to the ‘right’ to have ‘rights’. The labels ‘refugee’, ‘oustee’ and ‘IDP’ are controversial, especially when it comes to policy formulation (see Gupte and Mehta 2007). As argued by Zetter (1988), the label of refugee, for instance, both stereotypes and institutionalizes a certain status. Although the label claims to be apolitical, through law and policy-making, it establishes highly politicized interpretations (Wood 1985). Due to the strict requirements for refugee status provided in the 1951 Convention relating to the Status of Refugees and the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, being granted the status is difficult for most forced migrants. In fact, the strict legal criteria and status determination procedures often employed by either host governments or carried out by the UNHCR on behalf of the governments mean that many remain outside the

10 Forced Displacement

protection of international refugee law (as the cases of Egypt and Lebanon demonstrate in this volume). Hence, most of the studies presented in this volume question the narrow legalistic definitions and adopt a more encompassing definition of refugees, including those who either have officially applied for refugee status in the country of asylum or who do not feel safe to return to their country of origin. Following Malkki’s (1992) definition, the term refugee should not be seen exclusively in the context of the countryof-origin experiences which lead an individual or a group to flee, leaving him or her with a sense of loss (in terms of protection, social networks and material property). Rather, the dynamic aspect of the refugee experience must be taken into account, whereby one becomes a refugee not only by escaping violence and persecution and crossing an international border, but also by going through the process of seeking asylum, as part of evolving relationships, networks and personal developments (Al Sharmani 2003). The category ‘displaced person’ or ‘forced migrant’ also designates crisis and associated conditions of poverty and marginalization. Often the label implies ‘burden’ and imposes an institutionalized dependency (Zetter 1985, 1988). At the same time, however, the category ‘refugee’ or ‘displaced person’ establishes rights and entitlements guaranteed under universal human rights and other relevant regimes. For example, illegality and lack of refugee status mean limited and disadvantaged access to jobs,7 lack of access to education for children,8 lack of access to health services, and the inability for refugees to claim their other rights in the host society,9 including freedom of movement.10 Rights, however, are granted to refugees temporarily, pending one of the durable solutions to the refugee ‘problem’.11 The situation for those who have been given a label of internally displaced (IDPs) is even more legally controversial. As people who have not crossed an international border, IDPs remain under the sovereignty of their governments and hence, under their protection. In 1998, the UN Representative on internally displaced persons issued Guiding Principles on Internal Displacement.12 Even though they are not legally binding, they are based on and consistent with international human rights law, humanitarian and refugee law. Unlike the protection accorded to refugees, the Guiding Principles on Internal Displacement contain only recommendations (Deng and Cohen 1998) with respect to the protection of the rights and entitlements of those involuntarily displaced due to development projects or conflict situations. There are no legal obligations on states to protect IDPs. Indeed, as several chapters in this volume demonstrate, the state is the chief perpetrator of human rights violations. The state, thus, is Janus-faced and emerges as both the violator and protector of basic rights (see Assal, Yong, Mehta, this volume). Only in exceptional circumstances does the international community or the UN intervene in matters that are within the domestic jurisdiction of any state since this would be considered to be an infringement of the

Introduction 11

‘sovereignity’ of the state within which the displaced reside (Hathaway 1991, 2005). There are exceptions such as Afghanistan and Iraq in recent years. But in these cases the concern for human rights violations coincides with the national interests of the intervening superpowers. These issues indicate several contradictions and a disjuncture between the idea of global obligations and universal declarations to secure rights and the local means to achieve them. The label, thus, not only categorizes. It also excludes, and, with this exclusion, displaced people’s basic rights are denied. For example, people who live in the downstream areas of dams may have their right to livelihood infringed because their fishing livelihoods will be at risk once a reservoir is dammed. Others may want recognition for their rights in customary law and thus seek compensation for their usufruct rights over trees and the forest. But such groups are not considered to be ‘project affected persons’, and they are denied compensation. Thus, resistance on the part of displaced people and their allies in NGOs and activists is often about inclusion by category or a struggle for compensation from which they were otherwise excluded.

From needs-based to rights-based approaches? Traditional refugee and displacee policy in the global South has largely focused on the satisfaction of immediate needs like food, water, shelter and sanitation. This has often led to the adoption of a confinement strategy, keeping large numbers of refugees in settlements or camps, and dependent on relief (Voutira and Harrell-Bond 1995; Hyndman 1997). Such approaches result in top-down policy formulation, with little or no involvement of displaced populations themselves. This philanthropic mode of operation is often donor-driven and externally determined (Collinson 2005: 13). According to Jeff Crisp (2001: 16): it is now time to reconsider the wisdom of using scarce resources to feed, shelter and generally ‘warehouse’ refugees who are deliberately prevented from establishing livelihoods and becoming self-sufficient. Notions such as ‘integrated zonal development’ and ‘refugee aid and development’ may be forgotten or discredited. But the principles on which they are based – that refugees should enjoy productive lives and contribute to the development of the areas where they are settled – could usefully be revived. Karen Jacobsen’s research highlights the underlying link between livelihood security and access to rights. When refugees are denied access to rights, their ability to acquire stable livelihoods is undermined (Jacobsen 2002). For other displaced groups such as oustees, the resettlement experience has often been a classic social engineering exercise where oustees are often exposed to control from project and/or health officials and have little or no

12 Forced Displacement

say in site selection and in questions around land, grazing, water provision and so on (see Asif 2000; Mehta forthcoming). Since resettlement schemes and camps have been so inadequate, it is little wonder that many displaced people refuse resettlement. Thus, displaced people have been compelled to engage in local struggles around rights, which several chapters in this volume discuss extensively (e.g. Mehta, Harrell-Bond, Grabska, Morvaridi). The principal value of rights-based programming lies in ‘the ability to identify more precisely responsibilities for humanitarian outcomes, and to bring corresponding influence to bear on those responsibilities’ (Darcy and Hofmann 2003: 23, quoted in Collinson 2005: 13). In principle, the key difference between human needs and human rights are that the latter entail an element of entitlement to them that the former lack. Rights-based approaches imply that people’s access to basic needs is protected by law and legal mechanisms (Goldewijk and de Gaay Forman 1999). Rights, in other words, are the basis of access to resources and commodities upon which real claims can be made. They also entail an element of justice, and this legal protection in principle can provide grounds for redress in cases of accountability failures, and to mobilize resources at local and global levels. Moser and Norton state a further advantage, arguing that ‘a rights perspective provides a robust framework for examining some key aspects of the vertical power relations and institutions that shape people’s livelihood capabilities’ (2001: 16). Hence linking provision of protection and assistance to rights rather than needs provides a way of legitimizing claims and entitlements. The growing rejection of top-down approaches on the part of both displaced people and their allies has led to a call for rights-based approaches in forced migration. Recognizing the marginalization and vulnerability of a particular group and, as argued by Collinson (2005), acting to redress this marginalization and assert claims to protection on the basis of more beneficiary-centred approaches to humanitarian programming requires redefining humanitarian action around the concept of rights rather than needs (see also Darcy and Hofmann 2003; Slim 2001). The rights-based approach derives its strength from being rooted in law (international human rights law including refugee law) and hence, adds an element of accountability and culpability, which gives an ethical/moral dimension to policy (Nyamu-Musembi 2005). Posner and Clancy (2005) point out that ‘the core of a rights-based approach to refugee assistance is the identification of a certain standard of treatment to which an individual refugee (internally displaced or oustee) is entitled’. Although the rights of refugees are firmly grounded in the international regime, when it comes to practice, the majority of policies focus on providing relief and emergency assistance. Needs-based approaches focus on the immediate rather than the long term. They tend to objectify the needs of displaced people, rather than award them with agency to determine what they are entitled to as they struggle for their rights.13 Hence, the

Introduction 13

thinking behind most policies tends to focus on meeting displaced people’s basic needs rather than their rights. In many cases, this approach results in the encampment of refugees and other displaced people, making them dependent on basic assistance at the expense of freedom and access to rights (Hyndman 1997; Voutira and Harrell-Bond 1995, 2000). As discussed, in recent years there has been a shift to focusing on rights not only in academic discussions, but also in policy and programming debates among states, UN agencies, NGOs and grassroots organizations (Oxfam 2007, Save the Children 2002, UNICEF 2007). This trend has moved policy debates away from a focus on assessing and responding to needs, a process that in the past has not necessarily questioned existing allocations of entitlements, towards one that focuses on rights, which promotes greater awareness of issues of equity in the distribution of all types of resources and opportunities. (Brocklesby and Crawford 2005: 8) Oxfam, for example, has linked its programming to rights awareness raising. It has attempted to address inequality and promote greater government accountability by supporting the formation and participation of civil society (Oxfam 2007). Although the UNHCR and its implementing partners have tried to adopt more rights-oriented approaches, this has not been easy. Bakewell’s critique (2003) presents a rather bleak picture of the attempt to shift from needs-based assistance towards a more integrated rights and development framework. While questioning whether there is scope in the UNHCR’s programmes to adopt more rights-oriented programming, Bakewell argues ‘Ironically, given its focus on protection and rights guaranteed to refugees with respect to host states, UNHCR has yet to adopt a clear human-rights framework for its humanitarian aid activities and still operates largely within a needs-based approach to assistance’ (Bakewell 2003: 17; also see Kenny 2000). Although the UNHCR and other actors involved in refugee and oustee protection and assistance have made efforts to raise the profile of protection issues among their implementing partners, ‘the discourse has remained firmly one of protection and beneficiaries, which keeps the refugees in their place’ (Bakewell 2003: 17). Furthermore, as many of the case studies on refugees in this volume demonstrate, even though rights-based approaches are supposed to imply more agency, when they are implemented they are sometimes as top-down as needs-based approaches (see Grabska, Trad and Kagan, this volume). For the internally displaced and oustees, the top-down, needs-driven interventions are even more common, as their rights are more grounded in national practices and laws rather than international conventions. According to Asif’s (2000) writings about development induced displacement in India, oustees woefully lack the ability to participate as equal actors around compensation procedures, around determining solutions to the problems of

14 Forced Displacement

resettlement and in the protection of their human rights. This is because oustees’ right to development is pitted against the nation or state’s right to development (Robinson 2003), and oustees are supposed to sacrifice their rights and interests ostensibly for a ‘national purpose’ (see the chapters by Yong, Mehta and Morvaridi, this volume). This stance is increasingly questioned in this volume and elsewhere. As most of the case studies in this volume demonstrate, livelihood security is closely correlated with access to rights. Refugees, IDPs and oustees ‘cannot establish or maintain their livelihoods because they cannot exercise the rights to which they are entitled under international human rights, humanitarian law, and /or refugee law’ (De Vriese 2006: 7; see also Jacobsen 2002). Still, as Morvaridi (this volume) argues, ideally, policies and interventions should go beyond focusing on livelihood restoration to providing a range of long-term social protection measures that enhance the displaced person’s overall status and access to rights. These necessary shifts in policy and programming, however, rarely take place easily as they threaten the established policy and programming frameworks and bureaucratic practices which are difficult to change (see Bakewell 2003). Sometimes, the shift to rights-based approaches is purely a linguistic change rather than an in-depth transformation of the implementation of aid and protection policies and programmes (see Trad and Kagan, Grabska in this volume). In part, this is to do with difficulties translating universalist frameworks to the national and local level to which we now turn.

Do universalisms matter? The perception of what should be defined as a ‘basic human right’ often draws on universal standards enshrined in the 1948 Universal Declaration of Human Rights (UDHR). But human rights and even what the very term ‘refugee’ implies are not just legal matters, but also dependent on culture as well as on the development standards of a country (Harrell-Bond 1987). As pointed out by Downing and Kushner, ‘the precise content of human rights logics varies between and within the same culture at different times. Yet, the logics also tend to share critical, perhaps universal dimensions’ (1988: 9). Cowan et al. (2001) point to what is often incompatibility between the varying ideas about rights that different social groups hold. Most chapters in this book focus on universalist human rights standards along with potential tensions in their application. We realise that distinctions between the so-called first and second generation of rights are quite problematic since both the so-called negative rights (i.e. civil and political rights) and positive rights (i.e. social and economic) are indivisible and interrelated. In recent years, citizenship has increasingly been seen as encompassing both civil and political rights as well as social and economic rights. In fact, the distinction between negative and positive

Introduction 15

rights is highly problematic because both involve outside intervention and commitments for their protection (Plant 1998). Civil and political rights are clearly the most acknowledged in forced migration policy and practice. These fall under the umbrella of the International Covenant of Civil and Political Rights (ICCPR) which has 160 signatories. Refugees have a strong basis for protection against persecution and abuse of their civil and political rights. By ‘voting with their feet’ (Hathaway 1991: 120), refugees fleeing from oppressive state regimes and the abuse of their human rights can expect protection from international law and from host countries. Coercive displacement can also lead to the violation of civil and political rights of IDPs. For example, governments can resort to police violence to stop oustees protesting against displacement. Similarly, civil and political rights can be violated at the hands of officials implementing resettlement schemes. State governments may often be willing to violate civil and political rights when they evoke the principle of ‘national purpose’ or ‘eminent domain’ to acquire land for development purposes (see Mehta, Yong, this volume). Thus, oustee attempts to seek redress can be tricky since the state is often both the perpetrator of human rights violations and the arbiter of justice. By contrast, refugees can draw on the right to flee an oppressive state regime and gain protection from international law and host governments (see below). Still Robert Muggah’s chapter demonstrates that regimes are emerging that are beginning to protect the rights and needs of the internally displaced and promote durable solutions on their behalf. Even though they are top-down in character and limited by the persistence of national sovereignty paradigms narrowly conceived in terms of non-interference, regimes can potentially play a key role in promoting the rights and interests of IDPs since they end up guiding state and non-state action on displacement.

Citizenship and the indivisibility of rights Most of our case studies, however, largely focus on social, economic and cultural rights since these have been the most neglected in studies on displacement and forced migration. They are also the rights that are crucial for livelihood security. The displacement and resettlement of IDPs, oustees and refugees lead to several risks to basic social and economic rights. These include: the right to development and self-determination,14 the right to food, health, education, participation and the right to livelihood more generally. Social and economic rights fall under the International Covenant on Economic, Social and Cultural Rights (ICESCR) which has 156 signatories. However, these rights are often viewed as ‘second generation’ rights which can only be progressively realized once civil and political rights are dealt with. For example, Hathaway argues that there are some rights for refugees that are immediate, whereas others are seen as progressive. Among those progressive rights, he includes economic rights (Hathaway 2005). This view, however,

16 Forced Displacement

does not correspond to the experiences and perceptions of protection of displaced people. As our case examples from Egypt and Lebanon demonstrate, this is usually multi-layered and it is difficult to separate out legal protection from economic and social sustenance and the right to livelihood. Thus, a narrow legalistic definition of which rights are more immediate can feed into the biases of states that claim that they lack the resources to protect the economic and social rights of their citizens, let alone refugees. However, why should states honour these commitments towards noncitizens given that they honour existing obligations (such as the right to seek asylum) with such reluctance? This question goes to the heart of what constitutes membership of a country/community. Conventionally, it is citizenship which facilitates this membership. However, as Hathaway argues drawing on Walzer, while states have the right to exclude non-citizens from membership in their country, viewing refugees as ‘necessitous strangers’ grants them special entitlements in a national community (1991: 124). This calls for both: a limited and complex redistribution of membership and/or territory . . . The same difficulty arises with regard to wealth and resources. These, too, can be superfluous, far beyond what the inhabitants of a particular state require for a decent life . . . [In these circumstances, members of the state] could share their wealth with necessitous strangers outside their country or with necessitous strangers inside their country. (Walzer in Hathaway 1991: 125) This calls for states to extend conventional notions of membership to refugees in order to protect a range of political and socio-economic entitlements. These issues go to the heart of citizenship which constitutes civil and political as well as social and economic rights. As Kabeer argues, ‘citizenship represents rules which spell out the claims and obligations of membership in a given community/society and ensure redistribution as a matter of right rather then discretion’ (Kabeer 2005: 25). Citizenship is presented as a more inclusive term, encompassing rights and obligations for those who experience exclusion. In this view, citizenship encompasses ideas of adherence to some notion of justice, whereby justice is conceptualized around when it is fair for people to be treated the same and when it is fair that they should be treated differently (Kabeer 2005: 3). It also includes a demand for recognition not only of their personhood but also of their difference. This interpretation is useful for several of our discussions in this volume. Gaim Kibreab, examining the official refugee policy in Sudan which constrains refugee rights, juxtaposes it against the actual practice of Eritrean refugees gaining access to socio-economic rights. Eritrean refugees have gained a status equivalent to permanent residence and enjoy most of their socio-economic rights on equal footing with nationals. Thus de jure citizenship is not as important for

Introduction 17

Eritrean refugees in Sudan as long as they can access socio-economic rights on equal footing with nationals. Citizenship is also viewed as access to full protection by refugees in Egypt (see Grabska, Harrell-Bond, this volume), who due to the harsh economic conditions and official policies of the state, are barred from fully integrating in the host community. Instead, they pursue other means in a search for a permanent solution to their displacement condition. Economic and social rights have different implications for IDPs and oustees. For oustees, at least, the protection on paper is more clear-cut. States that force population groups to relocate clearly need to first avoid the likelihood that oustees’ social and economic rights will be corroded (see chapters by Morvaridi, Yong and Mehta, this volume). Secondly, if possible they also need to enhance the socio-economic status of oustees and help secure a better standard of living for them, thus making ‘development’ a just process that enhances the life choices of all. Consequently, there are now growing calls for the need to link resettlement with wider developmental efforts. This explains why the World Commission on Dams (2000) seeks to make hitherto losers emerge as winners of dam projects, and key thinkers on resettlement issues, such as Cernea, call for resettlement activities to be conceived and executed as sustainable development programmes, providing sufficient investment resources to give the persons displaced by the project the opportunity to share in project benefits (Cernea 2000). However, as the chapters on development-induced displacement in this volume demonstrate, there is often a marked lack of political will to realize the rights of displaced people since they belong to minority groups (e.g. the Kurds in Turkey or indigenous peoples worldwide, see Morvaridi, Yong, Mehta, this volume). On 13 September 2007, however, the UN General Assembly made strides towards the recognition of indigenous people and their rights by adopting the UN Declaration on the Rights of Indigenous Peoples (UN 2007). The declaration recognizes the principle of free, informed prior consent for indigenous peoples in the context of displacement. Nonetheless, struggles for the realization of this continue. Carol Yong demonstrates how displacement in the name of ‘development’ in Malaysia has continued a long process of state control over the marginalized Orang Asli people. Power differentials between the groups allow the state to ignore and violate their rights, and they often remain in the shadow of state politics and interests.

The politics of rights Although theoretically sound and attractive due to the focus on equality and respect for all, rights-based approaches in forced migration face several challenges. First, they are perceived to come at a cost to states and governments. Provision of rights and equal access to rights, including socio-economic rights, requires public spending. Thus, their extension to non-citizens or

18 Forced Displacement

citizens who do not count meets with opposition. In order for rights-based approaches to be fully operational, they have to be accepted not only by governments, but they also have to constitute an integral part of the donors’ agenda of development aid. By providing integrated development assistance to both nationals and refugees, and integrating assistance to those subjected to forced displacement, the rights of all marginalized groups can be addressed in a comprehensive manner. Behrooz Morvaridi’s chapter discusses how a social protection approach that addresses human rights concerns can both increase the agency of displaced people as well as allow for an inclusion of a rights-based approach within wider national strategies and policies that also confronts structural inequalities. Second, there is a disconnect between theoretical and practical concerns around people’s basic needs and rights. As many of the studies in this volume testify, displaced people’s needs are easier to address through assistance programmes. Hence, donors and aid agencies often choose to embark on meeting practical needs rather than creating long-term environments where the rights of all displaced could be realized. Manzoul Assal, in his account of IDPs in Sudan, argues that the international community has to do more for the protection of IDPs if their rights are to be recognized. In Sudan, the issue of rights for IDPs becomes even more confusing as there are in fact two separate governments responsible for the displaced: the National Unity government in Khartoum and the Southern Sudan government in Juba. When it comes to the guaranteeing of rights, IDPs fall between the cracks and the international organizations are only preoccupied with the return of IDPs regardless of their preferences. Third, a top-down vision of rights, as well as the disconnection between those in power who impose policies and those whom these policies affect, creates other contradictions. Rarely are displaced persons themselves seen as actors in the process of policy creation and implementation, as their acceptance or rejection of certain programmes might determine the fate of these policies. The way oustees, IDPs or refugees engage and interact with the policy environment varies, depending on the home or host country conditions (for example, freedom of expression and the possibility to demonstrate). As Mehta and Gupte (2003) point out, it is important to acknowledge the need to recognize the universality of recipient rights while simultaneously taking a deeper look at the individual’s situation, treating individuals as responsible actors, and creating a legitimate space for involving refugees and displacees in decision-making processes. Perceptions held by displaced populations of policies and programmes combined with their understandings of rights and own priorities have a direct influence on the outcome of policies, and ultimately on the livelihoods of the displaced. Jaber Suleiman’s chapter demonstrates how in some cases Palestinians, like other refugees, prioritize different rights at different times. Often they are willing to forgo the immediate benefits of access to socio-economic rights in the pursuit of

Introduction 19

their greater goal of the right to return to Palestine. The case of Sudanese refugees in Egypt (Grabska) highlights how refugees strive to access multilayered protection which includes both civil and political rights as well as social, economic and cultural rights and livelihoods security. Through the example of Eritrean refugees’ dilemmas about return to their country of origin, Gaim Kibreab points to the choices that refugees make with regards to both the type of rights that they are able to access in their countries of exile and origin compared to livelihood opportunities offered to them. Lastly, the main problem of rights-based approaches lies in the locus of responsibility to guarantee, provide and implement rights and access to rights. There is the tendency for institutions to pass the buck amongst themselves. Or indeed, displaced people are unclear as to who is actually responsible for their rights. The chapters by Barbara Harrell-Bond, Katarzyna Grabska and Samira Trad and Michael Kagan demonstrate how refugees in the Middle East are caught between the UNHCR on the one hand, and an unsympathetic host government on the other, with neither assuming full responsibility for their rights. They also discuss in detail the institutional failures on the part of the UNHCR to uphold refugee rights. The concluding chapter by Harrell-Bond provides powerful reflections on the problems and potential of protest. Lyla Mehta discusses how rights violations of Narmada dam oustees take place with impunity, even though the oustees are full citizens of India and despite a dynamic protest movement. This is due to sins of omission (i.e. the lack of awareness of rights and the lack of resources to implement rights) or, more often, due to sins of commission (where rights are knowingly violated by powerful actors such as the Indian government or the World Bank). Thus accountability mechanisms through which displaced people can seek redress must be an indispensable part of the human rights regime in forced migration, without which rights will continue to be violated with impunity.

Conclusion Introducing a rights regime to oustee, refugee and IDP issues has the potential to overturn the injustices encountered by refugees and oustees, protect them from the violations of basic rights that they encounter almost daily and also award them with the agency to shape their own life-choices around settlements, livelihoods and social networks in their new homes. But several on-the-ground contradictions persist concerning the origins of rights, their implementation, contestation, and questions concerning obligations and responsibilities. These issues are of more than just academic interest: the perpetuation of flawed policies, programmes and interventions vis-`a-vis refugees and internally displaced people not only slides them into impoverishment processes but also denies them their rights as national and global citizens.

20 Forced Displacement

The book seeks to reverse these processes by shedding light on how the perspectives and rights of displaced people can and must be taken seriously. It also provides lessons on the challenges of implementing rights-based approaches in forced migration policy and practice. It demonstrates how rights are slowly realized and how institutions may become more responsive as a result of the growing struggles of displaced people. This book’s findings engage with debates which are of concern to academics, practitioners, activists and policy-makers in forced displacement/resettlement research, practice and struggles as well as to the displaced themselves. The underlying message emanating through all the chapters is the undeniable importance of rights in displaced people’s lives, and the necessity to guarantee access and protect these rights on the part of states and a range of international and national institutions. This is the only way that the current injustices against the world’s growing displaced populations can begin to be addressed. Notes 1. We are very grateful to Rebecca Napier-Moore for her research assistance. Some sections of this chapter draw on Mehta and Gupte (2003) and we thank Jaideep Gupte for his insights and support. 2. The term ‘oustee’ is borrowed from the Indian literature on displacement and resettlement, where it is commonly used to describe people ‘ousted’ from their habitat through government intervention, generally for the purpose of some development-required change in land or water use (see Mehta and Gupte 2003). The term ‘oustee’ is preferable to ‘development-induced displaced’ people or ‘resettlers’ since the latter terms do not highlight the unjust and coercive nature of forced uprooting. 3. Poor data exist on the numbers of persons affected by development-induced displacement throughout the world. Unlike for refugees and internally displaced persons (IDPs), there are no institutions or publications dedicated to tracking overall development-induced displacement, either at the global or national levels. Even the World Bank’s 10 million a year figure largely focuses on those physically ousted from legally acquired land in order to make way for the planned project. This ignores other indirect forms of displacement (e.g. those living downstream from dam projects whose livelihoods are usually adversely affected or those affected by natural resource extraction) (see Stanley 2004). 4. The focus of several chapters on the Middle East arises due to the crucial role played by FMRS (Cairo) in the planning and execution of several studies funded by the Development Research Centre on Migration, Globalization and Poverty. 5. In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) which was virtually endorsed by all states. It is premised on the inherent dignity and worth of all human persons, regardless of background, class, race etc. It is constituted by the International Covenant on Civil and Political Rights (ICCPR) which has 160 parties and the International Covenant on Economic, Social and Cultural Right (ICESCR), which has 156 parties (as of April 2007, UNCHR 2007b).

Introduction 21 6. For example, James Hathaway at the keynote address at the June 2006 conference of the International Association for the Study of Forced Migration in Toronto spoke against opening up the forced migration debate to the concerns of IDPs. According to him, IDPs have humanitarian and basic human rights needs, like all people within sovereign borders. Hathaway differentiates this need from refugees, whose defining characteristic is crossing borders. This, thus, places them under the jurisdiction of international (vs. national) law. We, however, question whether being able to flee a national border should provide a displaced person with more protection. In most cases, those who flee but remain within national borders are at the bottom of the pile in their own country and the state continues to ignore and violate their rights (see Assal, this volume). Furthermore, this narrow definition of a displaced person ignores the phenomenon of development-induced displacement which is no doubt on the rise in the twenty-first century. 7. The 1951 Convention lists a number of rights which should be guaranteed for refugees by the host government. The following Articles refer to the right to work in the country of asylum: Article 17 re: wage-earning employment, Article 18 re: self-employment, Article 19 re: liberal professions, Article 13 re: movable and immovable property, and Article 14 re: artistic rights and industrial property. 8. Article 22 guarantees access to public education for refugee children and Article 23 deals with access to public relief. 9. Article 3 addresses the issue of non-discrimination and Article 16 talks about access to courts. 10. Two Articles mentioned in the Convention address the issue of freedom of movement, including Article 26 directly talking about freedom of movement and Article 28 dealing with travel documents. 11. According to the UNHCR, there are three possible outcomes: voluntary repatriation, local integration or resettlement to a third country. 12. The Guiding Principles on Internal Displacement form UN document E/CN.4/1998/53/Add.2, dated 11 February 1998. 13. Authors such as Ignatieff (1984) and Illich (1978, 1988) have shown how in welfare states, the state and its bureaucrats define and administer the needs of citizens for health, welfare and so on. Ignatieff argues that this is done to equalize everybody’s chances for a free life (1984). This logic, however, is absent when it comes to taking care of displaced people who instead often encounter confinement and may lack the chances for a free life. Illich’s critique of the basic needs approach is very relevant for our book and for the case of displaced people. For him the notion of ‘basic needs’ ends up defining people negatively, especially the marginalized, whose needs become professionally definable. The needs-defined discourse thus ‘characterizes our alienation from one another. We live among strangers who are no less strangers because we feel responsibility for financing their care. Needs, translated into demands for care, mediate our responsibility for the other, exempting us from responsibility to him’ (Illich 1988: 2 of 2). 14. The 1986 General Assembly Declaration on the Right to Development endorses individuals’ rights to participate and enjoy economic, social, cultural and political development to realize fundamental human freedoms. This also includes the right to self-determination over the natural environment and resources. The right to participation is drawn from the various Articles of the International Bill of Human Rights, and specifically ILO Convention 169. Similarly, the Right to Livelihood is founded in the UDHR and Articles 6 and 11 of the ICESCR (see Robinson 2003: 14).

22 Forced Displacement

References Al Sharmani, M. 2003, ‘Livelihood and Identity Contractions of Somali Refugees in Cairo’, Working Paper No. 2, Forced Migration and Refugee Studies, The American University in Cairo. Appleyard, S. and OHCHR 2002, ‘A Rights-Based Approach to Development: What the Policy Documents of the UN, Development Coorporation and NGO Agencies Say’, OHCHR Asia-Pacific, Background Paper, Human Rights Roundtable No. 1: ‘A Rights-based Approach to Development’, 4 October. Asif, M. 2000, ‘Why Displaced Persons Reject Project Resettlement Colonies’, Economic and Political Weekly, 10 June, 2006–8. Bakewell, O. 2003, ‘Community Services in Refugee Aid Programmes: a Critical Analysis’, UNHCR Working Paper Series, 82. Bayefsky, A. F. and J. M. Fitzpatrick (eds) 2000, Human Rights and Forced Displacement, Boston: Martinus Nijhoff Publishers. Brocklesby, M. A. and S. Crawford 2005, ‘Rights-based Development: a Guide to Implementation’, available at http://www.equalinrights.org/file.html?id=1577 Cernea, M. M. 1997, ‘The Risks and Reconstruction Model for Resettling Displaced Populations’, World Development 25(10): 1569–88. Cernea, M. M. 2000, ‘Risks, Safeguards, and Reconstruction: a Model for Population Displacement and Resettlements’, in M. M. Cernea and C. McDowell (eds), Risks and Reconstruction: Experiences of Resettlers and Refugees, Washington, DC: World Bank. Clark, T. 2004, ‘Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation’, International Journal of Refugee Law 16(4): 584–608. Collinson, S. 2005, ‘Lessons Learned from Specific Emergency Situations: a Synthesis’, in S. Castles and N. Van Hear (eds), Developing DFiD’s Policy Approach to Refugees and Internally Displaced Persons, Consultancy Report and Policy Recommendations, 2 vols, Refugees Studies Centre, Oxford. Cowan, J., M. Dembour and R. Wilson 2001, Culture and Rights: Anthropological Perspectives, Cambridge: Cambridge University Press. Crisp, J. 2001, ‘Mind the Gap! UNHCR, Humanitarian Assistance and the Development Process’, Journal of Humanitarian Assistance, Working Paper No. 43, New Issues in Refugee Research, available at http://www.jha.ac/articles/u043.htm Darcy, J. and C. A. Hofmann 2003, ‘According to Need? Needs Assessment and Decision-Making in the Humanitarian Sector’, Humanitarian Policy Group Report 15, Overseas Development Institute, London. Deng, F. M. and R. Cohen 1998, Masses in Flight: the Global Crisis of Internal Displacement, Washington, DC: Brookings Institution Press. De Vriese, M. 2006, ‘Refugee Livelihoods: a Review of the Evidence’, Geneva: UNHCR, EPAU/2006/04. Downing, T. and G. Kushner (eds) 1988, Human Rights and Anthropology, Cambridge, MA: Cultural Survival. Goldewijk, B. K. and B. de Gaay Forman 1999, ‘Where Needs Meet Rights: Economic, Social and Cultural Rights in New Perspectives’, Geneva: WCC Publications. Gupte, J. and L. Mehta 2007, ‘Disjunctures in Labelling Refugees and Oustees’, in J. Moncrieffe and R. Eyben (eds), The Power of Labelling: How People are Categorized and Why it Matters, London: Earthscan. Hammerstad, A. 2005, ‘Making or Breaking the Conflict Cycle: the Relationship Between Underdevelopment, Conflict and Forced Migration’, in S. Castles and N. Van Hear (eds), Developing DFiD’s Policy Approach to Refugees and Internally Displaced

Introduction 23 Persons, Consultancy Report and Policy Recommendations, 2 vols, Refugees Studies Centre, Oxford. Haraway, D. 1989, ‘The Science Question in Feminism and the Privilege of Partial Perspective’, Feminist Studies 14(3): 575–97. Harrell-Bond, B. 1987, Imposing Aid, Oxford: Oxford University Press. Hathaway, J. 1991, The Law of Refugee Status, Toronto: Butterworths. Hathaway, J. 2005, The Rights of Refugees Under International Law, Cambridge: Cambridge University Press. Hathaway, J. 2006, ‘Opening Plenary Keynote Address’, International Association for the Study of Forced Migration, 10th Annual Conference, Toronto, Canada, 18 June. Hemadri, R., H. Mander and V. Nagaraj 2000, ‘Dams, Displacement, Policy and Law in India’, prepared for Thematic Review 1.3: Displacement, Resettlement, Rehabilitation, Reparation and Development, World Commission on Dams, http://www.dams.org (accessed July 2006). Hyndman, M. 1997, ‘Geographies of Displacement: Gender, Culture and Power in UNHCR Refugee Camps, Kenya’, PhD thesis, Faculty of Graduate Studies, Dept. of Geography, University of British Columbia, September. Ignatieef, M. 1984, The Needs of Strangers, London: Chatto & Windus. Illich, I. 1978, Towards a History of Needs, New York: Pantheon. Illich, I. 1988, Interview, Whole Earth Review. http://findarticles.com/p/articles/ mi m1510/is n61/ai 6896816 (accessed December 2007). Internal Displacement Monitoring Centre 2007, Internal Displacement: Global Overview of Trends and Developments in 2006, Geneva: IDMC. Jacobsen, K. 2002, ‘Livelihoods in Conflict: the Pursuit of Livelihoods by Refugees and the Impact on the Human Security of Host Communities’, Expert Working Paper, February 2002, prepared for the Center for Development Research study: Migration Development Links: Evidence and Policy Options. Jacobsen, K. and L. B. Landau 2003, ‘The Dual Imperative in Refugee Research: Some Methodological and Ethical Considerations in Social Science Research on Forced Migration’, Disasters, 27: 95–111. Kabeer, N. 2005, Inclusive Citizenship: Meanings and Expressions, London: Zed Books. Kenny, K. 2000, ‘When Needs Are Rights: an Overview of UN Efforts to Integrate Human Rights in Humanitarian Action’, Occasional Papers, 38, Providence, RI: Thomas J. Watson Jr. Institute for International Studies, Brown University. Kibreab, G. 2001, ‘Displaced Communities and the Reconstruction of Livelihoods in Eritrea’, Discussion Paper No. 2001/23, WIDER, United Nations University. Malkki, L. 1992, ‘National Geographic: the Rooting of Peoples and the Territorialization of National Identity among Scholars and Refugees’, Cultural Anthropology, 7: 24–44. Mehta, L. (ed.) forthcoming, Displaced by Development: Confronting Marginalisation and Gender Injustice, New Delhi: Sage. Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-based Approaches in Forced Migration’, Development Research Centre on Migration, Globalization and Poverty, University of Sussex, Working Paper T4. Mies, Maria 1978, ‘Methodologische Postulate zur Frauenforschung – dargestellt am Beispiel der Gewalt gegen Frauen’, Beitr¨age zur feministischen theorie und praxis 1: 31–63. Moser, C. and A. Norton, with T. Conway, C. Ferguson and P. Vizard 2001, To Claim our Rights: Livelihood Security, Human Rights and Sustainable Development, London: Overseas Development Institute.

24 Forced Displacement Nyamu-Musembi, C. 2005, ‘An Actor-oriented Approach to Rights in Development’, IDS Bulletin, Brighton: Institute of Development Studies. Offenheiser, R. and S. Holcombe 2003, ‘Challenges and Opportunities in Implementing a Rights-based Approach to Development: an Oxfam America Perspective’, Non-profit and Voluntary Sector Quarterly, 32. Oxfam 2007, ‘Oxfam’s Work in Thailand in Depth’ (http://www.oxfam.org.uk/ resources/countries/thailand.html), updated January 2007 (accessed 2 November 2007). Plant, R. 1998, ‘Citizenship, Rights, Welfare’, in J. Franklin (ed.), Social Policy and Social Justice, Cambridge: Polity Press. Posner, M. and D. Clancy 2005, ‘A Human Rights-Based Approach to Refugee Assistance’ (http://www.humanrightsfirst.org/intl refugees/issues/refs rights.htm) (accessed 3 August 2005). Robinson, C. 2003, ‘Risks and Rights: the Causes, Consequences, and Challenges of Development-Induced Displacement’, Occasional Paper, The Brookings Institution – SAIS Project on Internal Displacement. Save the Children 2002, ‘Child Rights Programming: How to Apply Rights-Based Approaches in Programming’, Save the Children, Stockholm. Slim, H. 2001, ‘Not Philanthropy But Rights: Rights-Based Humanitarianism and the Proper Politicisation of Humanitarian Philosophy in War’, Humanitarian Practice Network Conference Paper, February 2001, Overseas Development Institute, London. Stanley, J. 2004, ‘Development-induced Displacement and Resettlement. FMO Research Guide’ (http://www.forcedmigration.org/guides/fmo022/) (accessed May 2007). Stavropoulou, M. 1998, ‘Displacement and Human Rights: Reflections on UN Practice’, Human Rights Quarterly 20(3): 515–54. Turton, D. 1996, ‘Migrants and Refugees’, in T. Allen (ed.), In Search of Cool Ground: War, Flight and Homecoming in Northeast Africa, Trenton: Africa World Press. Turton, D. 2003, ‘Refugees, Forced Resettlers and ‘‘Other Forced Migrants’’: Towards a Unitary Study of Forced Migration’, New Issues in Refugee Research, Working Paper No. 94, UNHCR, Geneva. UN 1948, ‘Universal Declaration of Human Rights, General Assembly resolution 217 A (III) of 10 December 1948’, New York: UN, available at: http://www.un.org/ Overview/rights.html UN 2007, ‘United Nations Declaration on the Rights of Indigenous Peoples’ (A/RES/61/295), New York: UN, available at: http://www.un.org/esa/socdev/unpfii/ en/declaration.html (accessed 6 December 2007). UNHCR, 2005, 2004 Global Refugee Trends, Geneva: UNHCR. UNHCR 2007a, ‘2006 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons’, UNHCR, Geneva, www.unhcr.org UNHCR 2007b, ‘Ratifications and Reservations, 3 & 4’, UNCHR, Geneva, www.ohchr. org/english/countries/ratification UNHCR 2007c, Statistical Yearbook 2005: Trends in Displacement, Protection and Solutions, Geneva: UNHCR, www.unhcr.org UNICEF 2007, ‘Realising Rights, Getting Results’, UNICEF, Geneva, http://www.unicef. org/rightsresults/index.html Van Hear, N. 1998, New Diasporas: the Mass Exodus, Dispersal and Regrouping of Migrant Communities, London: UCL Press.

Introduction 25 Verdirame, G. and B. Harrell-Bond (with Zachary Lomo and Hannah Garry) 2005, Rights in Exile: Janus-Faced Humanitarianism, New York, Oxford: Berghahn Books. Voutira, E. and B. Harrell-Bond 1995, ‘In Search of the Locus of Trust: the Social World of the Refugee Camp’, in E. V. Daniel and J. C. Knudsen (eds), (Mis)Trusting Refugees, Berkeley: University of California Press. Voutira, E. and B. Harrell-Bond 2000, ‘ ‘‘Successful’’ Refugee Settlement: Are Past Experiences Relevant?’ in M. Cernea and C. McDowell (eds), Risks and Reconstruction: Experiences of Resettlers and Refugees, World Bank, Washington DC, pp. 56–76. Wood, G. 1985, Labelling in Development Policy: Essays in Honour of Bernard Schaffer, London: Sage Publications. World Commission on Dams (WCD) 2000, Dams and Development: a New Framework for Decision Making, London and Sterling, VA: Earthscan Publications Ltd. Zetter, R. 1985, ‘Refugees – Labelling and Access’, in G. Wood (ed.), Labelling in Development Policy, London: Sage, pp. 87–101. Zetter, R. 1988, ‘Refugees and Refugee Studies – a Label and an Agenda’, Journal of Refugee Studies 1: 1–6. Zetter, R. 1998, ‘International Perspectives on Refugee Assistance’, in A. Ager (ed.), Refugees: Perspectives on the Experience of Forced Migration, London: Continuum, pp. 46–82.

2 Protection and Durable Solutions: Regimes for Development and Conflict-Induced Internally Displaced and Resettled Populations Robert Muggah

There is growing optimism in development and humanitarian quarters that an international regime is emerging to promote and safeguard the rights and needs of internally displaced people. Human rights advocates are adamant that it is not so much an expansion of the existing refugee regime as something radically different. They contend that the new regime is apparent in the discursive and behavioural adaptations made by states, non-state actors, multilateral agencies and non-governmental agencies (Bagshaw 2000; Cohen 2001, 2004; Deng 2007). Oddly, despite a rapid expansion of policy and action research on internal displacement in the latter half of the twentieth century, there was less empirical consideration of the normative parameters of the nascent regime. The former High Commissioner of UNHCR, Ruud Lubbers (2004), was an ardent champion of the new regime for internally displaced persons (IDPs). He argued that the United Nations acted as a central reference point for a regime composed by member states. He determined that the ‘issuing of guiding principles . . . devising of a collaborative approach among agencies [and the creation of] an IDP unit within OCHA [Office for the Coordination of Humanitarian Affairs] to act as focal point within the system’ were all key characteristics. The regime satisfied the interests of states because it contained and reduced would-be refugees while preserving the rights and needs of IDPs in situ. The Guiding Principles on Internal Displacement offered a predictable set of rules (to lower transaction costs) and the IDP unit constituted an incipient decision-making mechanism. By opening the door to diverse potential outcomes for IDPs – whether constraints on asylum, voluntary return, resettlement, citizenship and their accompanying entitlements – the regime draws attention to the complex relationships between displacement, rights and needs, a central theme animating this volume. 26

Protection and Durable Solutions 27

But can one really speak of a single over-arching regime for protecting IDPs and promoting durable solutions? A growing coalition of UN agencies and scholars certainly believe so and are adamant that states should take responsibility for internally displaced populations irrespective of the attributed cause (IASC 2005; UN 2005; Weiss and Korn 2006). This chapter contends that there are in fact two or more contiguous regimes focused on different categories of displaced persons: a development-induced displacement and resettlement (DIDR) regime and a conflict-induced displacement and resettlement (CIDR) regime.1 These regimes are expected to contribute to the protection of the internally displaced and promote durable solutions on their behalf.2 While sharing common ground, they also exhibit distinctive features. Drawing on both rationalist and constructivist approaches to regime theory, regimes are defined as implicit and explicit principles, norms, rules and decision-making procedures around which the expectations of diverse actors converge. Regimes are forged and sustained by a prolonged exchange between states, multilateral agencies, advocacy coalitions and public policy networks. Regimes draw from accepted norms and standards and are inter-subjectively moulded by those who advocate on their behalf. Regimes are thus state-centric and designed to guide state behaviour and potentially influence non-state behaviour. An underlying contention of this chapter is that ‘ideal type’ regimes for DIDR and CIDR are declarative, restorative and decentralized. Put another way, these regimes are prescriptive rather than proscriptive, emphasize the restoration of rights and needs and are operationalized by a diverse constellation of institutions and agencies. These regimes also exhibit intrinsic limitations. Because they are by definition top-down and universalizing, they only partially accommodate the highly differentiated interests and agency of states, non-state actors and the internally displaced. Regimes are also frequently unevenly applied by governments and non-governmental agencies despite efforts to promote conditionality and enforce compliance through inspections panels, domestic codification, guidelines and specialized financing arrangements. Vicissitudes in influence are in part endogenous to regimes themselves: states ensure that they are born weak. Because regimes are top-down they only partially allow for the contestation of rights and are poorly equipped to account for resistance from below.3 Factors inhibiting their influence include the persistence of national sovereignty paradigms narrowly conceived in terms of nonintervention and collective action dilemmas among multilateral and bilateral actors responsible for regime application. Still, through providing state and non-state action on displacement, regimes can potentially play a key role in promoting the rights and interests of IDPs. Although states play a decisive role in the design and administration of regimes, a major contribution to their evolution comes from transnational advocacy coalitions and public policy networks. Composed of action researchers, activists and diplomats, they contribute to a cascade of norms

28 Forced Displacement

and rules through a purposeful process of state–civil society bargaining. While ideational flows are not necessarily unidirectional in the case of regimes, concepts and values were frequently transferred from research to policy. In certain cases, policy-makers were former practitioners or academics and vice versa. In other cases, universities, training institutes and even practitioner journals expanded awareness on the issue. A crucial feature of regime deepening and expansion includes the generation and dissemination of shared understandings of complex problems, the nurturing of shared values and expectations and the generation and dissemination of information. Activist and action researchers play a central role in their evolution and spread and play an important part in defining the parameters of the debate on protection and durable solutions. In examining the normative expression of these regimes – through archival reviews of conventions, resolutions and statements as well as through key informant interviews with decision-makers and practitioners – it is possible to detect the ways in which regime supporters served as policy entrepreneurs.

Regimes and forced migration The concept of regimes is a relatively well-established feature of international relations, but is more often deployed in fields such as the environment, human rights and trade in order to predict how and why states cooperate on particular issues of international concern (Risse et al. 1999; Yarbrough and Yarbrough 1987; Young 1989) than in forced migration studies.4 Since the early 1980s, political scientists have disagreed over what precisely constitutes a regime (Hasenclever et al. 1997; Keohane 1993; Strange 1988). Regime theorists can be separated into two distinct camps reflecting clear and long-standing divisions in the rationalist and constructivist traditions. The rationalist school focuses on power and rational choice or interest-based explanations to explain state behaviour in relation to regime formation (see Axelrod and Keohane 1985; Hasenclever et al. 1997; Krasner 1998). Constructivists draw more from inductive, subjective and knowledge-based or relativist perspectives to explain how states and non-state actors give meaning to regimes (see Haas 1989; Habermas 1987; Wendt 1992). Despite their differences, rationalists and constructivists concede that a regime includes a principled element characterized by a degree of shared and inter-subjective understandings of an issue and reciprocal expectations held by states and other actors. Regimes also incorporate a normative and rule-based element encapsulated in multilateral agreements and prescriptive guidelines and adopt some form of ‘decision-making structure’ responsible for promoting, disseminating and, where possible, managing and enforcing associated norms and rules. The value of regime theory is that it explains how principles, norms, rules and decision-making procedures can shape state and non-state behaviour. Crucially, it permits a more structured and coherent appraisal of seemingly

Protection and Durable Solutions 29

chaotic phenomena, highlighting the rationale behind specific forms of international action. While the actions of states, non-state actors and non-governmental agencies are potentially influenced by regimes, the process is also iterative (Zeender 2005). Indeed, support for and compliance with regimes can generate certain benefits such as positive recognition, visibility and reputation enhancement. The principles, norms and rules that apportion out rights and duties are determined by more than (state) self-interest. Constructivist contributions to regime theory suggest that regime formation and compliance is also potentially motivated by a shared understanding of a common good (Finnemore and Sikkink 1998; Hurrell 2002). Thus, regimes are predicated to a certain extent on a common and dynamic moral consciousness of state representatives that can be engineered, adapted and shared by individuals within a moral community. Commenting on the refugee regime, Goodwin-Gill (2000: 2) observes that ‘international solidarity and cooperation are key fixtures in a regime oriented to protection and solutions’. Regime influence is often inhibited by both narrow interpretations of state sovereignty and collective action dilemmas. Weiss and Korn (2006) consider how traditional understandings of sovereignty have persistently hampered more progressive approaches to protection for internally displaced populations. Betts (2005) also describes how in the case of the refugee regime, protection constitutes a collective or ‘public’ good. Despite the benefits accrued by all states regardless of who provides refugee asylum, he predicts that the prospects for cooperation and burden sharing are poor, owing to freeriders. For example, certain states may perceive the cost of non-participation to be low and then transfer responsibilities to other states or the UNHCR. Collective action dilemmas are equally common among regime proponents in cases where decision-making mechanisms are not clearly defined.

An international refugee regime Despite decades of policy research and action, there are still tremendous challenges to achieving protection and durable solutions for displaced populations. A ‘comprehensive international regime for forced migrants . . . [with] internally displaced persons at the centre’ has yet to emerge (Loescher 2000: 210). Even in the case of the refugee regime wherein the UN Security Council, the UNHCR and national immigration departments are technically accountable for protection and durable solutions, there are still profound disagreements over how to ensure that the full spectrum of rights and needs of refugees are addressed in sustainable and dignified ways (Muggah 2007a, 2007b). The basic normative bedrock of the refugee regime consists of a combination of principles including humanitarianism, non-discrimination and non-refoulement, the right of refugees not to be returned by force to their country of origin (see Table 2.1). These principles were codified into a cluster

30

Table 2.1 Regime principles, norms, rules and decision-making procedures Principles

Norms

Rules

Decision-making procedures

Refugee regime

Humanitarianism; non-discrimination; non-refoulement; protection; durable solutions

Refugee law; international humanitarian law; human rights law

1951 Refugee Convention; 1967 Protocol and regional refugee agreements; 1969 OAU (now African Union) Refugee Convention; 1948 Universal Declaration of Human Rights (UDHR); 1966 Covenant on Civil and Political Rights (CCPR); 1966 UN Covenant on Economic, Social and Cultural Rights (ESCR)

UNHCR, Excom

DIDR regime

Minority and indigenous rights; right to compensation; durable solutions

International and national human rights law

1980/91 World Bank Involuntary Resettlement Guidelines and sister Bank guidelines; UDHR; CCPR; ESCR; 1986 Declaration on the Right to Development; 1957/1989 ILO Indigenous and Tribal Peoples Convention; 2007 Declaration on the Rights of Indigenous Peoples

World Bank, ADB, IADB

CIDR regime

Preventive protection; non-discrimination; voluntarinessdurable solutions

Refugee law: international humanitarian law; international and national human rights law

1998 Guiding Principles for Internal Displacement and Regional IDP Agreements; UDHR, CCPR and ESCR; 2006 Pinheiro Principles; 1965 International Convention on All Forms of Racial Discrimination; 1981 International Convention on the Elimination of All Forms of Discrimination Against Women; 1989 Convention on the Rights of the Child

UNHCR; OCHA-IDD; International Committee of the Red Cross (ICRC); UNCHR; UNGA; World Bank

Protection and Durable Solutions 31

of rights for refugees – rights that are supposed to be guaranteed by states in reciprocal arrangements.5 Gibney (1999: 177) describes humanitarianism as the principle ‘affirming the existence of certain responsibilities owed by agents (individuals and states) to outsiders by virtue of their shared membership of a single human community’. It is codified in the Geneva Conventions and Protocols and other international humanitarian legal instruments. Nondiscrimination emphasizes essential equalities and is a central tenet of both human rights law6 and refugee law and articulated in Article 3 of the 1951 Refugee Convention and the 1967 Protocol. Normative claims to ‘protection’ and ‘asylum’ are founded on the principle of non-refoulement which is also spelled out in the Refugee Convention and Article 3 of the 1984 Torture Convention. The refugee regime draws on a number of key norms and rules that are prescriptive and proscriptive on state action. For example, the 1948 Universal Declaration of Human Rights codifies the personal, legal, social, economic, cultural and political rights of civilians, including refugees (Stedman and Tanner 2003). The Refugee Convention, the Protocol and the Statute of the UNHCR constitute the normative basis of the refugee regime.7 Signatories to the Refugee Convention and the 1967 Protocol, as well as associated regional declarations and resolutions, are expected to abide by the norms and rules contained therein. The Refugee Convention did not grant refugees the right of asylum which remained a national prerogative. Even while national sovereignty remains the dominant paradigm in which regimes operate, tensions persist over its interpretation and parameters and the rights of international (military) intervention to uphold humanitarian law and human rights in cases where core norms and rules are flagrantly violated (Evans 2007). Some rules set clear standards such as the equitable (legal) treatment of refugees in line with nationals. Others are more informative and entail various monitoring, reporting and, in rare cases, verification arrangements.8 Rules may also be introduced to support the transfer and sharing of information – ostensibly to promote transparency in relation to state compliance with higher-order rules and decisions. In best-case scenarios, regime rules are codified into national law and are thus directly responsible for stimulating changes to state behaviour. These rules may lead to the formation and enhancement of human rights structures, ombudsmen and related commissions at the local level.9 Though overseen by states, decision-making procedures of the refugee regime were vested in a separate organ, the UNHCR. States are nevertheless the final arbiters of national refugee policy as expressed by immigration laws and the mandates and activities of relevant ministries and departments (as several authors in this volume demonstrate). Despite the relevance of discrete principles, norms, rules and decision-making procedures, state interpretation and engagement with the refugee regime is ultimately discretionary.

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While the UNHCR plays a pivotal role in generating and sharing information, promoting and strengthening international and domestic norms and monitoring implementation,10 its capacity to enforce compliance was intentionally circumscribed from the beginning. As a rule, the UNHCR only operates in cases where (host) state consent or acquiescence is agreed. Thus the refugee regime generally monitors existing guidelines, promotes the transfer and exchange of information and provides assistance at the request of states, rather than acting autonomously. Certain international relations theorists concede that regimes are born weak (Haggard and Simmons 1987; Hasenclever et al. 1997). The refugee regime is no exception: it is in many ways a normatively strong but procedurally weak regime. It purposefully included a number of key exemptions. From the 1950s to the early 1970s internally displaced persons were consciously excluded (Loescher 2000: 215–16; UN 1972). Reductions in asylum since the 1970s and the increase in UN Security Council-sanctioned interventions in the 1990s resulted in certain pressures on the regime to simultaneously extend the conceptual (as opposed to legal) definition of refugees and promote ‘in-country’ solutions. The expansion of the UNHCR’s mandate had the potential to extend the legal obligations of states – a concern that did not go unnoticed among refugee scholars (Martin 1995: 422–3). Despite recent efforts within the UNHCR to adopt a more proactive approach to ‘protecting’ refugees and internally displaced populations, many doubt that the agency can do much more than it already does (Hathaway 2006).

A regime for DIDR In the aftermath of the Second World War, the prevailing development paradigm was one of nation-building and modernization. Planned interventions to promote social progress were frequently advanced by forceful, often authoritarianism, state intervention (Gibson 2001; Heilbroner 1962; Scott 1998). By the late 1980s, an estimated 10 million people were being displaced and relocated each decade by infrastructure projects in just three sectors (hydro-power, urban renewal and transportation) (Cernea 2005). The social costs were considered by elites to be tolerable: ‘national’ industrialization required certain sacrifices, even (especially) if these were to be experienced by the poor, marginalized and weaker segments of society at the periphery. These bold ‘development projects’ included ‘villagization’ of peasant farmers, the ‘sedentarization’ of pastoral groups and ‘transmigration’ to rural areas. Central planners and donors justified their ideologies and actions by claiming that ‘backwardness’ could be halted and reversed through large-scale development projects entailing extensive social and demographic transformation. In countries as diverse as Brazil, China, Ethiopia, India, Indonesia, Jordan, Sri Lanka, the US and Zambia, massive dam-building, power-generation and irrigation schemes were in effect radical experiments

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in social and economic engineering (see the chapters by Morvaridi, Mehta, Yong, this volume). Developed countries promoted these ambitious ‘development’ projects on the grounds that they might stimulate economic growth and strengthen geopolitical alliances. They also generated considerable returns on investment for foreign contractors and construction firms. When viewed through a political economy lens, technological and capital transfers in support of trickle-down development promised positive-sum gains. But when seen from a rights perspective, such initiatives often violated the fundamental socioeconomic human rights and entitlements of literally hundreds of millions of people. The growing political, economic and social costs of major infrastructure projects on the livelihoods of those forced to move were not lost on early researchers and activists. By the mid-1970s there began a relatively progressive diffusion and deepening of global principles and norms expected to roll back the pernicious consequences of large-scale development projects on specific vulnerable groups. A rash of new norms emerged designed to protect and preserve human rights and the environment, especially the rights of first nations, indigenous and minority populations. The Universal Declaration of Human Rights (1948), the Indigenous and Tribal Populations Convention and Recommendation (1957, 1989), the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights (1966) offered templates for rights-based advocacy (see Table 2.1). Growing interest in the promotion of ‘equitable’ and ‘sustainable’ development revealed mounting resistance from within civil society to aggressive or ‘high’ modernization (Scott 1998). In the 1980s, activist scholars and practitioners – many of them intensely engaged in the formulation and propagation of rights-based norms – began to criticize state-planned development that justified economic growth at the expense of both individual and collective rights (Sachs 1990; Scott 1998). A cadre of forced migration scholars began documenting and publicizing the negative externalities of resettlement (Cernea 1990; Dwivedi 2002). Drawing lessons from a variety of failed resettlement schemes from Latin America to South and Southeast Asia, they consciously advocated development alternatives that either abandoned DIDR altogether, or mitigated related pathologies through carefully prepared, decentralized and culturally sensitive interventions. The influence of their pioneering work on state authorities was initially comparatively meagre. At the same time, a growing constituency of donor governments, aid agencies and activists galvanized around a disparate cluster of principles and norms expected to minimize the incidence and adverse effects of DIDR. An advocacy coalition composed of researchers and practitioners began to impress upon policy-makers and representatives of states, multilateral financial institutions and the private sector, the extensive and far-reaching

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(human) consequences on particular groups. Cernea (2005: 10) emphasized how this new evidence, combined with resistance to DIDR, stimulated awareness of and changes in states’ understanding of the issue. Key innovations during this period included the emergence of norms condemning the arbitrary eviction of minorities and indigenous people, codified a decade later by the UNCHR.11 More general rights to equitable development in the context of resettlement were also actively taken up at the World Social Summit in Copenhagen (1995) and integrated into the Final Declaration and the Programme of Action on Poverty Reduction several years later. The World Bank played a central role – as both target and exponent – in DIDR regime formation. Building on mounting pressure from social resistance movements, advocacy coalitions targeted the World Bank and the agency’s supporters in a bid to force them to alter both the accepted rules and decision-making procedures associated with planned resettlement. The World Bank, along with counterparts such as the Inter-American Development Bank (IADB), the Asian Development Bank (ADB), and the African Development Bank (AfDB), were all heavily invested in various aspects of the enterprise. As their global portfolio and share in resettlement-inducing projects steadily dropped from the 1970s onwards (as developing countries began to identify alternative sources of capital with which to finance large-scale development projects), they began explicitly to recognize the risks accompanying controversial investments and were determined to avoid them (Cernea 2004; Economist 2007; Hall 2005). Responding to internal as well as external pressures, the World Bank drafted a set of involuntary resettlement guidelines during the 1980s to positively influence both donor and borrower practices. The agency’s first concrete policy response – or rules – included an ‘Operational Manual Statement’ (OMS) 2.33 in 1980 that tied resettlement planning to environmental impact assessments and required that ‘each project should ensure a distinct treatment regime [sic] for this group, a ‘‘package’’ of special measures, to be described in a new instrument integral to the project: the ‘‘resettlement action plan’’ (RAP)’ (Cernea 2005: 12). The first test of the guidelines occurred during an appraisal of the Narmada Sardar Sarovar Dam project in India (see Mehta, this volume). Following a protracted debate and review by World Bank-appointed sociologists, the guidelines were considered to be effective in shaping DIDR planning. With the subsequent release of a highly critical internal review of World Bank-assisted agriculture and hydro-electric projects (1979–85), senior managers rapidly updated the guidelines by way of ‘Operations Policy Note’ (OPN) 10.98 in 1986 (World Bank 1986). By 1988, the World Bank integrated OMS and OPN into a single set of public guidelines in multiple languages. Thus, ‘Operational Directive 4.30: Guidelines on Involuntary Resettlement’ was introduced following the restructuring of the World Bank in 1990. Indirectly sanctioned by the World Bank’s shareholders, the revised Guidelines introduced transparent rules to instruct lender and borrower

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behaviour and practice. The World Bank and its associated agencies assumed a decision-making function for the DIDR regime by default. In expanding the application of the Guidelines, the World Bank and its partners initiated a dialogue to support the (re)formulation, codification and implementation of resettlement legislation in borrower countries. This extended to legislation pertaining to specific social and economic rights (such as the restitution of property and compensation for expropriation) as well as concrete proposals to ensure that certain needs were met, particularly with respect to economic livelihood restoration and transparent governance in resettlement planning. The 1990s witnessed a norm cascade as the DIDR regime began to take hold. Owing to the pressure applied by the World Bank and its sister agencies, but also growing unease over resistance to forcible relocation and controversy arising from negative publicity, the governments of Brazil, China, Colombia, Mexico, the Philippines, Uganda and Sri Lanka, among others, eventually adopted basic provisions of the Guidelines and began processes to codify them into national law and policy directives. The Guidelines reflected certain principles demanded by advocacy coalitions. Although some human rights groups contend that the Guidelines did not go far enough, prescriptions include the minimization of DIDR where possible, special safeguards for minority and indigenous rights and investment in, restoration of and even improvement of living standards, earnings and production capacities to pre-displacement levels (see Table 2.1). These safeguards extended to the protection of specific economic, social and cultural rights and needs. They also borrowed from accumulated best practice, requiring that ousted populations be adequately consulted, relocated in groups and on a ‘voluntary’ basis, provided with compensation regardless of whether they held legal title or deeds, and resettled as close as possible to their original land. In order to enhance rule adherence, the World Bank actively disseminated the Guidelines among borrower governments, requiring them to adapt their own national policy and legal frameworks to the new resettlement standards. With the re-opening of the debate on ‘safeguards’ by the Asian Development Bank in 2008, certain advocates fear that social and environmental standards may be diluted (ADB 2008). Nevertheless, the Guidelines also began to register inroads among private sector actors. Cernea (2005) observed a ‘ripple-effect’ among private lenders including export-import banks, petroleum companies and private creditors. Following meetings of the World Bank’s lending arm for the private sector (International Finance Corporation, IFC) with major European investment banks, a set of voluntary ‘Equator Principles’ were adopted in 2003. These Principles expressed a commitment to adhering to strict environmental and social practice and constituted a watershed in regime expansion. The extent to which the emerging DIDR regime is enforced and sanctions are effective is more difficult to measure. For one thing, representatives of the World Bank and associated advocacy coalitions discovered that the

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preparation and dissemination of normative guidelines did not guarantee their practical application, much less demonstrated changes in the access to rights or livelihoods of resettled minorities (see Mehta, this volume). The challenges of ‘intervening’ variables such as state capacity were observed early on: It is easy to understand that in complex situations such as those created by imposed relocations [sic], weaknesses of the local systems and civil service may distort the outcome of government programmes. This is why it is often necessary to strengthen the local legal instruments available for addressing resettlement matters. (Shihata 1993: 40) Unsurprisingly, just after the World Bank established its Independent Inspection Panel in 1993 to monitor and enforce compliance more assertively, certain borrowers began to turn to private capital or alternative lenders when they felt conditions were too stringent. While the more stringent provisions introduced by the Bank’s 2001 revised Guidelines – Operational Policy 4.12 – and the concept of ‘impoverishment risks’ have been criticized by advocacy coalitions for watering down certain provisions of earlier iterations (Clark forthcoming; Downing 2002),12 they and the emergence of the ‘Equator Principles’ nevertheless represent steps to enhancing regime reach and influence (Lazarus 2004). Even so, the conclusions of the World Commission on Dams (2000) emphasize the persistent weaknesses of the incipient DIDR regime regarding its capacity to induce fundamental changes in state behaviour – and the tendency of governments to simply ignore them. These limitations notwithstanding, the ultimate measurement of regime existence and influence is not exclusively determined by changes in state behaviour. Indeed, even when states do not abide by the proscriptions of regimes, certain types of principles, norms or rules must exist to account for the (external) determination of non-compliance and the implementation of sanctions.

A regime for CIDR Despite international engagement with displacement across five decades, an incipient regime for CIDR only surfaced in the early 1990s. The international refugee regime was from the beginning considered an ideal theoretical model conceptually and practically to situate the rights and needs of populations internally displaced, returned and resettled by war. As early as 1949, the Greek government informed the UN General Assembly that the internally displaced populations should, like refugees, have access to international aid even if they could not be awarded ‘international protection’. The 1951 Convention already tentatively stretched the mandate of the international community, including the UNHCR, to include ‘others of concern’. Though not by design,

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these included millions of people internally displaced by partition between India and Pakistan in the 1950s, hundreds of thousands of civilians dislocated by a vicious conflict in Nigeria’s Biafra region in the late 1960s, and millions of others internally displaced from Africa’s independence struggles (Goetz 2001). As with the DIDR regime, developed and developing states were intensely wary of creating a regime for protecting and promoting durable solutions for people internally displaced by war. Although fundamental tenets of the refugee regime were still considered contentious and controversial to a number of states that refused to sign or ratify the 1951 Convention and 1967 Protocol, precedents for the CIDR regime quietly emerged below the radar. A particularly important case occurred in 1972 following the approval by the UN Economic and Social Council (ECOSOC) and the UN General Assembly, of UNHCR operations in southern Sudan to assist ‘[third country] resettlement of refugees returning from abroad, as well as persons displaced within the country’ (UN 1972) – an initiative that later evolved into Operation Lifeline Sudan (OLS). As the UN and members states felt increasingly compelled to protect internally displaced people in Guinea-Bissau, Angola, Mozambique (1974) and Vietnam and Laos (1975), a growing coalition of regime advocates began quietly to engage with the topic. Though many trace CIDR regime formation to activities undertaken by the former Special Representative on Internal Displacement during the 1990s (Weiss and Korn 2006), from the mid-1970s onwards, a number of UN General Assembly resolutions affirmed the role of the UNHCR to support IDPs. A key normative instrument included Article 9 of its statute which observed that ‘the High Commissioner shall engage in such additional activities . . . as the General Assembly may determine within the limits of the resources placed at his disposal’ (UNGA Resolution 428 (V) of 14 December 1975). By the 1980s, the agency and its core donors were staging regular conferences on how to manage both refugee and internal displacement flows in Africa (ICIHI 1986; UNHCR 2001). Concerns over what to do with the internally displaced were fast climbing up the international agenda in the mid-1980s precisely because ‘it was neither reasonable nor feasible to treat the two categories [refugees and IDPs] separately’ (UNHCR 1994). A set of norms, rules and decision-making procedures underpinning state and non-governmental responses to CIDR gradually emerged in the late 1980s and early 1990s that would remain essentially unchanged for the following two decades. Because of its transformative effect on UN mandates and institutions, UN Resolution 688 (1991) which authorized ‘safe havens’ for internally displaced Kurds in northern Iraq was considered a key operational precedent for a progressive regime for so-called ‘conflict IDPs’.13 The safe haven concept was eventually extended, with mixed results, to internally displaced populations in Sri Lanka soon after the arrival of the UNHCR in 1987, and Bosnia and Herzegovina in the early 1990s (Hyndman 2003).

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The Balkan conflicts marked a critical turning point for the consolidation of the CIDR regime as Western European countries pushed aggressively for the ‘right to remain’ of would-be refugees in the former Yugoslavia (Barutciski 1998). By the early 1990s, the accepted prerequisites for UNHCR intervention on behalf of IDPs included authorization from the UN General Assembly, UN Secretary General, or another principal organ of the UN; consent of the concerned state; the relevance of UNHCR’s experience in situ; and fiduciary capacities (UNGA 1993b). With the firm backing of former High Commissioner Sadaka Ogata and diplomats from the US and Northern European countries, the UNHCR adopted a working definition of internal displacement in 1992.14 The overall caseload ‘of concern’ to UNHCR began to increase in the 1990s from 17 to 21.1 million (from 1991–8), many of whom included IDPs (UNHCR 2005). By the end of the twentieth century, less than half of the agency’s entire ‘population of concern’ consisted of refugees (Loescher 2000; UNHCR 2001). The incipient regime appeared to be successfully achieving what proved to some critics to be one of its more invidious aims: the containment of prospective refugees.15 Owing to the clear potential for the CIDR regime to be construed as a form of Western interventionism or as detrimental to the refugee regime, its development proceeded cautiously and in deference to state concerns with sovereignty. Many of the core principles associated with the CIDR regime were formalized in the early 1990s. For example, the UN General Assembly repeatedly affirmed ‘its support for the [UNHCR] High Commissioner’s efforts . . . to provide humanitarian assistance and protection to persons displaced within their own country in specific situations’.16 The UNHCR elaborated de facto rules to guide activities focusing not just on protection, but also ‘ascertaining that return or resettlement is taking place voluntarily in conditions of safety and dignity; facilitating the actual return or resettlement movement process; monitoring the conditions of those who are returned/settled/resettled . . . and assisting (re)integration’ (UNHCR 2001: 13). Regime proponents started to encourage state buy-in by actively promoting additional principles such as ‘in-country’ solutions and ‘preventive protection’ for the internally displaced (Cohen 1996). This emphasis on in-country solutions coincided with clear strategic shifts in the international priorities of certain North American and Western European states. Refugees had lost much of their geopolitical currency following the Cold War and no longer captured the public imagination of liberal Western democracies (Loescher 2001; Roberts 1998). Governments of developed countries claimed that they could broker comparatively little domestic support for (third country) ‘resettlement’ of large numbers of refugees from developing states and began to actively privilege a ‘rights-based’ discourse to justify solutions closer to the site of displacement and a pragmatic strategy of preventing further flows by providing domestic ‘flight alternatives’.

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At the same time, a growing number of hosting countries once lauded for their hospitality towards refugees were also growing increasingly impatient with their massive caseloads – particularly as the (temporary) refugee camps set up in the 1970s and 1980s were acquiring a more permanent character (UNHCR 2004). Developing countries hosting massive refugee populations in Africa, Latin America, the Balkans and Southeast Asia began raising uncomfortable questions about ‘burden sharing’ and the double standards exhibited by North American and Western European governments as they actively restricted third-country resettlement throughout the 1990s (Loescher and Milner 2005). Members of the UNHCR’s Executive Committee began to concede publicly that the refugee regime – designed to accommodate the political and economic realities of Western Europe during the post-Second World War era – was no longer commensurate with contemporary realities. As a result, the Executive Committee began to refine its mandate and obligations with respect to CIDR between 1993 and 1997 (UNHCR 1997). Even while the issue of internal displacement acquired growing international notoriety throughout the 1990s, questions emerged over the practicalities of how to operationalize key tenets of the CIDR regime. A major question concerned how the UNHCR, already overburdened, might expand its role further still. Certain donors, displacement specialists and practitioners initially called for an extension of the refugee regime to include internally displaced persons, who lived in refugee-like circumstances. These proposals were rejected by orthodox refugee regime supporters, themselves legal experts closely allied with the UNHCR (Barutciski 1998, 1999; Kingsley-Nyinah 1999; Rutinwa 1999). As with the turmoil generated by the Guidelines within the World Bank, the UNHCR was polarized over the asylum dilemma posed by internal displacement: did responding to internal displacement stretch the agency’s mandate a bridge too far? Even when couched in the then familiar principles of preventive protection and the right to remain, there were concerns among some UNHCR supporters that tampering with refugee law and the decisionmaking structures of the refugee regime could unintentionally undermine the asylum principle. The International Committee of the Red Cross (ICRC) was suspicious that singling out assistance on the basis of presumed categories of need, rather than demonstrated vulnerability, could unintentionally create a privileged group and discriminate against others equally in need.17 From the beginning there was ‘a tension between those who felt that existing law provided adequate coverage for the rights of the internally displaced and those who advocated a new regime’ (Bagshaw 1998: 12). An incubating forum for the new CIDR regime emerged from global public policy networks (Bagshaw 1998, 2000; Weiss and Korn 2006). Less adversarial than the advocacy coalitions that shaped the DIDR regime, these networks were composed of scholars, activists and non-governmental agencies that worked together with like-minded donor states and international

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institutions – especially the UNCHR. As predicted by constructivists, these networks facilitated an iterative process of value formation and transposition of ideas across both institutional and even sector-specific boundaries. Crucially, by embedding the issue of CIDR in the UNCHR, norm entrepreneurs such as the Quaker UN Office and state representatives from Austria and Norway managed to leverage a Special Representative on the topic in 1992 (Weiss and Korn 2006). Led by the new Special Representative, Francis Deng, and activist scholars such as Roberta Cohen, Walter Kalin and others, the eventual establishment of the Guiding Principles for Internal Displacement laid the foundations of the CIDR regime. A review of humanitarian, human rights and refugee law beginning in 1992 determined that while existing (international) law addressed many aspects of CIDR, an array of institutional and legal gaps remained where protection and durable solutions for IDPs were not sufficiently addressed. The 1994 compilation of principles confirmed that there were no clearly articulated rules and no single agency or decision-making mechanism within the UN with specific responsibility for CIDR and recommended that the issue either be added to the mandate of an existing agency or that an equivalent entity be established. The compilation concluded that the legal basis for providing protection prior to displacement could be strengthened significantly by articulating a ‘right not to be arbitrarily displaced’ (Baghsaw 2000: 14). The Guiding Principles were formally agreed by consensus in the UNCHR in 1998 (UN 1998). The Principles formalized and rearticulated the basic shared principles, norms and rules under which the protection, care and maintenance and durable solutions (read: return and resettlement) for internally displaced people were to be undertaken (see Table 2.1). As with the DIDR Guidelines, the Principles suggested that a threshold had been breached whereby certain norms became institutionalized in a specific set of rules and organizations (Finnemore and Sikkink 1998). Immediately after they were issued, the UNHCR and other multilateral and non-governmental agencies, such as the UN OCHA and the World Food Programme, formally endorsed the Principles and sought to disseminate them, even if there remained some lingering disagreements over their application. Owing in part to the absence of a clear decision-making structure to advance the Principles, many were critical about their relevance and potency in terms of shaping action.18 Nevertheless, it was expected that their dissemination and codification into national legislation and practice would enhance the power of the emerging CIDR regime. The basic rules issued by the Guiding Principles were rapidly endorsed by a number of states and institutions. For example, Angola, Azerbaijan, Burundi, Colombia, Georgia, Liberia, Nepal, Peru, the Philippines, Russia, Serbia and Montenegro, Sri Lanka, Turkey, Uganda and the United States made explicit references to the Principles in their national laws or relevant policies on internal displacement, and by 2005 the Principles were available in more

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than forty languages. Reminiscent of the Equator Principles discussed above, the Guiding Principles were also actively disseminated to armed non-state actors in conflict-affected areas of several countries (Zeender 2005). Some regional organizations also responded, such as the African Union which adopted a policy on CIDR in 2006 (Beyani 2006). Disagreement continues over the ‘decision-making’ mechanism for the CIDR regime (see Table 2.1). Active supporters called on UNHCR to assume a more muscular role in the regime’s advancement (Cohen and Deng 1998) or demanded that a new agency be created, though key states and multilateral agencies resisted the creation of a centralized international decision-making mechanism that could translate rules into practice. While explicitly recommended in the Principles, it became apparent that a centralized entity was not politically feasible. The UNHCR continued to insist that at a minimum, interventions on behalf of IDPs had to be requested from or authorized by the UN Secretary General and had to be undertaken with the consent of national authorities. Despite the agency’s efforts to clarify its role, there was still considerable reluctance to approve more concerted involvement (UNHCR 2005). Still, there remain unresolved problems. Instead of collaborating and working as a collective, agencies often adopted a ‘pick and choose’ approach on the basis of their mandates, resources and interests. The weaknesses of the collaborative response were assumed to lie in large part with its lack of leadership and resources, the absence of predictable standards (Bagshaw and Paul 2004) as well as the highly competitive nature of relief and development assistance. In recognition of these limitations, the UN introduced a ‘cluster approach’ to programming. Introduced in 2006, the cluster approach was intended to strengthen system-wide preparedness and technical capacities to respond to internal displacement in both conflict and natural disaster situations. Cluster ‘leads’ were assigned for emergency shelter, protection, health, nutrition, water, hygiene and sanitation, early recovery, logistics and emergency telecommunications. Although the UNHCR’s role was confined to ‘shelter and camp management’ and ‘protection’ it nevertheless retained a dominant role in operationalizing the CIDR regime. There are indications that a decision-making mechanism is beginning to emerge within the UNHCR by default. In 2002, a specialized unit was created in OCHA – the inter-agency internal displacement division (IDD). The IDD was expected to bolster voluntary compliance, but was hampered from the beginning by limited authority and resources and considerable criticism by proponents of the CIDR regime. The UN Security Council and General Assembly also continued to remonstrate for more compliance among states and for cooperation between non-governmental agencies.19 Following a process of humanitarian reform within the UN in 2005 and 2006, the UNHCR (2007: 3) reported that it ‘must reposition itself to provide protection and assistance to displaced people in need, regardless of whether they have crossed an international border’.

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By 2007, the UNHCR had launched a corporate strategy and established an internal unit within the agency to advance a rights-based approach to CIDR. The UNHCR (2007: 5) declared that ‘all IDP activities and operations undertaken by the Office will incorporate the norms, standards and principles of international human rights and humanitarian law, as well as the United Nations’ Guiding Principles on Internal Displacement.’ Further, the agency announced that ‘UNHCR will also advocate on behalf of these norms, standards and principles’ (ibid.: 5). The recent positioning of responsibility for IDPs in the UNHCR and the gradual reduction of OCHA responsibilities suggests that that the former is assuming enhanced ‘decision-making functions’ for the CIDR regime. Moreover, the expansion of the Guiding Principles into realms of development and natural disaster reveals increased potential for regime convergence in the twenty-first century.

Conclusions The application of regime theory to conceptualizing normative and bureaucratic responses to internal displacement reveals the underlying constellation of motivations and interests shaping state, non-state and non-governmental behaviour. By tracing out the parameters of individuated regimes for different categories of internal displacement and resettlement, it becomes possible to compare and learn from them. In their points of convergence and divergence, such analysis reinforces the value of a unitary approach to appraising forced migration. Regimes for DIDR and CIDR emerged from a combination of adversarial and cooperative exchanges between states, academics and activists within specific epistemic communities. They exhibit occasionally overlapping principles, norms and rules that are expected to contain further displacement (by minimizing it at the outset and restoring livelihoods) while simultaneously protecting and promoting durable solutions. Proponents of each regime consciously draw from existing standards in international human rights, humanitarian and refugee law in justifying interventions. In both cases, regimes are characterized by highly decentralized decisionmaking mechanisms that rely on national authorities and non-governmental agencies. While each regime varies in its capacity to influence state, nongovernmental, non-state and private sector behaviour, their existence is not necessarily dependent on demonstrated behavioural changes of these actors. As observed by Puchala and Hopkins (1982: 247) a ‘regime need not serve the common or separate interests of every participant very well or even at all . . . most regimes function to the advantage of some participants and to the disadvantage of others’. While states play the decisive role in the design and administration of regimes, a major contribution to the evolution of these two regimes comes from advocacy coalitions and public policy networks which have contributed

Protection and Durable Solutions 43

to the cascade of norms through a purposeful process of state–civil society bargaining. Lyla Mehta’s discussion in this volume of the struggle of oustees displaced by the Narmada Project provides a direct example of this practice. These networks recognized that a crucial feature of regime deepening and expansion was the generation and dissemination of shared understandings of complex problems, the nurturing of shared expectations and values and the generation and dissemination of information on the ‘problem’. Regime proponents also understood that rule generation and consolidation could be fostered through formal and customary means. Regimes are expected to enhance the predictability and coherence of state and non-state actions towards protection and durable solutions. Regime proponents sought to encourage this by cementing and codifying relevant commitments and obligations in multilateral resolutions, national legislation, informal guidelines and contracts and declarations and statements. Even where norms are codified and enshrined in national legislation, rules are not necessarily followed. There is a formidable range of challenges that confront the full realization of the two regimes. The persistence of classical sovereignty paradigms presents a constraint to their full actualization. The collective action problems plaguing multilateral agencies – their persistence due in part to the decentralized nature of regimes themselves – are core hurdles unlikely to be surmounted in the short term. Notwithstanding their acknowledged differences, there appears to be a growing convergence between the two regimes. Their key rules – encapsulated in the Guidelines and Principles – are increasingly being applied in protection and durable solution functions for multiple categories of displacement, as demonstrated in several chapters in this volume. Notes 1. Owing to space constraints, it is not possible to examine natural disaster-induced internal displacement and resettlement (NIDR) in this chapter, which constitutes potentially yet another regime (Muggah, forthcoming). 2. Protection extends beyond legislative frameworks and legal entitlements to real and perceived security and well-being. Likewise, durable solutions refer to sustainable and equitable resettlement, as well as local integration and return. 3. The aspect of regimes being top-down and not able to cope well with resistance from below is demonstrated in some of the case studies in this book. Harrell-Bond and Grabska present the contestation of the refugee system or regime in Egypt and elsewhere. Mehta and Yong discuss challenges to the emerging regimes or systems of protection for development-induced oustees whereas Assal describes the IDP contestations in Sudan. 4. Notable exceptions include Betts (2005), Newland and Papdemetriou (1998) and Roberts (1998). In addition, Cohen (2004) and Mooney (2005) have applied regime theory to IDPs. 5. Hathaway (2006: 3) describes the acquisition of these rights through refugee status as ‘a categorical designation that reflects unique ethical and consequential legal entitlements that make claims on the international community’.

44 Forced Displacement 6. The duty of non-discrimination is the sole human rights protection specifically mandated by the UN Charter (Article 1(3)): ‘[e]very instrument, whether international or regional, requires the state to respect and ensure to all persons within its territory and subject to its jurisdiction the guaranteed rights without distinction of any kind’. See, for example, Hathaway (2006: 14) and Jayawickrama (2002: 174). 7. The Refugee Convention and its 1967 Protocol were ratified by 134 states. There are 45 state parties to the 1969 OAU Refugee Convention and 18 state parties to the 1984 Cartagena Declaration on Refugees. 8. The refugee regime is moderately coherent on account of the number of states that ratified normatively significant conventions and covenants. The Refugee Convention and its 1967 Protocol have been ratified by 134 states. There are 45 state parties to the 1969 OAU Refugee Convention and 18 state parties to the 1984 Cartagena Declaration on Refugees. 9. In the case of the Refugee Convention and Protocol, the number of state parties exceeds the one third proportion that regime proponents claim indicates ‘norm cascades’ which ultimately results in ‘internalization’ (Finnemore and Sikkink 1998). 10. Along with the UNHCR, certain UN treaty and non-treaty bodies such as the UNCHR (established in 1993 and relaunched as the UN Human Rights Council following recommendations issued by the UN High Level Panel on Threats and Change in 2004), also play a role in monitoring compliance. 11. See, for example, Resolution 1990/17 and 1993/77 of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities. 12. More recently, the International Finance Corporation (the World Bank Group agency that funds private sector investments without a sovereign government guarantee) issued its own social and environmental safeguard policies on resettlement. These have drawn mixed reviews from civil society organizations but represent the standards now applied by the Equator banks. Interview with Robert Picciotto, November 2006. 13. According to OCHA (2003), the response to internal displacement in Iraq spurred on the creation of the Emergency Relief Coordinator’s post (Resolution 46/182, 19 December 1991), the Inter-Agency Standing Committee, and the Department of Humanitarian Affairs, as well as the appointment of the Representative of the Secretary General on Internally Displaced Persons in 1992. 14. The definition includes ‘people who were part of a single population, some of whom had crossed a border and others who had not; people who might become refugees if their needs could not be addressed in their own countries, or newly returned refugees who were not back in their original homes’. 15. It is important to stress the clear cleavages between supporters of the CIDR regime (Cohen and Deng 1998; Martin 2004; Mooney 2002) and critics (Barutciski 1999; Dubernet 2001) with regard to the ‘containment’ of IDPs. Mooney describes the latter as ‘containment conspiracy theorists’. Correspondence, November 2006. 16. See UN General Assembly Resolution 46/116, December 1993. This would later be reinforced by Executive Committee Conclusion No. 75 in 1994; UN General Assembly Resolution A/RES/49/169 on 25 February 1995; and UNHCR Executive Committee Conclusion No. 87 in 1999. 17. Conversely, supporters of the CIDR regime contended that IDPs did not constitute a new category, but rather a distinct category of ‘need’ warranting assistance (Cohen and Deng 1998; Vincent and Sørensen 2001).

Protection and Durable Solutions 45 18. Various aspects of the Principles were later strengthened by additional subsidiary standards emerging several years later. The UN Principles on Housing and Property Restitution for Refugees (‘Pinheiro Principles’) also draw from existing international, humanitarian and refugee law and are expected to ensure that the ‘right to return’ and ‘rights to restitution’ are understood and sanctioned by states and non-state actors. See Muggah (forthcoming). 19. See General Assembly Resolution (A/RES/58/177 2004) which requests the strengthening of ‘inter-agency arrangements and the capacities of the United Nations agencies and other relevant actors . . . [for] an effective, accountable and predictable collaborative approach’.

References ADB (Asian Development Bank) 2008, ‘Asian Development Bank will not weaken or dilute existing social and environmental policies, panel told’, Bank Information Center. http://www.bicusa.org/en/Article.3356.aspx Axelrod, R. and R. O. Keohane 1985, ‘Achieving Cooperation under Anarchy: Strategies and Institutions’ World Politics 38(1): 226–54. Bagshaw, S. 1998, ‘Internally Displaced Persons at the Fifty-fourth Session of the United Nations Commission on Human Rights, 16 March–24 April 1998’, International Journal of Refugee Law 10(3): 548–56. Bagshaw, S. 2000, ‘Developing the Guiding Principles on Internal Displacement: the Role of Global Public Policy Network’, UN Vision Project on Global Public Policy Networks, http://www.globalpublicpolicy.net/fileadmin/gppi (accessed October 2005). Bagshaw, S. and D. Paul 2004, ‘Protect or Neglect? Toward a More Effective United Nations Approach to the Protection of Internally Displaced Persons’, paper for the Brookings-SAIS Project on Internal Displacement and the UN Office for the Coordination of Humanitarian Affairs, Inter-Agency Internal Displacement Division, Geneva. Barutciski, M. 1998, ‘Tensions between the Refugee Concept and the IDP Debate’, Forced Migration Review 3: 11–14. Barutciski, M. 1999, ‘Questioning the Tensions between the Refugee and IDP Concepts: a Rebuttal’, Forced Migration Review 4: 35. Betts, A. 2005, ‘International Cooperation Between North and South to Enhance Refugee Protection in Regions of Origins’, Working Paper Series 25, Oxford: Queen Elizabeth House, RSC. Beyani, C. 2006, ‘Recent Developments in the Treatment and Protection of Internally Displaced Persons’, unpublished paper. Cernea, M. 1990, ‘Poverty Risks from Population Displacement in Water Resources Development’, Discussion Paper, Harvard Institute for International Development, Cambridge: Harvard. Cernea, M. 2004, ‘The Typology of Development-Induced Displacements: Field of Research, Concepts, Gaps and Bridges’, paper presented at the workshop on Typologies of Relevance in Forced Migration, US National Academy of Sciences, Washington, September. Cernea, M. 2005, ‘The Ripple Effect in Social Policy and its Political Content’, in M. Likosky (ed.), Privatising Development: Transnational Law, Infrastructure and Human Rights, Leiden: Martinus Nijhoff.

46 Forced Displacement Clark, D. forthcoming, ‘Overview of Revisions to the World Bank Resettlement Policy’, in L. Mehta (ed.), Displaced by Development: Confronting Marginalisation and Gender Injustice, New Delhi: Sage Publications. Cohen, R. 1996, ‘Protecting the Internally Displaced’, World Refugee Survey, New York: United States Committee for Refugees. Cohen, R. 2001, ‘Exodus within Borders: the Global Crisis of Internal Displacement, Sofia, Bulgaria’, http://www.unhcr.bg/lecture/roberta cohen.htm (accessed November 2006). Cohen, R. 2004, ‘The Guiding Principles on Internal Displacement: an Innovation in International Standard Setting’, Global Governance 10: 459–80. Cohen, E. and F. Deng (eds) 1998, The Forsaken People, Washington, DC: Brookings Institute. Deng, F. 2007, ‘The Guiding Principles on Internal Displacement and the Development of International Norms’, in T. Biersteker, P. Spiro, C. Sriram and V. Raffo (eds), International Law and International Relations: Bridging Theory and Practice, London: Routledge. Downing, T. 2002, ‘Creating Poverty: the Flawed Economic Logic of the World Bank’s Revised Involuntary Resettlement Policy’, Forced Migration Review 12: 11–12. Dubernet, C. 2001, The International Containment of Displaced Persons: Humanitarian Spaces without Exit, Aldershot: Ashgate. Dwivedi, R. 2002, ‘Models and Methods in Development-induced Displacement’, Development and Change 33(4): 709–32. Economist, The 2007, ‘That Empty-nest Feeling’, The Economist, 8–14 September: 57–8. Equator Principles 2003, http://www.equator-principles.com Evans, G. 2007, ‘The Limits of State Sovereignty: the Responsibility to Protect in the 21st Century’, Eighth Neelam Tiruchelvam Memorial Lecture, Colombo: International Centre for Ethnic Studies (ICES), Colombo, 29 July. Finnemore, M. and K. Sikkink 1998, ‘Norms and International Relations Theory’, International Organization 52(4): 887–917. Gibney, M. 1999, ‘Liberal Democratic States and Responsibilities to Refugees’, American Political Science Review 93(1): 169–81. Gibson, D. 2001, ‘The World Bank and Displacement: the Challenge of Heterogeneity’, in M. Esman and R. Herring (eds), Carrots, Sticks and Ethnic Conflict: Rethinking Development Assistance, Ann Arbor: University of Michigan Press. Goetz, N. 2001, ‘Humanitarian Issues in the Biafra Conflict’, New Issues in Refugee Research Working Paper 36, Geneva: UNHCR. Goodwin-Gill, G. 2000, ‘Migration: International Law and Human Rights’, in B. Ghosh (ed.) Managing Migration: Time for a New International Regime? Oxford: Oxford University Press. Haas, P. M. 1989, ‘Do Regimes Matter?’ International Organization 43(4): 377–404. Habermas, J. 1987, The Theory of Communicative Action, vol. 2: Lifeword and System: a Critique of Functionalist Reason, London: Heinemann. Haggard, S. and B. Simmons 1987, ‘Theories of International Regimes’, International Organization 41(3): 491–517. Hall, A. 2005, ‘Widening Horizons? Social Development and Social Policy in the World Bank’, presentation for the ESRC seminar, London, 2–3 June. Hasenclever, A., P. Mayer and B. Rittberger 1997, Theories of International Regimes, Cambridge: Cambridge University Press. Hathaway, J. 2006, ‘Forced Migration Studies: Could We Agree Just to ‘‘Date’’?’ Program in Refugee and Asylum Law, University of Michigan.

Protection and Durable Solutions 47 Heilbroner, R. 1962, The Making of Economic Society, Englewood Cliffs: Prentice-Hall. Hurrell, A. 2002, ‘Norms and Ethics in International Relations’, in W. Carlnaes, T. Risse and B. Simmons (eds), Handbook of International Relations, London: Sage Publications. Hyndman, J. 2003, ‘Preventive, Palliative or Punitive: Safe Spaces in BosniaHerzegovina, Somalia and Sri Lanka’, paper for the International Association for Forced Migration Conference, 5–9 January. IASC (Inter-Agency Standing Committee) 2005, ‘Internally Displaced Persons: Strengthening UN Agency Accountability in Crises of Internal Displacement’, Background Paper, Geneva: IASC. Independent Commission on International Humanitarian Issues (ICIHI) 1986, Refugees: Dynamics of Displacement. A Report for the Independent Commission on International Humanitarian Issues, London: Zed Books. Jayawickrama, N. 2002, The Judicial Application of Human Rights: National, Regional and International Jurisprudence, Oxford: Oxford University Press. Keohane, R. 1993, ‘The Analysis of International Regimes: Towards a EuropeanAmerican Research Programme’, in V. Rittberger (ed.) Regime Theory and International Relations, Oxford: Oxford University Press. Kingsley-Nyinah, M. 1999, ‘What May be Borrowed: What is New?’ Forced Migration Review 4: 32–3. Krasner, S. D. 1998, ‘Sovereignty: an Institutional Perspective’, Comparative Political Studies 21(1): 66–94. Lazarus, S. 2004, ‘The Equator Principles: a Milestone or Just Good PR?’ Global Agenda, 26 January. Loescher, G. 2000, ‘Forced Migration in the Post-Cold War Era: the Need for a Comprehensive Approach’, in B. Ghosh (ed.), Managing Migration: Time for a New International Regime? Oxford: Oxford University Press. Loescher, G. 2001, The UNHCR and World Politics: a Perilous Path, Oxford: Oxford University Press. Loescher, G. and J. Milner 2005, ‘Protracted Refugee Situations: Domestic and International Security Implications’, Adelphi Paper no. 375, Oxford: Oxford University Press. Lubbers, R. 2004, Opening Statement by Mr Ruud Lubbers, United Nations High Commissioner for Refugees, at the Fifty-fifth Session of the Executive Committee of the High Commissioner’s Programme, Geneva: UNHCR. Martin, D. 1995, ‘Refugees and Migration’, in O. Schachter and C. Joyner (eds), United Nations Legal Order, Vol. 1, Cambridge: Cambridge University Press. Martin, S. 2004, ‘Making the UN Work: Forced Migration and Institutional Reform’, Journal of Refugee Studies 17(3): 301–18. Mooney, E. 2002, ‘An IDP No More? Exploring the Issue of When Internal Displacement Ends’, Discussion Paper for City University of New York (CUNY)/Brookings, Washington, DC. Mooney, E. 2005, ‘The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern’, Refugee Survey Quarterly 24(3): 9–26. Muggah, R. 2007a, ‘The Death-knell of 4R?’ Humanitarian Practice Network Exchange 36: 25–7 Muggah, R. 2007b, ‘How the World Fails Internally Displaced People: the Sri Lankan Case’, Ottawa Citizen, 7 July. Muggah, R. forthcoming, Relocation Failures? A Short History of Internal Displacement and Resettlement in Sri Lanka, London: Zed Books.

48 Forced Displacement Newland, K. and D. Papdemetriou 1998, ‘Managing International Migration: Tracking the Emergence of a New International Regime’, UCLA Journal of International Law and Foreign Affairs, 3, Fall/Winter: 1–20. Office for the Coordination of Humanitarian Affairs (OCHA) 2003, No Refuge: the Challenge of Internal Displacement, Geneva: UN Office of the Coordinator of Humanitarian Affairs. Puchala, D. and R. F. Hopkins 1982, ‘International Regimes: Lessons from Inductive Analysis’, International Organization 36(2): 245–75. Risse, T., S. Ropp and K. Sikkink (eds) 1999, The Power of Human Rights: International Norms and Domestic Change, Cambridge: Cambridge University Press. Roberts, A. 1998, ‘More Refugees, Less Asylum: a Regime in Transformation’, Journal of Refugee Studies (11)4: 375–95. Rutinwa, B. 1999, ‘How Tense is the Tension between the Refugee Concept and the IDP Debate?’ Forced Migration Review 4: 29–31. Sachs, W. (ed.) 1990, Development Dictionary, London: Zed Books. Scott, J. 1998, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, New Haven, CT: Yale University Press. Shihata, I. 1993, ‘Legal Aspects of Involuntary Population Resettlement’, in M. Cernea and S. Guggenheim (eds), Anthropological Approaches to Resettlement: Theory, Policy and Practice, Boulder, CO: Westview Press. Stedman, S. and F. Tanner (eds) 2003, Refugee Manipulation: War, Politics and the Abuse of Human Suffering, Washington, DC: Brookings Institute. Strange, S. 1988, States and Markets, London: Pinter. UN 1972, ‘ECOSOC Resolution 1705 (LIII)’, 27 July. UN 1998, ‘Guiding Principles on Internal Displacement’, UN DocE/CN.4/1998/53/Add.2, 11 February. UN 2005, Mass Exoduses and Displaced Persons Addendum: Framework for National Responsibility, E/CN.4/2006/71/Add.1, 23 December. UNGA 1993a, Office of the United Nations High Commissioner for Refugees, G.A. res. 48/116, 48 UN GAOR Supp. (No. 49) at 231, UN Doc. A/48/49. UNGA 1993b, ‘Strengthening the Co-ordination of Emergency Humanitarian Assistance of the United Nations’, UN Doc A/RES/48/57, 14 December. UNGA 1993c, ‘Vienna Declaration and Programme of Action: World Conference on Human Rights’, A/CONF.157/2, 12 July. UNHCR 1994, EC/SPC/87, August. UNHCR 1997, The State of the World’s Refugees, Oxford: Oxford University Press. UNHCR 2001, ‘UNHCR Inter-Office Memorandum No. 77/2001: Operational Guidelines for UNHCR’s Involvement with Internally Displaced Persons’, Geneva: UNHCR, 24 September. UNHCR 2004, ‘Protracted Refugee Situations’, Executive Committee of the High Commissioner’s Programme, EC/54/SC/CRP.14. UNHCR 2005, ‘Consistent and Predictable Responses to IDPs: a Review of UNHCR’s Decision-Making Process’, Geneva: EPAU. UNHCR 2007, ‘Policy Framework and Corporate Strategy’, January, Geneva: UNHCR. Vincent, M. and B. R. Sørensen 2001, Caught Between Borders: Response Strategies of the Internally Displaced, London: Pluto Press. Weiss, R. and D. Korn 2006, Internal Displacement: Conceptualization and its Consequences, New York: Routledge Wendt, A. 1992, ‘Anarchy is What Sates Make of It: the Social Construction of Power Politics’, International Organization 46(2): 391–425.

Protection and Durable Solutions 49 World Bank 1980, ‘Issues in Involuntary Resettlement in Bank Financed Projects, Operational Manual Statement 2.30’, February, Washington, DC: World Bank. World Bank 1986, ‘Involuntary Resettlement in Bank Operations. A Review of the Application of Bank Policies and Procedures FY79–85 Projects’, Washington, DC: World Bank AGR (Michael Cernea). World Bank 1993, ‘Early Experience with Involuntary Resettlement: Overview’, Washington, DC: Operations Evaluation Department, World Bank. World Bank 1996, ‘World Bank Lending for Large Dams: a Preliminary Review of Impacts’, Washington, DC: Operations Evaluation Department, World Bank. World Bank 2000, ‘Resettlement Monitoring Through the World Bank Inspection Panel’, Mimeo, Washington, DC: World Bank. World Bank 2004, ‘Operational Policy 4.12’, Washington, DC: World Bank. World Commission on Dams 2000, Dams and Development: a New Framework for Decision-Making, London: Earthscan Publishing. Yarbrough, B. and R. Yarbrough 1987, ‘Cooperation and the Liberalization of International Trade: After Hegemony, What?’ International Organization 41: 1–26. Young, O. 1989, ‘The Politics of International Regime Formation: Managing Natural Resources and the Environment’, International Organization 45(3): 349–75. Zeender, G. 2005, ‘Engaging Armed Non-state Actors on Internally Displaced Persons Protection’, Refugee Survey Quarterly 24(3): 96–111.

3 Rights and Development-Induced Displacement: Risk Management or Social Protection? Behrooz Morvaridi

Introduction Irrespective of the regional setting and cause, all forms of displacement result in considerable disruption and loss of assets for both the individual and the collective, with greater likelihood of socio-economic impoverishment and reduced access to rights entitlements (Colson 2003; Crisp 1999; HarrellBond 1986; Mehta and Gupte 2003; Morvaridi 2004a; Oliver-Smith 1991). Although it is now established that displaced people face additional challenges in a new environment, living day to day with uncertainties around their survival, most conventional analyses have been concerned with physical resettlement and the livelihood restoral of people displaced as a result of conflict or large development projects, whether as refugees or internally displaced people (IDPs). There has been relatively little critical reflection on how policy frameworks can deliver the rights and entitlements of forced migrants, including who should be obliged to protect them and the relevance of individual agency, which are the core concerns of this volume.1 Drawing on empirical evidence from the Ilisu Dam setting in Turkey, this chapter critically engages with current internal displacement protection policies that are based on risk management or short-term relief measures. Several chapters in this volume discuss the linkage between displaced people’s access to rights and their livelihood security (see Grabska, Trad and Kagan, Kibreab, this volume). However, these can sometimes be overly managerialist and short-term as opposed to long-term strategies where states are seen to be responsible for enhancing the displaced person’s agency to realize his or her rights. For this to happen, states need strong transformative rights-based policy frameworks that serve the interests of displaced people. This chapter thus considers how a policy paradigm of social protection might offer a framework to minimize the loss of rights so often associated with displacement. My focus is on development-induced displacement but is also relevant for displacement across borders. Research on the Ilisu Dam project was based on 50

Rights and Development-Induced Displacement 51

field visits. Data collection took the form of observation and interviews with local people and communities to identify the perceived social and environmental impacts of the project. Informal interviews were conducted in several of the affected villages and included individual and focus group interviews with landless people, landowners, village heads and male and female household members. Although the choice was limited by access problems, a total of nine villages were selected for survey, based on livelihoods and farming practices and three types of land ownership patterns: small holdings or poor villages; villages with medium and large holdings; and villages owned by an aga (landlord) with landless tenant farmers. Displacement often results in the loss of basic rights that states have a responsibility to protect, as specified in Article 8 of the Declaration of Human Rights (1948): ‘equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income’. In theory, the displaced as rights holders should be able to enjoy these minimum entitlements and it is the duty of the rights bearer, the state, to deliver or protect these rights. However, as reflected by Dwivedi (2002) the current displacement discourse broadly falls into two perspectives. The first is the managerialist perspective, which has as its central focus analysis of the need to manage the inadequacies and failings of resettlement by minimizing negative impacts. The second perspective is essentially critical of this mainstream approach and considers displacement to be evidence that development has effectively failed to reduce poverty and inequality. This second approach questions the very legitimacy of development-induced displacement on the grounds of fundamental political issues, such as rights and governance. As it operates, the bureaucratic system within which displacement is managed and the legislative definitions and practices that it adopts tend to work against local people and deny them rights to protect their economic and social well-being (Morvaridi 2004a). Opponents of displacement document negative outcomes in order to deconstruct displacement, to critique the development structures that support it and to use its failings to highlight problems of development. One of the main exponents of the managerialist approach is Cernea (1997, 2000), who has developed a resettlement planning and risk management model underpinned by the premise that development necessitates changes in social relations (see also Mehta, this volume). Although Cernea recognizes that resettlement policies can fail to protect those at risk, his emphasis is to formulate strategies that will reconstruct or protect the livelihoods of those subject to resettlement. This approach, in one form or another, is reflected in guidance from the World Bank and other agencies such as the UN, EU and Asian Development Bank. The policy premise underpinning this methodology is that full payment of compensation at replacement cost for assets lost can achieve restitution of dispossessed assets and income sources.

52 Forced Displacement

Evidence of resettlement projects based on the risk model indicates that mitigation measures have in fact failed to reverse the negative consequences of displacement resulting in some cases in extreme poverty, loss of livelihoods and violation of rights (Dwivedi 2002; Mehta forthcoming; Morvaridi 2004a). Recognizing that resettlement policies can fail to protect those at risk, authors such as Cernea and the institution where he worked, the World Bank, have suggested the use of short-term social protection policies as part of risk mitigation strategies that reconstruct the livelihoods of those involuntarily resettled. Within this policy paradigm, supporters of short-term social risk management suggest that social protection could play a redistributional role to address market shortcomings (World Bank 2001). However, even though Cernea definitely recognizes the importance of human rights on paper, he has not incorporated consideration of rights into the model of displacement and resettlement (see below). The World Bank, too, shies away from the rights agenda. As James Wolfensohn, the previous World Bank president said, ‘although the Bank is already engaged in human rights work, the sense of many of the Board of Directors is that the Bank’s job is not to enforce rights, it’s a neutral institution’ (Wolfensohn 2005: 22).

The current policy paradigm: is it a framework for rights? This conception of social protection diverges from the welfare policy associated with the 1970s and the social care model adopted by countries such as Sweden, that operate as a social contract at the national level through which the state provide goods and services to citizens to meet their basic rights entitlements such as free education for children, health services and social insurance. By contrast, within the neo-liberal policy domain, ‘social protection’ instruments tend to be valued as a plank of short-term risk management.2 Protection is conceptualized within the limits of economic vulnerability and risk and in relation to income and consumption instability (Sabates-Wheeler and Waite 2003), resulting in selective public action that operates as social insurance and social assistance for the poor and vulnerable, at times of crisis. These include periods when inflation rates are high, there is significant unemployment, or when there are other extraordinary external factors such as HIV pandemics or natural disasters like the Asian tsunami. In relation to displacement, social protection is seen by and large as a short-term policy response rather than a vehicle for securing rights, with vulnerability defined in economic terms. A good example is the work of Cernea who argues for resettlement that requires both ‘compensation resources and investment resources for financing resettlers’ development. Broadly speaking, resettlement must articulate the full economic rationale and the tools for achieving the overall recovery and improvement of resettlers’ (2003: 19).

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Cernea’s focus on mitigation measures promotes a risk model for ‘involuntary resettlement’ that first analyses risk and then directs action to avoid risk or minimize negative impacts, as a two-phased process (see Cernea 1997, 2000). The displacement phase, when the intrinsic risks that cause impoverishment and the loss of livelihoods become apparent, is distinguished from the resettlement phase, when ways to eliminate or mitigate risks and negative impacts can be implemented and livelihoods of the displaced people restored above their pre-project levels. The model identifies eight risk components of displacement which could lead to impoverishment: landlessness, joblessness, homelessness, marginalization, increased morbidity, food insecurity, loss of access to common property and social disarticulation. The model stresses that impoverishment risk can be reversed through targeted strategies and policy measures that should be embedded and costed accordingly in the project cycle. This approach may appear to translate the loss of basic rights into risks in an attempt to secure livelihood restoral and protect displacees. However, the emphasis is on the ‘economics of resettlement’, and formulating strategies that use compensation and impoverishment risks and reconstruction (CIRR). Cernea reduces social relations to the economic language of ‘assets’, ‘investment’ and ‘capital’ and does not consider issues of rights, entitlements and access in a social context or the wider distribution of resources that impact on the individual’s capacity to respond to vulnerability. Basically, rights are narrowly defined in terms of full compensation for losses of resettlers and the ‘rights and social cultural aspects of well-being’ (Mehta forthcoming) are ignored. Protection is conceptualized within the limits of economic vulnerability and risk and in relation to income and consumption instability. Cernea thus seems to accept a neo-liberal approach and attempts to make the best of a bad deal. The concept of ‘involuntary resettlement’ by definition means that people have no choice, sine qua non, and they must move. Involuntary resettlement removes the freedom of individuals and communities and is usually resisted. The risk model developed assesses the conditions of displaced people but does not tackle the underlying institutional structures that keep poor people in a state of poverty and inequality. The risk model also tends to assume a homogeneous notion of community and insufficiently takes account of the idea that power relations and conflicts in societies can impact on risk reversal. Resettlement is not necessarily a harmonious process based on consensus. As Mehta points out, the model: fails to recognize how risks are borne differently by different groups, and how mitigating the risks of some could increase the vulnerability of other weaker and more marginalized groups. Moreover, some risks are difficult to capture due to their intangible and non-material nature, highlighting that such a model cannot capture the diversity of knowledge systems and perceptions of risk, loss and rights. (Mehta forthcoming: p. 7 of 44)

54 Forced Displacement

The managerialist approach tends to undermine the need for assessment of historical conditions in which social institutions are produced and therefore results in inadequate understanding of social relations and the way in which communities are formed and operate. This problem becomes very clear when we consider the case of the Ilisu Dam project, in Southeast Anatolia, Turkey, which will displace an estimated 61,000 people. It is one of twenty-two dams to be constructed along the Euphrates and Tigris river basin under the Southeast Anatolia Project (GAP). The objectives of the Ilisu Dam are to increase available electricity power in a rapidly growing country and to reduce regional inequality and specifically poverty in Southeast Anatolia. However, it is questionable whether these could be achieved while structural inequalities are not being addressed through a national development policy paradigm, which is driven by economic growth and a desire to catch up with other European nations. Twelve of the GAP dams have been completed so far, and these have displaced more than 350,000 people, the majority of whom are of Kurdish origin. The unequal distribution of assets in the Ilisu Dam area represents historical ‘political settlement’ and the domination of the institution of aga, the local term for landlords. These landlords perpetuate traditional kinship/tribal relations and control through patterns of common patrilineal descent and loyalty ties that impact on social and political relations and institutions. Tribal ties are highly influential in all spheres of life, from political behaviour to marriages and family structures. In the Ilisu area there are a number of villages where only one or relatively few families (aga) possess all cultivated land, with the ownership of families extending beyond the boundaries of one village alone. There are many complex issues around land tenure and property rights in the area that would create a significant challenge for the determination of eligibility for compensation. Property rights are a source of social tensions and conflicts between individuals and between local people and government institutions (through incidents such as forced land confiscation, rural families that have evacuated farms, family feuds over land and disputes between landlords and small property owners) and need to be considered in resettlement strategies (see also Yong, Mehta this volume). Integrating elements of social policy into resettlement risk models based on compensation, finance and mitigation may offer a remedy to some of the symptoms of inequality that impact on displacement. However, this reflects a limited understanding of social protection, which is aimed at tackling only transient poverty, and not one that would generate an effective policy to deliver rights and to reduce poverty in the long run for forced migrants. Shortterm protection measures are not geared towards providing solutions for underlying structural causes that shape inequality and conflict at the micro level (see below). In practice, many of the factors that perpetuate the poverty and exclusion of displaced people and impinge on the actualization of rights are in fact ‘external’ to individual projects and are structural in origin, such

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as lack of recognition of ethnic minorities, local social institutions, uneven patterns of land distribution, and so on. In social risk management ‘the crucial issue of how poverty is created and reproduced is lost. Namely the failure to understand that poverty does not emerge because of exclusion but because of poor people’s ‘‘differential incorporation’’ into economic and political processes’ (Bush 2004: 23). The rate of risk is likely to increase in displacement settings where there are contested issues that are of historical origin and that are already a source of conflict and economic or social tension, although Cernea’s model tends not to include conflict assessment criteria in mitigation measures and risk reversal strategies. There is also a limited recognition of the influence of local norms, institutions and practices, including ethnicity and the agency of displaced people. Prevailing risk-based policies treat displaced persons and communities as passive and unresponsive agents who are not able to exercise generative power to control their own lives. This thus reinforces their subordinate position in wider hierarchical political, economic and social power relationships (Kabeer 2000). The potential of displaced people to transform their lives and to be productive through their own agency is constrained by barriers to ‘self-reliance’ such as lack of material resources, political power, and structural constraints like poverty and an oppressive political state. As it operates, the bureaucratic system within which displacement is managed and the legislative definitions and practices that it adopts, tend to exclude local people and communities in the process of resettlement and hence deny them rights to protect their economic and social well-being. The risk-based approach tends to be based on a functionalist assumption that if certain risks are removed, poverty will be reduced and security will prevail. As we have seen in the case of the Ilisu Dam, risks tend to be structural in origin and reflect a series of rights abuses, such as lack of recognition of ethnic minorities, uneven patterns of land distribution and lack of political participation. Still, policy approaches to the management of displacement continue to promote short-term social protection measures, rather than policies that promote an understanding of the political economy of reform and set social protection within a national policy framework. Barrientos and Hulme (2005), in a critique of short-term solutions to poverty, persuasively suggest that social protection has both short-term and longterm roles to play in poverty reduction. In the long term, social protection assists people ‘to conserve and accumulate assets and to transform their socio-economic relationships so that they are not constrained from seizing opportunities by bonding or clientelism’ (2005: 9) and also provides social assistance in cases where people are dependent on others, because of age, infirmity or disability. Thus social protection is the social contract at the national level through which the state provides goods and services to citizens to meet their basic rights entitlements. In this conception, social protection refers to public intervention that provides income and consumption

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transfer, employment and education opportunities to forced migrants – who have often lost their possessions and assets with the consequential likelihood of socio-economic impoverishment – and enhances social status and access to rights. Although human rights are universal and should in principle apply to all, non-citizens, refugees, migrants, minority and indigenous groups are often denied full citizenship and not granted basic rights (see Grabska, this volume). Women may have fewer rights in both statutory and customary law, for example in relation to land ownership or inheritance. Thus an approach that is limited to citizenship will be inadequate to deliver social protection for all unless the granting of citizenship is also ‘human rights-based’. A broader vision for social protection than that incorporated into the risk policy paradigm, therefore, could be an opportunity to secure the social, economic, political and civil rights of forced migrants.

The synergy of social protection and human rights There has been relatively little discussion about how social protection could provide a framework for securing rights for forced migrants. However, there is a direct interface between the concepts of rights and social protection, the salient point being Article 25.1 of the Universal Declaration of Human Rights 1948 which states that: Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing and medical and necessary social services, and the rights to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (United Nations 1948: Article 25) These values form the basic principle of rights, that human beings are fundamentally equal. Social protection, as a means to deliver this equality, tends to be framed in relation to equal status, equal concern and equal opportunity for all. Basically the rights of displaced people tend to be articulated in four different ways. The first is through global obligations and inducements to secure rights, as framed by the UN Universal Declaration of Human Rights of 1948, the Declaration of the Right to Development, the Declaration of Millenium Development Goals, and so on, which Sen (2004) refers to as the ‘recognition route’. This non-binding route establishes fundamental human rights in the context of forced displacement (in Article 14) and suggests an ethical dimension to rights rather than a purely legislative institutionalization. The second route to articulate rights is through the legislative route and the application of ‘human rights laws’. These tend to be enacted by individual

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states and reinforced by social protection policies, or through associations such as the Convention on the Status of Refugees (1951) and its 1967 protocol, which defined refugee rights and the legal obligation of the state to protect them. For development-induced displacement or IDPs in general, there is no such protection based on legal obligation. There is need for a framework of international protection law and Universal Human Rights Conventions for border-crossing refugees because they have no state to protect them, whereas the status of the internally displaced is defined and protected by the legal frameworks of their own nation. A distinction is commonly made between refugees and the internally displaced based on legislative frameworks, masking the similarities of experience that they may share as forced migrants. Unlike the protection accorded in the aforementioned provisions for refugees, the United Nations 1998 Guiding Principles on Internal Displacement contain only recommendations (Deng and Cohen 1998) in respect of the protection of the rights and entitlements of those involuntarily displaced due to development projects or conflict situations. They place no legal obligations on states to protect IDPs, as their protection framework is that determined by the state for its own citizens (see Assal, Muggah, this volume). It is not possible in the case of IDPs for the international regime to provide ‘protection’ in the sense that this term is normally understood. The UN Charter does not permit the UN to intervene in matters that are essentially within the domestic jurisdiction of any state, other than in special circumstances in which the UN resolves to place peacekeepers or peace enforcers in a state. Thus, the protection offered to IDPs by way of the international community is limited to what might more commonly be termed humanitarian ‘assistance’, which does not constitute ‘intervention’, and this again tends to be short term. There is an inherent conflict here with the idea of global obligations and universal declarations to secure rights, as it is often the state from which IDPs flee that has the responsibility for their protection.

Human rights, displacement and development In human rights frameworks, individuals are clearly viewed as ‘rights-holders’ and states as ‘duty-bearers’. Such an approach puts at the centre of the analysis risks directly caused by the state (e.g. torture, corruption, discriminatory access to services), and the preventative, mitigating or promotional actions that can be taken, whether directly provided or enabled by the state. The legislative definitions of entitlements and rights adopted by states and the bureaucratic systems within which forced migrants are supported, tend to work against the most marginal local people, minorities and women. In most developing countries including Turkey, for example, women do not inherit

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land or have formal rights to land due to social custom. They rarely challenge the legal basis of this exclusion. Planners and project managers who carry out risk assessments tend to view women as ‘housewives’ dedicated to domestic work and childrearing. However, it is well documented that women provide the most active rural labour force in the villages, and are involved in farm labour, livestock management and gardening (see Mehta forthcoming). Often their activity takes place on common grazing land and in communal areas. It is particularly critical therefore that resettlement policies acknowledge the role that women play in household survival and reflect international guidelines that recommend that a process is included for recognizing claims of rights to land that derive from customary law and traditional usage (see OECD 1992; World Bank 1990). Many experiences of internal displacement occur in situations of armed conflict and civil war or where there is social injustice and unequal political freedoms. In the Ilisu Dam area, during a long period of conflict between the Turkish state and the ethnic Kurdish population, more than 30,000 people were killed and over 3,000 villages were vacated resulting in the displacement of more than two million people (Yavus 2001).3 Those who moved to major urban conurbations have suffered impoverishment, living in squalid conditions, with little prospect of employment in a country where neoliberal and structural adjustment policies have resulted in cuts in state public expenditure. The third context within which rights are articulated is in the relationship between the sovereign state and the individual. The most important actor in the provision of rights and social protection is the state. However, sociopolitical and economic changes in the past decade prompt us to question whether the state can be the sole agent of justice and development. The concept of the state as the ‘primary agent of justice’ referred to in the Human Rights Declaration 1948 and Article 3.1 of the Declaration of the Right to Development (1986) requires explanation: ‘States have the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development’ (UN 1986). Several studies suggest that it is no longer appropriate to attribute effective and legitimate power solely to states. This is because, increasingly, responsibility is devolved to a variety of local and non-state actors (such as NGOs and the private sector) in particular where states are weak, unjust or unwilling to act (Kuper 2005). The multiplicity of actors involved in displacement and resettlement supports the view that it is no longer clear who the agents of justice are and who has the responsibility to protect the rights of the individual, and in particular of the poorest and most vulnerable. Social justice scholars, who promote a responsibility approach to human rights for global justice, have recently argued for the need to deconstruct the Declaration of Human Rights 1948 and 1951 Convention on the grounds that it is unworkable because it is based on the state being the only agent responsible for rights. This no longer

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seems appropriate in a globalized world where a multiplicity of agents, institutions and agencies seek to provide the administration necessary to protect and nurture human rights (Held 2004; O’Neill 2001; Pogge 2002). In reconstructing the Declaration, it is argued that the state needs to be involved in partnerships with other agents such as NGOs, global institutions and the private sector to deliver rights and social protection. This suggests a move towards less government and more governance, or rather dispersed governance. A multi-agency approach through which public bodies, voluntary organizations and informal networks assist communities, households, private companies and individuals to manage and overcome risks and vulnerabilities is perhaps a necessary response to globalization. For example, in Britain networks of public, private voluntary/charitable providers are now charged with meeting the basic needs of forced migrants and provide a classic example of the complex patterns of devolved governance that characterize the dispersed state. This form of decentralization reduces state power and changes the role of the state to that of regulatory agent in the direction of market management rather than a redistributor. In this sense it is also a vehicle for promoting neo-liberal ideals, with individuals charged with increasingly taking responsibility for their own well-being as they become engaged with a host of agencies and institutions from local to supranational levels (Dwyer 2005). The involvement of a range of agencies in providing protection for forced migrants does not necessarily reflect greater commitment to their protection, but in most cases reflects attempts to contain the amount of welfare accessible to them, with the voluntary/informal sector essentially left to pick up the pieces. This also lets the state off the hook.4 In the case of resettlement associated with development projects, such as dams, the private sector tends to regard displacement and resettlement as the responsibility of the state. The private sector does not operate social programmes for poverty reduction or responsible management of resources to address wider inequalities. However, an increasing awareness of the need for the private sector to promote corporate social responsibility becomes evident when we look at the environmental, social and economic costs of resettlement in the case of the Ilisu Dam, and at private companies’ involvement in the project and their subsequent withdrawal. In 1997 the Turkish government, through the General Directorate for State Hydraulic Works (DSI), invited Sulzer Hydro of Switzerland to lead a consortium, which involved Balfour Beatty (UK and USA), Impregilo (Italy), Skanska (Sweden), ABB Power Generation, Sulzer Hydro (Switzerland and Austria) and the Turkish companies, Nurol, Kiska and Tekfen, to build the power plant at Ilisu. Contractors in the consortium approached Export Credit Agencies (ECA) in their own countries to underwrite support for their involvement in the project, as financial guarantors against the risk of nonpayment (ECA UK 1999). A social impact assessment report, sponsored by

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the Export Credit Guarantee Department, UK (1999), concluded that the Ilisu Dam project faced challenging and complex development issues such as structural poverty and gender and ethnic discrimination that could not be tackled at the project level alone. A need to address these at wider policy level was identified; otherwise risks to social and human rights would not be adequately mitigated at project level. This required political commitment to ensuring that the project was fully inclusive, allowing local people to benefit from the project in the long term. Articulating and claiming rights The Ilisu Dam project provides a good example of how different routes to articulating rights converge. The involvement of international consortia and national credit agencies allowed for conditions to be set for credit funding approval linked to rights. These include, for example, a need to address property rights and land tenure issues, provide for customary rights to land, ensure citizen rights and a participation strategy that involved all stakeholders in decision-making (Morvaridi 2002). To ensure that property rights and land tenure issues were identified, a cadastral survey was required to be carried out by the DSI, the risk managers who were responsible for the displacement and resettlement of the affected people. This required details on land ownership in anticipation of compensation, recognized inequalities in access to land by gender and established processes to mediate conflict. Due processes were required for the accurate assessment of compensation for customary land rights based on uses of pastoral land (by all groups), even though the existing constitutional law does not recognize pastoral land as a property of communities. A consultation/participation strategy was requested that ensured local people (both the displaced and host communities) could contribute to the decision-making and planning process. Perhaps most importantly of all, funding conditions insisted that social exclusion was addressed and that the rights of ethnic minorities, including social and cultural institutions and social networks, were reflected in the planning process. This is particularly important given the context of social and political conflict and human rights concerns in relation to Kurdish people in the region (ibid.). In November 2001, Balfour Beatty pulled out of the Ilisu project on the grounds that the Turkish authorities had made limited progress in relation to the above conditions including the social and environmental impacts of the project (Balfour Beatty Press Release, November 2001).5 The World Commission on Dams provides guidance on how projects such as Ilisu already in the ‘pipeline’ can produce improved outcomes and meet the Commission’s core values (see the chapters by Yong, Mehta, this volume, for further discussions on the World Commission on Dams). This requires systematic, open and participatory reviews of projects, such as Ilisu, and the political will to accommodate changes considered necessary to meet international

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best practice, including adequate resourcing. Balfour Beatty withdrew from the Ilisu consortium over concerns around the Turkish state agencies’ capacity to fulfil the ECA’s funding conditions and in a timely fashion that did not add to project costs given the bureaucratic machinery. This decision was also influenced by a very public campaign by civil society organizations that objected to the human rights issues associated with the displacement programme, in particular abuses of the Kurdish minority, and the lack of participation of affected people in the planning process. A revised version of the Ilisu Resettlement Action Plan (RAP) was prepared in July 2005 by ENCON (an environmental consultancy that has been involved in other dam projects in Turkey) for the DSI. This report includes updated data and incorporates some of the criticisms of the earlier document (see Morvaridi 2002). However, Cernea (2006) in a commentary on the RAP for the Ilisu Dam project points out some of the problems that are associated with the RAP, of which perhaps the most fundamental is that Turkish laws tend to separate expropriation and resettlement. Moreover, the compensation measures included in the RAP are not in accordance with the best international practice because they are based on the market value of displaced persons’ assets and not on their replacement value. He therefore makes a number of recommendations to the Turkish government, which in fact support the adoption of the CIRR model and include some elements of social policy,6 and a shift in focus to risk reversal. This would avoid the dualism of expropriation and resettlement and other economic reconstruction activities and income restoration measures to mitigate impoverishment. His focus is to ‘put the displaced population on sustainable feet’. This is crucial, he argues, as the success of a resettlement in a dam project is ultimately measured by ‘whether people’s income is restored and improved, or whether they end up worse off, impoverished’ (2006: 24). He maintains that this model has been applied successfully in China’s World Bank-assisted Xiaolangdi Dam and advises the planners from Turkey, the ENCON, other consultants and the ECA’s staff to visit these dams. However, Cernea ignores human rights issues and makes no single reference in his report to locality issues linked to the recognition of Kurdish ethnic identity, culture and social institutions. Neither Cernea nor the RAP acknowledges that, given the high percentage of Kurdish ethnic minorities in the region with their particular cultural and social institutions, this may impact on successful resettlement. Ethnicity is not a specific social factor associated with relative poverty in the area, but it is a factor in terms of social exclusion and the ways in which people may be denied full participation in society and full effective civil, economical, political and social rights. Kurds, for example, have struggled over time for the right to participate in civil society as Kurds, the right to speak their own language, the right to claim land that they own, the right to communal pastoral land and their right to basic citizenship. The Turkish constitutional definition of citizenship, in the

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Enlightenment tradition, does not acknowledge religion or Kurdish ethnic minority status (Heper 1991). Through its overpowering ‘one nation’ policy the government has imposed uniformity on the Kurdish people, the majority of whom live in Southeast Anatolia, through steps such as renaming Kurdish villages with Turkish names in the 1960s and banning many Kurdish cultural institutions, such as language, clothes, music and religious practices. Furthermore, Cernea and the RAP do not consider the impact of the ongoing conflict between the state and the local Kurdish population that has a direct bearing on the accurate assessment of expropriation and compensation of displaced people. This is compounded by divisive power relations in the area that reflect the structure of landholdings and result in conflicts such as forced land confiscation, family feuds over land and disputes between landlords and small property owners. Claims are not uncommon, for example, that rich landlords have unlawfully taken land from nearby villages and refuse to restore it to the rightful owners who cannot then prove ownership. Many of these issues reflect limited individual agency: high social inequality perpetuated by a skewed distribution of land and resources; traditional social institutions, some of which are gender related; problematic land tenure and property rights; and insecure proof of ownership (title deeds), all of which conspire to create exclusion and conflict. Concern over human rights violations are also directly linked to the Turkish bureaucracy’s systematic denial of the political, social and civil freedoms of the indigenous Kurdish population, which has only relaxed a little in recent years. In practice, Kurds are excluded (their ethnicity is not recognized) from full citizenship, as defined by rights to participate in decision-making in social, economic, cultural and political life. The Turkish authorities accepted that ‘key issues’ needed to be resolved regarding environmental concerns and guaranteed that they would be mitigated effectively. They rejected any debate on Kurdish problems, civil society and human rights issues on the grounds that these were national sovereignty issues. Contentious issues that have structural and political origins fall outside of the remit of development projects and demand a political commitment that, in this case, the state was clearly not willing to provide. However, key commentators such as Cernea, planners and bureaucrats continue to maintain that civil society inclusion and inequality in the Ilisu area could be addressed and resolved at the project level by way of resettlement policy and cash compensation. Could it be that it is within the wider national strategy and policy framework that a rights-based approach to development would need to act as a driver for change, rather than as a function of a displacement programme? Is the challenge not how to integrate rights into impact assessments or risk models, but rather how to ensure that the rights agenda is a driver for development policy and its macro/micro interface? In many developing countries, development policy continues to be driven by national goals of economic

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growth for the greater good of society. Within such a macro-driven approach it is not usual to link policies that have national objectives with a rights agenda geared towards the individual that reflects the micro context. If we take the example of common property, such as pastoral land used for grazing livestock by local farmers in dam area, we find that this is not addressed in the Turkish national legal framework or constitution. Therefore income dependent on access to this land is not included in compensation evaluation and it remains external to project impact assessment. Despite the fact that pastoral land is a critical source of income for many households, and the dam’s reservoir basin will remove key areas used for summer grazing, this common law right is completely ignored in resettlement compensation planning because resettlement is not geared to delivering a rights agenda. Civil society, rights and displacement This brings us to the fourth route through which the rights of the displaced are articulated – the advocacy or ‘agitation route’, the involvement of individuals and groups and civil society organizations calling for the protection of the rights of forced migrants. Over the past three decades an increasing number and diversity of transnational organizations, including local and international NGOs, have framed protest within a rights context. Transnational networks that have a human rights basis typify much of the growing opposition to displacement, representing new sources of agency as activists who struggle for inclusive social and economic rights. Forced migrants have been actively involved in demanding entitlements and rights for social protection (see Morvaridi 2004b; Harrell-Bond, this volume). This is typified by the protest of transnational networks that comprise activists with environmental, ecological, feminist and human rights-based objectives. These new sources of agency challenge the state, private sector and development actors to operate within an institutional environment that creates inclusive opportunities empowering all displaced people, including the poor and the marginalized, to shape and mediate their entitlements and social, economic, cultural and political rights. In so doing they in fact challenge the wider national and regional development policy context and in particular governments’ policies towards civil society. The protest movement is typically a weapon of the weak and marginal who are excluded from mainstream civil society, but who seek to challenge, change or influence public policies and international protection regimes (see Grabska, Mehta, and Harrell-Bond, this volume, for a discussion of protests as a mobilization strategy to claim rights and seek justice). In short, protest is a strategy employed by those who are relatively powerless within the existing social and political structure to secure their own protection and social and economic rights. Effectively, forced migrants have been actively involved in demanding entitlements and rights for social protection. A number of large dam projects in India, China and Brazil have been subjected to challenge by

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civil society organizations for the rights of resettled people. The Ilisu Dam project has been faced with considerable resistance from local and transnational lobby groups who have adopted a rights framework as a basis for claiming social justice. Where local protest actions are largely ignored by state institutions or actively contained or suppressed, leaving local movements politically weak, it is increasingly common for alternative communicative structures and international networks to provide the fora through which their concerns can be presented. The key contentious issues that formed the focus of the transnational campaign networks against the Ilisu Dam fit broadly into two groups: human rights concerns around resettlement and in particular impacts on the Kurdish population, and negative environmental impacts of the dam (river pollution, spread of disease, and violation of the UN Convention on the Non-Navigational Uses of Transboundary Watercourses). Local concerns over the politics of identity, place and displacement feed into the wider Kurdish ethnic question, and the social networks of the established Kurdish diaspora and Kurdish human rights movements based in Europe have provided a transnational network through which local protests could scale up their actions. In doing so they challenged the limits of national boundaries and local restrictions. The priority of Kurdish organizations is the protection of human rights and the rights of all to development within the Kurdish regions. More generic concerns over displacement and environmental issues are global issues that many international NGOs and individuals express commitment to challenge. A network of campaigners and NGOs (such as Friends of the Earth and Amnesty International) lobbied against the dam, citing contentions around human rights, and social and environmental problems, in order to secure local people’s rights to development.

Political will: the key to rights and social protection The extent to which different routes to articulating rights are effective depends, in reality, on the interpretation that states place on rights and the extent of the political will to provide protection. The use of social protection as a short-term targeted interventionist policy to address crises or market failings reflects the domination of neo-liberal policy. Neo-liberal market policies encourage states to restructure the economy towards a reduction in state intervention. Each new economic measure effectively results in a cut-back in public expenditure, reducing the state’s capacity to coordinate national economic and social protection programmes. Used in the context of development programmes, we find that social protection suggests a rather broad long-term framework for covering a wide range of programmes and instruments in preference to alternative short-term systems such as social security, social insurance or safety nets (Sabates-Wheeler and Waite 2003). Within this context we find displacement policy frameworks that fail to protect the rights of the internally displaced, because they are viewed as ‘problems, victims

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and recipients of charity’ (Mehta and Gupte 2003: 3) that require short-term responses, rather than individuals or groups with rights and entitlements. This is particularly the case when social protection instruments that are provided (e.g. targeted cash transfers or social funds, compensation) are based on charity, rather than social justice and equal rights and entitlements. Social protection can, however, work to protect the displaced where states are committed to providing the necessary grounds to take public action ‘in response to levels of vulnerability, risk, and deprivation which are deemed socially unacceptable within a given polity or society’ (Conway et al. 2000: 3). In both developed and developing countries, a wide range of stakeholders, programmes and instruments are engaged in the provision of social protection through both formal policies (social insurance programmes, health and education) and informal means (social networks and intra-household support). Dispersal of responsibility via agencies and organizations under the rubric of governance allows for a free market approach to welfare reform to be considered as ‘good’ governance rather than retrenchment (Hewitt de Alc´antara, 1998). Thus it complements neo-liberal economic programmes that make it difficult for governments to expand their intervention or economically to support welfare measures while having to comply with adjustments or conditional lending. Clarke (2004: 37) argues, however, that the concept of the ‘dispersed state’ induces fragmentation in service provision, multiplying the number of agents and agencies involved, increasing the number of (micro) decision-making settings and generating new problems of coordination, regulation and scrutiny. A further problem with a multiagency approach is that where weak or fragile states lack the capabilities to be the primary agents of justice, there are rarely other local agents or agencies that have the ‘missing capabilities’. More importantly, the delivery of rights is dependent on the political will to enforce them. A critical element of social protection is that public policy expands or enhances the individual’s agency as constructed by their social position ‘in relation to wider forms of stratification and social relations of power’ (Lister 2004: 126). Within the policy paradigm, there is therefore a challenge to states to address structural factors that cause exclusion and poverty and restrict the individual’s agency to actively shape and contribute to her own life and economic development (Sen 1999). Delivery of social protection is complex but what we are seeing is a more distinctive social protection agenda articulated through a wide range of stakeholders. That social protection is considered to have the potential to be a more enduring interventionist policy to address poverty and secure rights is for this reason differentiated from earlier work (Barrientos and Hulme 2005; Conway et al. 2000; Hall and Midgley 2004).

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In both developed and developing countries, host communities are often resistant to the full integration of displacees. One of the strongest opposing arguments to social protection for forced migrants is that as a form of income distribution, social protection unfairly redistributes wealth and opportunities (jobs, housing, benefits) from the active working population to those who are unemployed or poor. In the absence of social protection policies in developing countries, providing jobs or land to people just because they have been displaced is problematic for host societies that are also likely to experience high unemployment, poor health infrastructure and poverty (the next chapter by Grabska addresses these issues by drawing on the case of Sudanese refugees in Cairo). There also appears to be political incompatibility between the activities of the large development donor agencies, committed to conditionality and expenditure-reducing development policy, and commitment to a framework of social protection that is long-term and costly. It is within this context that the concept of social protection for forced migrants is highly contentious and is much discussed within the policy discourse (Castles 2003; Chimni 2000; Crisp 1999; Fortin 2001; Gibney 2003; Harrell-Bond 1986; Mehta and Gupte 2003). This brings us back to the fundamental issue that failure to implement social protection and rights-based development is not always simply due to a lack of financial and administrative capacity; as Hickey points out, ‘it is the lack of a political contract for social protection between states and citizens around issues of social protection that constitutes arguably the largest barrier’ (2005: 25). Many of the injustices encountered by forced migrants suggest that there is an institutional denial of their basic rights, but does it necessarily follow that a social protection framework would deliver rights and contribute to rights-based development? As Harrell-Bond suggests, ‘it’s simply not this straightforward, for who is actually responsible for upholding rights?’ (2000: 76). While Northern states have the capacity to offer social protection measures to deliver rights (even if they choose not to), developing countries tend to be less well placed. Poverty Reduction Strategy Papers (PRSPs) aimed at achieving social protection for the vulnerable and the poor in over seventy developing countries have not addressed the problems faced by those involuntarily displaced (Marcus and Wilkinson 2004). The main focus and priority of PRSPs is income poverty, while other deprivation concerns linked to forced migrants (gender inequality, rights, nutrition etc.) are ignored or treated as secondary (Conway et al. 2000: 26). In a similar vein, the Millennium Declaration makes only one reference in passing to forced migrants as vulnerable populations, requesting that states ‘strengthen international cooperation, to help all displaced persons to return voluntarily to their homes, in safety and dignity, and to be smoothly reintegrated into their societies’ (UN 2000). To summarize, there are many conceptions and definitions of social protection, reflecting that its precise meaning remains contested. Cernea and the

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World Bank have been promoting the idea of social protection as a framework for social risk management. Others believe that social protection is the umbrella for public action taken in response to levels of vulnerability, risk and deprivation which are deemed socially unacceptable within a given polity or society (Conway et al. 2000). In this chapter, I have taken a ‘transformative rights-based’ approach to social protection that extends its understanding to cover the delivery of social, economic and cultural rights. This requires public policy interventions to support the freedoms of displaced persons in the realms of education, employment, health and so on, as well as to address the structural inequalities that allow displacement to take place and marginalize vulnerable groups.

Conclusion This chapter has set out with the premise that good research should inform policy to the betterment of displaced persons. The challenge is arriving at a conceptual and policy paradigm that has the potential to increase the agency of the uprooted. Social protection offers a conceptual and policy paradigm that has the potential to increase the agency of displaced people, rather than reproduce the constraints upon them, and to blur the dualism between relief and development, thus departing from short-term protection measures. In the context of economic globalization, we need to factor in the engagement of a diversity of agents in programmes that protect forced migrants’ rights. This suggests the need to reconfigure where the delivery of rights rests. Economic globalization has resulted in a multiplicity of actors and agents providing administration to protect rights and achieve development, and a multiplicity of institutions with overlapping legal competencies (Held 2004). However, despite institutions of global governance and international pressures for social justice, rights declarations continue to be articulated through the state and national legal systems. Therefore, it is the local political context that influences the delivery of rights and social protection for forced migrants, as all other contributors to this volume show in their specific case studies of forced displacement situations. A social protection framework helps in the delivery of rights by placing upon the state the responsibility for enhancing the individual’s agency to actively shape his or her own life. This challenges structural factors that cause exclusion and rights abuses. Consideration of how social policy connects state and civil society leads us away from individualized, pathological understandings of forced migration and urges us to look upstream at the wider structures and events that cause forced migration and confine the individuals affected to the margins of societies. This is not reflected in current policy approaches to the management of displacement, which focus on short-term risk management as part of individual projects, rather than an approach that promotes an understanding of the political economy of reform and strengthens social protection

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within the policy framework. That many of the contentions associated with forced displacement are structural or political in origin should drive us to consider a rights-based approach within the wider national strategy and policy framework. However, the political context is likely to have the most significant bearing on the implementation, success and sustainability of social protection and issues of development more broadly. Notes 1. I use forced migration in this chapter to refer to refugees and asylum seekers, internally displaced persons (IDPs) or conflict induced displacement and development-induced displacement linked to mega projects such as dams, roads etc. The focus of this chapter is development-induced displacement (DID). 2. For different conceptions of social protection see Conway et al. (2000). 3. As a consequence of violent and armed confrontation between the Kurdish Workers Party (PKK) and the state, most of the region has been under Regional State of Emergency Governance (OHAL) since 1980 and as such is not governed by the Constitutional Court but is subject to a stricter legal and administrative rule. Since the arrest of its leader in 1999, the PKK has changed its political demand for an independent Kurdish state to issues of Kurdish identity, political participation and human rights. Despite this, much of the area remains under emergency rule. 4. For the role of NGOs in providing welfare for forced migrants in Egypt, see Grabska and Ainsworth, this volume. 5. The transnational network, civil society groups and associations claimed a victory, which according to Friends of the Earth in a press communiqu´e was: ‘a tremendous win for campaigners against a disastrous dam project. Balfour Beatty’s very welcome decision to drop out of the project shows the power of shareholder pressure and publicity campaigns by groups like Friends of the Earth and the Ilisu Dam Campaign’ (Friends of the Earth Press Release, November 2001 http://www.foe.co.uk/resource/press releases/20010314110011.html). 6. The Turkish resettlement programme offers three options based on expropriation and compensation: self-resettlement, in which people independently resettle following receipt of monetary compensation depending on the value of their house, land and other resources; government-assisted resettlement – a package that includes new housing and land in an urban or rural designated receiving area (financed through expropriation compensation and loans as necessary) and assistance in restoring the pre-resettlement income (average household resettlement cost and compensation); and government credit-assisted resettlement – a package that allows people to keep their expropriation compensation and also have access to a mortgage loan (Morvaridi 1999).

References Barrientos, A. and D. Hulme 2005, ‘Can Social Protection Tackle Chronic Poverty?’ European Journal of Development Research 17(1): 1–17. Bush, R. 2004, ‘Poverty and Neo-liberal Bias in the Middle East and North Africa’, Development and Change 34(4): 673–741. Castles, S. 2003, ‘Towards a Sociology of Forced Migration Social Transformation’, Sociology 37(1): 13–34.

Rights and Development-Induced Displacement 69 Cernea, M. 1997, ‘The Risks and Reconstruction Model for Resettling Displaced Populations’, World Development 25(10): 1569–87. Cernea, M. 2000, ‘Risks, Safeguards and Reconstruction: a Model for Population Displacement and Resettlement’, in M. Cernea and C. McDowell (eds), Risks and Reconstruction: Experiences of Resettlers and Refugees, Washington, DC: World Bank. Cernea, M. 2003, ‘For a New Economics of Resettlement: a Sociological Critique of the Compensation Principle’, paper presented at Cornell University. Cernea, M. 2006, ‘Comments on the Resettlment Action Plan for the Ilisu Dam and HEPP Project’, prepared for the Berne Declaration, Switzerland, February. Chimni, S. B. 2000, ‘Globalisation, Humanitarianism and the Erosion of Refugee Protection’, Oxford Refugee Studies Centre, Working Paper No. 3. Clarke, J. 2004, ‘Dissolving the Public Realm? The Logics and Limits of Neo-liberalism’, Journal of Social Policy 33(1): 27–48. Colson, E. 2003, ‘Forced Migration and the Anthropological Response’, Journal of Refugee Studies 16(1): 1–18. Conway, T., A. de Hann and A. Norton (eds) 2000, Social Protection: New Directions of Donor Agencies, Social Development Department, London: DFID. Crisp, J. 1999, ‘A State of Insecurity: the Political Economy of Violence in Refugee- Populated Areas of Kenya’, New Issues in Refugee Research, No. 16, Geneva: Evaluation and Policy Analysis Unit, UNHCR. Deng, M. F. and R. Cohen 1998, Masses in Flights: the Global Crisis of Internal Displacement, New York: Brookings Institution Press. Dwivedi, R. 2002, ‘Models and Methods in Development-induced Displacement’ (review article), Development and Change 33(4): 709–32. Dwyer, P. 2005, Governance, Forced Migration and Welfare, Swindon: ESRC. European Council on Refugees and Exiles 2004, ‘Broken Promises – Forgotten Principles: an Evaluation of the Development of EU Minimum Standards for Refugee Protection’, Brussels: EU. Export Credits Guarantee Department 1999, ‘Stakeholders’ Attitudes to Involuntary Resettlement in the Context of the Ilisu Dam Project Turkey’, London: Export Credits Guarantee Department. Fortin, A. 2001, ‘The Meaning of ‘‘Protection’’ in the Refugee Definition’, International Journal of Refugee Law 12(4): 548–76. Gibney, J. M. 2003, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees, Cambridge: Cambridge University Press. Hall, A. and J. Midgley 2004, Social Policy for Development, London: Sage Publications. Harrell-Bond, B. 1986, Imposing Aid: Emergency Assistance to Refugees, Oxford: Oxford University Press. Harrell-Bond, B. 2000, ‘Are Refugee Camps Good for Children?’ Cairo Centre for Refugee Studies, New Issues in Refugee Research, Working Paper No. 29, Forced Migration and Refugee Studies, The American University in Cairo. Held, D. 2004, Global Covenant: the Social Democratic Alternative to the Washington Consensus, Cambridge: Polity Press. Heper, M. (ed.) 1991, Strong State and Economic Interest Groups: the Post-1990 Turkish Experience, New York: Walter de Gruyter. Hewitt de Alc´antara, C. 1998, ‘Uses and Abuses of the Concept of Governance’, International Social Science Journal 50(1): 105–13. Hickey, S. 2005, ‘The Politics of Staying Poor: Exploring the Political Space for Poverty Reduction in Uganda’, World Development 33(6): 1347–75.

70 Forced Displacement Kabeer, N. 2000, ‘Resources, Agency, Achievement’, in S. Razavi (ed.), Gendered Poverty and Wellbeing, Oxford: Blackwell. Kuper, A. 2005, Global Responsibilities: Who Must Deliver on Human Rights? New York: Routledge. Lister, R. 2004, Poverty, London: Polity Press. Marcus, R. and J. Wilkinson 2004, ‘Whose Poverty Matters? Vulnerability, Social Protection and PRSPs’, Childhood Poverty Research and Policy Centre, Save the Children Fund. Mehta, L. forthcoming, ‘The Double Bind: a Gender Analysis of Forced Displacement and Resettlement’, in L. Mehta (ed.) forthcoming, Displaced by Development: Confronting Marginalisation and Gender Injustice, New Delhi: Sage. Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-Based Approaches in Forced Migration’, DRC Working Paper. Morvaridi, B. 1999, ‘Stakeholder Perception of Involuntary Displacement’, London: ECGD. Morvaridi, B. 2002, ‘Social Review of Resettlement Action Plan for Ilisu Dam’, London: ECGD. Morvaridi, B. 2004a, ‘Resettlement, Rights of Development and the Ilisu Dam, Turkey’, Development and Change 35(4): 719–41. Morvaridi, B. 2004b, ‘Contentious Development Issues, Displacement and Transnational Networks’, in G. Harrison (ed.), Global Encounters: International Political Economy, Development and Globalisation, Basingstoke: Palgrave Macmillan. OECD 1992, ‘Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects’, Paris: OECD. Oliver-Smith, A. 1991, ‘Involuntary Resettlement, Resistance and Political Empowerment’, Journal of Refugee Studies 4(2): 132–49. O’Neill, O. 2001, ‘Agents of Justice’, Metaphilosophy 32(1): 1–30. Pogge, T. 2002, World Poverty and Human Rights, Cambridge: Polity Press. Pogge, T. 2005, ‘Human Rights and Human Responsibilities’, in A. Kuper (ed.), Global Responsibilities: Who Must Deliver on Human Rights? London: Routledge. Sabates-Wheeler, R. and M. Waite 2003, ‘Migration and Social Protection: a Conceptual Paper’, Sussex: Institute of Development Studies, December. Sen, A. 1999, Development as Freedom, Oxford: Oxford University Press. Sen, A. 2004, ‘Elements of a Theory of Human Rights’, Philosophy and Public Affairs 32(4): 315. United Nations 1948, ‘Universal Decalaration of Human Rights’, GA Res. 217 A. United Nations 1986, ‘Declaration on the Right to Development’, GA Res. 41/128, annex, 41, UN GAOR Supp. (No. 53) at 186, UN Doc. A/41/53. United Nations 2000, Millennium Development Goals, available at www.un.org/ millennium/declaration/areas552 Wolfensohn, D. J. 2005, ‘Some Reflections on Human Rights and Development’, in P. Alston and M. Robinson (eds), Human Rights and Development: Towards Mutual Reinforcement, Oxford: Oxford University Press. World Bank 1990, ‘Involuntary Resettlement, Operational Directive No. 4.30’ and ‘Revised Operation Directive 4.12 on Involuntary Resettlement Procedures’, World Bank: Washington, DC. World Bank 2001, ‘Social Protection Strategy: From Safety Net to Spring Board’, Sector Strategy Paper, Washington, DC: World Bank. Yavus, H. M. 2001, ‘Five Stages of the Construction of Kurdish Nationalism in Turkey’, Nationalism & Ethnic Politics 7(3): 1–24.

4 Brothers or Poor Cousins? Rights, Policies and the Well-being of Refugees in Egypt Katarzyna Grabska

Introduction On 30 December 2005, the situation of refugees in Egypt came to the world’s attention. A three month-long sit-in organized by Sudanese refugees and asylum seekers in front of the United Nations High Commissioner for Refugees (UNHCR) office, located in one of the affluent neighbourhoods of Cairo, Mohandeseen, was brutally crushed by the Egyptian security forces. Twentyeight people died, many were injured, and hundreds were detained and threatened with deportation to Sudan (FMRS 2006). The issue of rights was an underlying motivation for the organizers: ‘Unite and demand for your rights in order not to be abused again’ read the manifesto prepared by the sit-in participants. Some of the banners hung on the fences called for the release of missing refugees in Egypt. Other slogans included: ‘Attention please: Who will restore our rights?’ This event represented a contestation of policies towards refugees, the failure of the international and national protection system for forced migrants, and the tensions around rights and access to rights. The protest demonstrated three core issues: a search for meaningful protection on the part of refugees; their willingness and ability to mobilize around rights; and the hegemonic powers of the state in determining and extending the rights, privileges and protection required by non-citizens. The arguments put forward in this chapter directly link to the previous discussions of the refugee protection regime and the concept of social protection for the displaced presented earlier in this volume by Robert Muggah and Behrooz Morvaridi respectively. The chapter specifically addresses issues of rights and conceptualizations of rights by the host government, organizations providing protection and assistance to refugees and refugees themselves. It questions the adequacy of current top-down approaches in forced migration policies which often result in refugees’ further impoverishment and disenfranchisement. It explores refugees’ perceptions of these 71

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policies as well as their own strategies to realize rights and gain access to services while faced with restricted legal and economic possibilities in Egypt. In the context of the current discussions of rights-based approaches to policies and programming addressing refugees, the chapter asks to what extent such an approach is feasible in a county like Egypt with a struggling economy and a poor record of human rights protection for its own citizens. The livelihoods of both the citizens and refugees are directly connected to their ability to enjoy and access rights. Hence the creation of a two-tier system (by providing refugees with services often not available to nationals and promoting refugee access to rights without addressing citizens’ rights) poses a danger of singling out refugees and setting them further apart from the local community. The question of responsibility for the provision of rights to refugees is the underlying theme of the chapter.1 By maintaining a split system of responsibility and accountability for refugee protection between national (the government) and international bodies (the UNHCR and NGOs), the locus of accountability for fulfilling their rights is lost, and refugees are treated as a special group with transitory status different from citizens.2 Consequently, the rights of refugees continue to be ignored and bypassed.

Rights and refugees, citizenship, and rights-based approaches To avoid the narrow legal categorization of refugees, which often leaves out many who do not fit the strict definitions provided in the 1951 UN Refugee Convention and the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, for the purpose of our discussion, I will use the term ‘refugees’ to describe all those who have applied for refugee status in Egypt and who cannot or are not willing to go back to their countries of origin. Where appropriate, the distinction between those seeking asylum and those who have been granted an official status will be made to demonstrate how rights, labels and categories are intertwined. The issue of legality determines access to rights and enjoyment of services offered to refugees and it will be tackled subsequently. The discussion of economic and social rights is set in the context of access to citizenship rights in Egypt. I borrow the term ‘citizenship’ from Naila Kabeer who defines it as representing ‘rules which spell out the claims and obligations of membership in a given community/society and ensure redistribution as a matter of right rather then discretion’ (2005: 25). In Egypt, citizenship, as will be seen in the discussion, is only accessible to those of Egyptian fathers and, as such, is unattainable for refugees. Hence, Kabeer’s interpretation of citizenship (as a more inclusive term, encompassing rights and obligations for those who experience exclusion) is juxtaposed against the narrow criteria used officially in Egypt. In this view, citizenship encompasses ideas of adherence to some notion of justice, where justice is conceptualized

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around circumstances when it is fair for people to be treated the same and when it is fair that they should be treated differently (Kabeer 2005: 3). It thus includes not only a demand for recognition of personhood, but also of difference. In the case of refugees, difference refers to their status as non-citizens in the country yet according to international law entitled to the enjoyment of certain rights and privileges on equal footing with nationals. The notion of what Hannah Arendt (1986) refers to as ‘the right to have rights’ is particularly important in the context of refugees, as a group suffering from certain legal forms of exclusion. While referring to rights- versus needs-based approaches in the programming and policies affecting refugees in Egypt, the emphasis will be on establishing a society that is based on a principle of social justice. This is opposed to treating beneficiaries as recipients of charity based on the willingness of others to provide assistance, rather than the right of beneficiaries to receive it. As rooted in international human rights law, the rights-based approach points to accountability and justiciability. It has often been argued in the refugee rights literature (see Hathaway 2005) that some rights for refugees are immediate (the non-refoulement principle, for example) whereas others come progressively (economic rights). However, daily experiences of refugees show that divorcing one physical protection (the non-refoulement principle) from wider social protection undermines the effectiveness of protection in general. Nyamu-Musembi (2005: 43) defines a rights-based approach as ‘an integrated view of sustenance (economic and social rights) and freedom (civil and political rights)’ whereby each one is necessary for the realization of the other. Instead of a hierarchy of rights (civil and political taking precedence over social, economic and cultural rights) these two sets of rights are indivisible and constitute a continuum where they are interdependent and indivisible. Before I turn to the discussion of the interpretation of rights of refugees in Egypt, I will briefly present the research background for this chapter.

Methods and researcher This chapter is based on fieldwork carried out by myself and Sarah Sadek at The American University in Cairo, under the Forced Migration and Refugee Studies programme.3 Some forty-five qualitative interviews based on a semi-structured framework were conducted with government officials, international and national organizations representatives, donors, refugee advocates and refugees themselves. In addition, focus group discussions with refugees, participation in events and visits to the Cairo demonstration served as primary methods in data gathering. The theoretical framework was developed using the rights-based approach to the study of policies affecting forced migrants. By considering refugee rights as a departure point for the creation of policies, the possibility of reforming the existing top-down policy

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frameworks with bottom-up perspectives was examined. These wider policy frameworks affecting forced migrants were considered in the context of the macro-economic, political and social situation of Egypt. The fieldwork took place between December 2004 and May 2005 in Cairo. In order for refugees to have a direct input into the research, they were considered the primary stakeholders. Refugees’ perspectives on their situation and their rights were an important element in assessing the policy frameworks affecting forced migrants. Hence, before starting fieldwork, researchers met with several refugees and refugee groups to seek their views on the issues and questions to be considered during the research, and developed semistructured interviews as a basis for data collection. Additionally, refugee communities were consulted in order to get an over-arching view of the refugee situation in Egypt. Researchers also attended one of the demonstrations organized by Sudanese refugees in front of the UNHCR office in Cairo, who raised a number of concerns regarding their status in Egypt. My knowledge about the refugee situation and policies comes from several years of carrying out research among the urban and camp-based refugee populations as well as from my previous work experiences with NGOs and UN agencies in Southeast Asia, the Middle East and Africa. In particular, between 2002 and 2006, I worked as a researcher and programme coordinator at the Forced Migration and Refugee Studies at The American University in Cairo and was involved in several research projects examining livelihoods, rights and policies affecting refugees in Egypt and the region (Grabska 2005, 2006). Through participating in several refugee group organizations as well as contributing to the development of a refugee artists’ network in Cairo, I gained a range of perspectives into refugee lives, dilemmas, daily choices and struggles.

Egypt: refugees and policies Refugees in Egypt Throughout history, Cairo has enjoyed the status of a cosmopolitan city, attracting diverse populations from across the globe. Egypt has hosted refugees including Armenians who fled the 1915 massacre under the Ottomans, Palestinians after 1948, and Sudanese after 1983. A new influx of refugees started arriving in Egypt in the 1990s as a result of wars in the Horn of Africa, especially in Sudan, Ethiopia, Eritrea and Somalia. Most of them settled in Cairo. Since the late 1990s, the UNHCR Cairo office has seen a significant increase in the number of asylum seekers. Within only one year, between 1998 and 1999, the number of asylum seekers doubled (Kagan 2002; UNHCR RO-Cairo 2004).4 At the end of 2004, there were over 21,000 officially recognized refugees present in Egypt coming from thirty-two countries; 75 per cent were Sudanese, 16 per cent Somalis and smaller number were Ethiopians, Eritreans, Sierra Leoneans and refugees from the Great Lakes region (UNHCR

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RO-Cairo 2004).5 Overall, there are between 120,000 and 150,000 people who consider themselves refugees residing in the country.6 From June 2004, the UNHCR stopped hearing refugee claims from Sudanese, instead issuing them with ‘yellow cards’, indicating that they are asylum seekers under its protection (see Harrell-Bond, this volume). In addition to proximity, Egypt is seen by people seeking refuge as one of the few stable countries in the region. Moreover, Egypt has one of the largest refugee resettlement programmes in the world. The main countries receiving refugees from Egypt are Canada, Australia, the USA and Finland.7 However, only a small minority of refugees actually get resettled. Those whose claims for refugee status have been denied and who are unable to return home because they fear persecution live on the margins of society, struggling to secure their livelihoods as illegal ‘aliens’ (see Grabska 2005). As there are no camps on Egyptian soil, refugees are scattered around the cities, mainly in Cairo and Alexandria, with some residing in Sinai or around Aswan. They share the same living conditions with poor Egyptians, finding accommodation in poorer neighborhoods in Cairo (Al Sharmani 2003, 2004; Grabska 2005; Sperl 2001; and Ainsworth, this volume). Policies on refugees in Egypt Egyptian policy and approach towards refugees can be characterized as threefold in nature. First, although admitted into Egypt, refugees are generally treated as any other foreigner in terms of access to rights. The government, as well as international and national organizations, perceives refugees as ‘temporary guests’ in search of a permanent solution outside the borders of Egypt. Hence, integration and access to citizenship is ruled out. Second, due to political sensitivities around the Palestinian question in the region (see below and Suleiman, this volume), refugees in Egypt are allowed to settle anywhere, with most heading for urban areas. Third, although signatory to the refugee conventions, the Egyptian government, as is the case in some of the other developing countries (see Kibreab and Trad and Kagan in this volume), has delegated responsibility for protection and assistance of refugees to the UNHCR. Hence, refugees perceive the UNHCR as the guarantor of their rights and assistance. The government’s perspective on refugees and rights Government’s commitments to the refugee regime As a founding signatory to both the 1951 Convention and its 1967 Protocol in addition to the 1969 Organization of African Unity (OAU) Convention, Egypt has undertaken international obligations with regards to providing asylum, protection and guaranteeing rights for refugees on its territory.8 However, with the lack of implementing legislation and with the number of reservations entered to the 1951 Convention, the rights of refugees and asylum

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seekers are significantly constrained. The five reservations made to the Convention concern personal status (Article 12 (1)), rationing (Article 20), access to primary education (Article 22 (1)), access to public relief and assistance (Article 22), and labour legislation and social security (Article 24). As a result, refugee children are restricted in their rights to state-funded education, and the right to work is regulated by Egypt’s domestic legislation concerning the employment of foreigners, in law no. 137 of 1981, whereby refugees are required to obtain a work permit like any other foreigner. The Egyptian constitution gives the right of asylum to political refugees,9 yet only a few of high political calibre have benefited from this provision in the past, including the Shah of Iran, Jaafar Nimeri of Sudan, and the wife of the last king of Libya (Zohry and Harrell-Bond 2003: 50). Although not confirmed in any official law, those granted political asylum by the Presidential Office enjoy rights equal to nationals and might qualify for Egyptian passports.10 The ambiguous government attitude towards creating a comprehensive refugee policy derives from political sensitivities over the nature of refugees in the region. The biggest groups of refugees come from Palestine and Sudan, both members of the Arab League. One of the main reasons behind the reluctance of Arab states to adopt a regional refugee regime is the highly politicized issue of the Palestinians. In fact, there is a general denial among many policymakers in Egypt that refugees coming from Arab countries might face any problems in Egypt. This is clear from an interview with Mahmoud Rachad, the Director of the Human Rights Department of the Arab League, who emphasized: ‘We believe in the Arab world that our tradition, culture, we ourselves are tolerant and the Arab societies are very generous.’11 It is often argued that as the majority of refugees in Arab countries are Palestinians, and ‘in our countries, we consider any Arab as a brother’, that ‘Palestinians cannot be considered as refugees in Arab states.’12 Similar responses are given for Somali and Sudanese refugees.13 By granting a refugee status to Sudanese, the Egyptian government would be directly criticizing atrocities committed in Sudan, which for Egypt politically would be difficult to do. Both Sudan and Egypt are members of the League of Arab States and in addition, Egypt has economic interests in Sudan linked to the control over the River Nile. In terms of access to rights and the possibility of local integration, the room to manoeuvre is very tight. This attitude towards refugees in Egypt is summarized in the words of the representative from the Ministry of Foreign Affairs: We welcome refugees, especially those from Sudan, who are treated here like brothers, due to a special link between Sudan and Egypt . . . Refugees are not fully integrated in Egypt in a sense of naturalization. Egypt does not provide for naturalization (meaning integration) of refugees. However, Egypt opens its doors and borders to them.14

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Clearly, such a stance only obfuscates the grim on-the-ground situation of refugees in Egypt. Whether Somali, Sudanese or Palestinian, that refugees are seen as brothers or rather poor cousins is debatable. Integration in the form of naturalization and access to citizenship15 are not possible for refugees in Egypt since nationality is granted on the basis of ius sanguinis (citizenship on the basis of natural parentage). Even children born to Egyptian mothers and foreign fathers have no right to Egyptian citizenship.16 This affects the registration of children born to refugees without legal status and whose parents, due to fear of persecution, are unable to approach their embassies, thus rendering them ‘non-existing’. As such, the possibility of full integration in terms of access to citizenship, civil, political, social, economic and cultural rights in Egypt for refugees is effectively ruled out. In fact, refugees’ presence in Egypt is perceived by the government and national institutions as temporary until a more permanent solution can be found for them in the form of resettlement to the third country or repatriation to their country of origin.

Rights to education, to work, and to health care The type of rights refugees enjoy in Egypt is closely intertwined with their official status in the country and often also with their nationality. Those who have been granted refugee status enjoy access to some rights on an equal footing with citizens (such as freedom of movement, residence and, in theory, access to justice); others who are either in the process of applying for asylum or whose claims have been rejected have limited, if any, access to rights (as is also the case for refugees in Lebanon as discussed by Trad and Kagan in this volume). Those who do not have any legal status in the country are in the most difficult situation. According to Egyptian government officials from the Ministries of Foreign Affairs (MOFA), Health, Labour and Manpower, and the National Council of Childhood and Motherhood (NCCM) interviewed during our fieldwork, refugees should not have access to the same rights as those guaranteed to citizens. In the eyes of Egyptian government officials, Egypt, as a country with a struggling economy, high unemployment rates, lack of educational places for Egyptian children and lack of basic social services for its own nationals, cannot afford to divert its resources towards foreigners. In the words of Ambassador Mushira Khattab of the NCCM, although all children in Egypt have the right to education, these rights are not universal,17 but are linked to local conditions and the socio-economic situation of the host country. The rights of refugees are thus linked to the level of development of the host country. However, linking provision of rights to the availability of resources sets a dangerous precedent, in which countries could be absolved of their responsibility to adhere to international conventions which they have signed. This logic could also be used to further constrain the enjoyment of rights by those unable to access full protection in their own countries. As is the case in Egypt,

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such a policy of exclusion leads to greater marginalization of certain groups and deeper social divisions between citizens and non-citizens. These effects are clear in Egypt with regards to those rights which are directly interlinked with the ability of refugees to secure their livelihoods. This underscores the importance of the rights to education, work and health services for refugees, to which I now turn. Right to education. Although the Egyptian government placed a reservation18 on the right of refugee children to public education, some argue that this right should be seen in the context of Egypt’s broader obligations under the universal human rights system. As a signatory to the Convention on the Rights of the Child, Egypt is obliged to provide access to public education for all children residing on its territory (see FMRS 2005). Over the years, there have been one or two ministerial decrees and decisions which have provided for exceptions for certain refugee groups. In 1992, the Minister of Education issued Decree No. 24 allowing Sudanese children, inter alia, to attend Egyptian public schools.19 This Decree was confirmed in 2000, extending its application to other refugees (see Dingemans 2002). In order to access public education, refugee children have to present certain documents such as a birth certificate, a valid passport or valid national identity document (such as a refugee card), the original school certificate from the country of origin, and a letter from the UNHCR, in addition to other documents (ibid., and Article 3 of Decree No. 24 of 1992). These documents are often impossible to obtain, and for those who do not have an official refugee status, the lack of a residence permit bars them from access to public education. The fact that these procedures are regulated by decrees rather than laws creates confusion in the implementation process and proves challenging in communicating the rules down from the ministerial level to the school administration level. As a result, most of those responsible for implementing the laws are not informed about these changes. Secondly, since there are no clear provisions for refugees in official laws, refugees are considered by those implementing policies as foreigners when it comes to access to educational services. Even if refugee children were able to access public education, there are a number of factors which would prevent them from fully exercising this right. Many refugees face language problems, as they do not speak Arabic (Somalis, Eritreans, Ethiopians, southern Sudanese), or do not want their children to be educated in Arabic (either due to their bad memories of Arabization and Islamization from Sudan or because they are hoping to be resettled to the West and find education in Arabic a waste of time). There are also tensions and mistrust between refugee and Egyptian communities, and among refugees there is a strong sense of harassment from the local population due to racism. Many parents complain of their children being harassed on the street and in schools by Egyptian children.

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As a result, many children of refugees with official status attend refugee schools run by churches which have responded to the needs of the community and set up educational programmes for refugees. Others participate in home-schooling organized by some refugee groups. Very few go to public schools, and those who can afford it attend private schools. A large number of children, however, end up not receiving any education at all due to lack of legal status, bureaucratic obstacles to registration and high fees. Right to work. The right to work and equal access to the job market for refugees is another highly sensitive issue for the government. As a result of the government reservation placed on the right to work, refugees are treated like any other foreigners and are subject to the law no. 137 of 1981, which requires them to obtain a work permit. Until 2003, the refugee blue cards (the refugee identity document issued by the UNHCR on behalf of the government and on which the government stamps residency permits) were stamped with ‘not permitted to work’. Nevertheless, according to UNHCR staff in Cairo, refugees are legally allowed to work if they have a work permit,20 but these are available only to people with residency permits and are subject to complicated bureaucratic procedures. With the struggling economy in Egypt and soaring unemployment rates, jobs in the formal sector are unattainable for refugees. Instead, most work in the informal economy, where they compete with locals in mainly low-skilled jobs, as street vendors, construction workers, cleaners, domestic workers, and so forth. With insecure legal status and lack of access to legal recourse, refugees are often exploited by their employers, having to work in harsh conditions for long hours with minimal wages. For Sudanese refugees, a potentially significant development was the signing of the Four Freedoms Agreement on 3 May 2004 (ratified in September 2004). The agreement grants reciprocal benefits to Sudanese residing in Egypt, ostensibly guaranteeing freedom of movement, residence, work and property. In theory, once it is implemented, Sudanese will be able to enter Egypt without a visa and will be able to reside there without any special permits. Also, their right to work, to own property and to establish companies and partnerships will be equal to those of citizens. Due to political bickering between Egypt and Sudan and slow administrative procedures, however, the agreement is still awaiting implementation. Right to health services. Under the national policies on health care, refugees are again considered as foreigners in terms of access to services. Until recently, recognized refugees were referred by the UNHCR to Caritas, one of its implementing partners, to access subsidized medical services. In the case of expensive treatment, refugees cannot afford to pay even the half of the costs that Caritas requires and often have to forgo medical care altogether.

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Due to increasing numbers of refugees and the long wait at Caritas, the health situation for refugees has become critical. As a result, some Sudanese have recognized the urgency of accessing public hospitals on an equal basis with nationals. The representatives of the Sudanese Women’s Union and the National Council on Population and Development (NCPD), together with the UNHCR and the National Council on Childhood and Motherhood, lobbied the Ministry of Health to extend national health care services to refugees. In February 2005, the Minister of Health issued a new regulation allowing access to public primary and preventive health care services for all foreigners. It was agreed that refugees (both asylum seekers and recognized refugees) would pay domestic fees for the services. Recognized refugees, however, received better care through Caritas and thus preferred the wait there than the wait in public health facilities. In addition, there is a great mistrust among refugees of the national health services, and as a result, many do not want to use public hospitals. Thus access to rights and services remains limited for refugees in Egypt, and even where in theory refugees do have rights in certain areas, these rights are often ignored due to bureaucratic and administrative procedures. As a result, international organizations step in to fill in the gap in protection and assistance. International organizations and service providers The role of the UNHCR: protection and assistance Under an agreement signed by the UNHCR and the Egyptian government in 1954, the UNHCR in Egypt has assumed responsibility for refugee status determination in the vacuum of appropriate procedures and the unwillingness of the Egyptian government. According to the UNHCR office in Cairo, there have been numerous discussions with the government regarding the government taking over this responsibility, and the Egyptian government has made public statements about its intention to do so at venues such as ExCom,21 but so far this has not materialized (UNHCR RO-Cairo 2005).22 One of the steps towards a national mechanism for status determination was the creation of a Refugee Affairs Committee in 1984, which led to the establishment of the Department of Refugee Affairs within the Ministry of Foreign Affairs. The reluctance of the Egyptian government to take full responsibility for protection and assistance of refugees might be causally explained by two factors: institutional and financial obstacles faced by the Egyptian government and the political significance of the refugee population in Egypt. While the first reason lies in the difficult economic situation and domestic population pressures, the second is linked to international politics and the national interests of Egypt discussed earlier in the chapter. Until 2004, the UNHCR in Cairo based its programmes on the care and maintenance model, which implies relief focused on providing cash

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assistance, medical care, primary education and some vocational training. Although discussions concerning moving away from care and maintenance towards self-reliance had been taking place at the UNHCR office in Cairo since the late 1990s, the local settlement model23 was only implemented in 2004. This has since led to more emphasis on projects enhancing the selfreliance of refugees, but some assistance is still provided including medical and educational grants.24 Although UNHCR officers in Cairo and elsewhere have tried to reorient their programming by getting away from the top-down community services and needs-driven projects towards more community development programmes, the outcome of these attempts is rather bleak (see Bakewell 2003). In Cairo, the UNHCR’s focus on rights was limited to physical protection rather than wider livelihoods and social protection (see Morvaridi, this volume, for a further discussion of social protection). This confirms the observation by Bakewell (2003) about the general activities and programmes of the UNHCR who stated that the ‘UNHCR has yet to adopt a clear human-rights framework for its humanitarian aid activities and still operates largely within a needs-based approach to assistance’ (Bakewell 2003: 17). This case of urban refugees in Cairo is a good example of the latter.

NGOs and service providers In recent years, the number of organizations providing assistance for refugees has increased significantly. Most of these organizations are refugee led and created, but due to the fluid nature of the refugee population as well as to problems with raising funds, many of them are rather short-lived. The majority of programmes operated by NGOs, including Catholic Relief Services (CRS), Caritas, Africa Middle East Refugee Assistance (AMERA) and churches (such as All Saints Cathedral, the Sacred Heart Church in Cairo and some of the Coptic churches) are not directly aimed at helping people improve their livelihoods while in Egypt, but are more focused on either meeting people’s immediate needs or helping them prepare for resettlement or eventual return to Sudan. However, with the expanding refugee population, depleting funds available to the UNHCR, and the financial constraints of NGOs and churches, the majority of recognized refugees are left with very limited support. Those who have had refugee status applications rejected and are residing in Egypt illegally are excluded from any form of formal assistance. They rely on help from faith-based institutions and community organizations, which serve all refugees. With the shift from care and maintenance to local settlement policy, the UNHCR has attempted to set up a more decentralized system with a greater focus on community-based development. As a result, it had to establish better links with refugee community-based organizations (CBOs) as well as with Egyptian and refugee NGOs, attempting to include them more

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in the implementation of projects. With a greater number of actors and stakeholders involved, coordination and cooperation have become more difficult. In addition, this shift is not easily accepted by organizations which have been implementing needs-based assistance for a long time. In this context, perceptions of the rights of refugees held by different actors influence the types of programmes and interventions implemented.

Perceptions of rights While several recent publications have addressed the issues of institutionalization and operationalization of human rights for refugees and the displaced (see Bayefsky and Fitzpatrick 2000), there has been a lack of focus on the understandings of rights by different actors involved in policies and programmes. In the course of our fieldwork, it emerged that government officials, the UNHCR, donors, service providers and refugees all had very different perspectives on rights. According to several UNHCR officials interviewed, the core of their work focuses on rights, given their mandate of protection (including the principle of non-refoulement, and rights to claim asylum, to residence, and to freedom of movement). Hence, the policies and programmes implemented by the UNHCR, in their view, are inherently rights-based. When it comes to assistance, it is facultative and depends on the ability of the host government to provide access to socio-economic rights. As such, refugee rights are perceived as hierarchical by the UNHCR officials. According to Damtew Dessalegne from UNHCR Cairo, the guarantees of refugee rights are embedded in the international conventions and human rights declarations and underlie the policies promoted by the UNHCR.25 However, the more bottom-up notion of rights-based approaches whereby refugees are themselves part of the process in identifying rights and participating in the decision-making process is still on the periphery of the UNHCR’s work, which has its programming priorities set at the headquarters level in Geneva. For many NGOs and faith-based organizations assisting refugees, the distinction between rights and needs was not clear. Some organizations linked their work to a religious mandate to assist the needy; others saw needs as more important as they correspond to people’s suffering. Overall, the language of rights in the eyes of organizations, institutions and governmental bodies did not have a common denominator. As rights-based approaches become fashionable for donors, rights-based programming is often adopted more as a ‘rights talk’ which would guarantee new funding for NGOs, rather than as a policy direction which is fully integrated into daily activities. Awareness and definitions of rights on the part of refugees also varied. The key concern expressed by refugees was effective protection and security. Refugees view their protection not only in terms of being free from random

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arrests and deportation, but also in terms of having access to basic human rights, such as the right to education, work, housing and health services. Hence, rights for refugees are indivisible and interlinked and as such are seen as the basis for effective protection. The multi-faceted protection sought by refugees encompasses the possibility for them to pursue their lives. Although its starting point is legal (legality in the host country and documents proving residence), it cannot be divorced from opportunities for their economic selfsustenance and social development. Otherwise, legal protection becomes void of meaning and effectiveness. Without the possibility of accessing their right to livelihood, refugees do not see the value of the protection promoted by the UNHCR. ‘Having a blue card is nonsense, it is like being in a prison, but even the prison is better because you are fed there. But we are not given any help so how are we expected to survive?’ asked one Rwandan refugee. For many, protection is linked to rights and the ability to realize them by accessing services. As people without the protection of their own country, refugees strive to find security and stability in their lives. Protection becomes meaningful in the context of being able to access rights, especially through citizenship. Due to their lack of rights, the harsh economic and social conditions and their marginalization in Egypt, refugees perceive resettlement as a form of protection and a right to which they are entitled. Resettlement to Western countries is seen in the context of full membership in an international community where they will have equal rights with those of nationals and access to services and jobs, as well as the possibility of acquiring legal citizenship. The value of citizenship was summarized as follows by one of the leaders of a refugee community organization: When I am granted citizenship, I can live a normal life. It is much more difficult to integrate here because it is difficult to get rights. The chances and the rate of accessing rights in Western countries are much higher than here in Egypt. (Chairman of a CBO, Cairo, 17 March 2005) In this context, the ability to enjoy citizenship in a Western country was seen by refugees as a permanent solution to the non-availability of effective protection in their countries of origin or countries of first asylum (such as Egypt). Possession of a Western passport would allow them to pursue their transnational lifestyles and move between different countries: some Somali refugees, for example, have moved to Cairo after obtaining Western citizenship, in order to educate their children in a country which is culturally and socially closer to Somalia (Al Sharmani 2005). Although theoretically living in the West means access to and enjoyment of rights equivalent to those of citizens, in practice, these rights might not be fully realized for the newly arrived migrants due to racism and discrimination.

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Mobilizing around rights: refugees I believe we know our rights as human beings but according to the Egyptian law, we come from a different country. However, the fact that I have the right to stay in this country means that I have the right to education and work. If an Egyptian has a right to work, why can’t I have the same right as well? (Rwandan refugee in Cairo, 26 May 2005) In the search for solutions to their problems, refugees have organized themselves in order to provide assistance and claim their rights collectively. Most of the mobilization around rights has so far been peaceful and nonaggressive. In Cairo, family and community-based support systems are the main mechanisms through which most refugees sustain themselves on a daily basis (Al Sharmani 2005; Grabska 2005). For a long time, there were many informal refugee community groups. Recently, though, they have become more formally organized and professionalized, with the most active associations being Sudanese and Somali. There are also examples of collective attempts to access rights and of resourcefulness and imagination in finding ways to exercise them. The case of Sudanese refugees in Alexandria, the only refugee group residing in large numbers in the city, provides an example of the readiness, ability and the effectiveness of refugees in solving their problems and asserting their rights collectively. A group of southern Sudanese mobilized as a community and claimed their rights to public education for their children by approaching the Egyptian administration directly. As a result, all Sudanese children, regardless of their status, have access to Egyptian public education. When refugees are able to claim their rights as a community, it becomes gradually more difficult for the authorities to disregard them (Grabska 2006). Different national groups of refugees have also resorted to protesting their living conditions and their inability to enjoy rights to the UNHCR office. As a result of the division of responsibilities between the government and the UNHCR, refugees perceive the latter as their sole protector and guarantor of well-being. Somali refugees have demonstrated in the past few years on several occasions to protest their low recognition rate, the lack of resettlement opportunities, inadequate assistance and, in particular, the unbearable living conditions faced by women-headed households (Al Sharmani 2005). Sudanese, on the other hand, have organized two major demonstrations – one in 2004 and another in 2005. The three month-long protest organized by refugees in September 2005 and extensively discussed by Harrell-Bond in this volume represented a clear process of collective and public mobilization around refugee rights. The thirteen demands presented by the demonstrators included protection from forced repatriation, protection of and assistance to vulnerable groups, the reopening of ‘closed files’ and resettlement to a third country (see FMRS

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2006). The recognition and restoration of refugees’ rights were underlying motivations for the organizers. The sit-in also demonstrated the agency of refugees and their ability to mobilize around rights even under severe restrictions.26 The imperative on the part of the refugees in Egypt to claim and access their rights confirms Nyamu-Musembi’s (2005) assertion that rights are shaped by people’s own contestations and struggles based on their own understandings of what they are justly entitled to. The strength with which the Sudanese were determined to demand citizenship rights was a challenge to both the international politics of protection and the national logic of viewing refugees as a transitory problem. The refugees were searching for a permanent solution to their situation in a country where they can thrive and feel protected, representing a challenge to the Egyptian state’s policy of exclusion which has manifested itself in complete disregard of the responsibilities it took upon itself by signing the refugee conventions.

Muddling through the system: obligations and responsibilities The tragic end to the Sudanese demonstration goes to the core of the debate of rights-based approaches and refugee policies: namely that of obligations and accountability vis-`a-vis refugees. Posner and Clancy (2005) pointedly ask: ‘Who is responsible for protecting refugees and who are the protectors accountable to? The state? Aid agencies? The international community? What does protection mean? Physical protection? Protection against starvation and disease?’ These questions had vague answers in the case of Egypt, as the system of protection of refugees was seen by the government, the UNHCR, NGOs and refugees themselves as a transitory phenomenon without a clear locus of accountability and responsibility. Rights and the ability to realize rights become meaningful when a proper system of justice and locus of accountability is in place (see also Mehta, this volume). Although clearly spelt out in the international conventions (see Harrell-Bond, Trad and Kagan, this volume), the refugee regime, whether international or national, has to a certain extent lost its focus, and there is often little willingness to take responsibility for creating an environment in which refugees can thrive. Due to intertwined roles and lack of clarity in the system, different actors have different perspectives on roles and responsibilities. According to international law, those governments which have signed international conventions, be they concerning human rights or specifically refugee rights, have taken upon themselves the responsibility of guaranteeing rights. The locus of responsibility in implementing rights, monitoring the violations and accessing justice has been a subject of discussion by many scholars and practitioners (see Bayefsky and Fitzpatrick 2000; Hathaway 2007).27 However, what is lacking at the moment is an effective system of accountability to expose the failure of states in their responsibilities to provide refugees with the protection they are due (MacMillan and Olsson

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2001: 38). The obligation to provide assistance is even more complicated (Gorman 1998), as it implies that assistance is governed by legal entitlement. Assistance is considered by the international community to be the responsibility of the asylum state. If the asylum state is unable to provide it, the international community may express its concern and ask the UNHCR to step in. This approach of splitting responsibilities and roles sends contradictory messages to the rest of the actors involved in refugee affairs. For the government in Egypt, the fact that the UNHCR conducts refugee status determination and provides direct assistance translates into refugees being perceived as a separate group from nationals and, as such, the responsibility of the UNHCR. Many Egyptian policy-makers see refugees as being much better off than Egyptians, who do not have the UNHCR to help them, especially with resettlement to a Western country. The role of the government institutions relating to refugees is limited to issuing them with residence permits and other necessary documents. When it comes to full protection and assistance, the government points to the UNHCR. These diffused roles create major bureaucratic challenges. For example, when refugee children approach public schools, they are told that they need to submit a letter from the UNHCR, but the latter argues that it is the duty of the Ministry of Interior to provide such letters. The Ministry of Interior sends refugees to the UNHCR, as, in their view, it is the UNHCR’s responsibility. According to the new health policy, refugees should have access to public hospitals but when they approached government clinics, they were told that they would need a letter from the Ministry of Health. The police also often fail to register claims and reports from refugees, arguing that refugees are under the protection of the UNHCR, but the UNHCR maintains that it provides them with legal, not physical, protection. Access to justice is thus rendered highly problematic. For example, in refugee status determination the only organization that takes full responsibility in Egypt is the UNHCR. Although there is the possibility of appealing a negative decision, the same office carries out this procedure, which leaves it open to abuse (Kagan 2002). Due to lack of national legislation, refugee status determination decisions cannot be appealed in national courts. To seek justice in the event of discrimination or the violation of other rights, in theory refugees have access to national courts, but advocates have never taken up such cases. Refugees themselves do not feel they could use the national justice system to appeal the violation of their rights, including lack of access to schools, or arbitrary arrest and detention in Egypt. Those who do not have refugee status are in an even more vulnerable position and are exposed to the threat of deportation. Hence, refugee rights continue to be bypassed. Refugees feel that it is the role of the UNHCR to provide them with protection and assistance; they do not see themselves as the Egyptian government’s responsibility. Interactions between governmental institutions and refugees

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are superficial and limited to securing residence permits and, for some, registering children in public schools. Some refer to the UNHCR as their government: ‘we live in a country of UNHCR’,28 and regard it as having the power to grant them status and protection and unlimited resources to provide assistance. Hence, if recognized, refugees should be provided with a means of livelihood, which is in their view an integral part of protection, as is the notion of a permanent solution implying access to full citizenship rights. As this is not possible in Egypt, refugees regard resettlement as their right and stress the importance of the UNHCR in this regard. Refugee protection and assistance are unique issues in the international human rights system, as they require close cooperation among many actors, including host governments, governments in countries of origin, donors, intergovernmental organizations, and international and local NGOs. Governments regard considerations of national interest as paramount in foreign policy decision-making, but international humanitarian institutions claim to make their decisions on the basis of moral considerations (Weiner 1998: 433). However, due to their funding requirements, these institutions are also dependent on the interests of donors and, since their presence is usually at the invitation of the government, on host governments. As one of the donor representatives in Egypt commented, ‘no donor would burn its fingers for refugees in Egypt. They are insignificant for our funding priorities here’ (see Grabska 2006). These challenges have to be taken into account when considering the possibility of introducing rights-based policies through bottom-up approaches to the refugee system.

Conclusions: the feasibility of rights-based policies in Egypt The implementation of rights-based approaches in refugee policies is challenging both in the specific context of Egypt and from the institutional perspective of the refugee regime in general. The December 2005 tragedy showed the consequences of a lack of systematic policy and coordination on refugee protection and rights. ‘The right to have rights’ is at the centre of refugees’ search for a permanent solution to their predicament and the indivisibility of rights is at the core of the protection they seek, where legal protection is linked to economic and social sustenance. Only by guaranteeing access to economic and social rights can host governments and international organizations provide effective protection, which would involve Egypt lifting reservations to the Refugee Convention and fully implementing its commitments. The case of refugees in urban areas of the global South shows that by linking access to rights with securing livelihoods, it is possible to create a more concrete understanding of sustainable development and protection for all. However, in many cases, as has been demonstrated in this chapter, the lack of access to livelihoods by refugees is constrained by the lack of access

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and the ability to exercise their rights in host communities (see Jacobsen 2002 and Moser and Norton 2001 for further discussion of these issues). As other studies have shown (Al Sharmani 2003, Grabska 2005), refugees in Egypt are active contributors to the Egyptian economy and if given stable legal status and access to rights, their participation in the development of the country could be even greater. So far, assistance provided to refugees, be it through the UNHCR, churches, community-based organizations or NGOs, singles out and separates refugees from the rest of Egyptian society, resulting in tensions between the impoverished host community and refugees. This approach was based on the dominant thinking by all involved (including the government, the UNHCR, service providers and refugees themselves) that refugees were a transitory ‘problem’.29 Making national authorities more responsible for protection and assistance can be more difficult when international actors single out particular groups (in this case refugees) for special assistance and fail to ensure a broader accountability to all vulnerable persons on the part of local authorities (Collinson 2005: 17). A more integrative approach whereby assistance to refugees is channelled through development aid for Egyptians might serve to overcome some of the Egyptian government’s resistance to protecting refugees effectively. However, more importantly, the government itself must recognize its duty to protect refugees. As difficult as this might be to achieve, there is a need for effective lobbying and coordinated international and national pressure on the government, including the Presidential Office, which would require donors to play a key role. Because of the realities of poverty and deprivation that different marginalized groups (citizens and non-citizens) encounter, this chapter argues that the most effective routes to protection and integration of refugees are through bottom-up developmental programmes in which poor nationals and nonnationals participate fully and actively. This is a challenge which cannot be taken lightly: as Kaiser points out, there is a political dynamic often present in promoting refugee participation, where ‘the participation of refugees in assistance programmes is neither a cost-free nor a politically neutral activity’ (2001: 25). Nevertheless, refugees’ participation in the policy process needs to go beyond consultation and begin to incorporate their own perceptions of rights and how they can be realized in a developing country context. Maintaining the indivisibility of rights and incorporating economic and social rights into the national government’s strategy of protecting refugees is a key step in response to this challenge. This, along with adopting development policies that address the interests, livelihoods and concerns of both the host and refugee populations, is the only way through which refugees’ rights can be fully realized. To fully take on and implement rights-based policies which go beyond physical protection to address the livelihood security of the displaced means great financial commitments on the part of the

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UNHCR, international and national organizations and host governments themselves. However, by opening the doors of livelihood security and access to rights more widely (see also Jacobsen 2002; De Vriese 2006) for poorer citizens and non-citizens, the long-term human, social and financial costs of marginalization and segregation of these groups can be avoided. Notes 1. The question of responsibility for the rights of refugees is further explored in this volume by Samira Trad and Michael Kagan in their chapter on the situation of non-Palestinian refugees in Lebanon. 2. The chapters in this volume by Carol Yong on the case of Orang Asli, the indigenous peoples of Malaysia and by Munzoul Assal on the treatment of rights of internally displaced persons in Sudan elaborate further the discrepancies in access to rights between different groups of citizens. 3. The study was funded by the Development Research Centre (DRC) on Migration, Poverty and Globalization. The study was part of the rights and forced migration theme of the DRC research agenda. It draws on previous livelihood studies of the refugee population in Cairo conducted by myself and other colleagues at FMRS (for further information see http: //www.aucegypt.edu/ ResearchatAUC/rc/fmrs/Pages/default.aspx). 4. It should be emphasized that this increase was made up almost entirely of Sudanese refugees, which reflected the changing patterns of the war in Sudan, particularly as oil exploration intensified during that period. One reason for the increase is that until 1995 Sudanese refugees were provided de facto asylum in Egypt under the Wadi el Nil agreement between Egypt and Sudan, which provided Sudanese with rights to work, education, property ownership and residence equal to those of nationals. In 1995, this agreement was revoked, and new arrivals were obliged to seek refugee status processed by the UNHCR. 5. This figure is low due to both low rates of granting official status (at some points below 30 per cent) as well as a policy of resettlement of recognized refugees to third countries. As per UNHCR statistics, at the end of 2004, some 32,000 people received refugee status with another 7,300 pending decision. It is estimated that some 15,000 refugee files were closed after appeal. 6. This number includes an estimated 50,000–70,000 Palestinians living in Egypt (El Abed 2004). 7. A few refugees have also been resettled to the UK, the Netherlands and elsewhere. 8. Refugee rights and policies in Egypt have to be seen in the context of Egypt’s commitments under the international human rights framework, displaying multilayered adherence to the international principle of human rights. Egypt is a signatory to most of the international and regional human rights conventions and covenants and its obligations to provide economic and social rights to refugees derive from these commitments as well. 9. Article 53 of the Constitution of the Arab Republic of Egypt, 11 September 1971 as amended by the referendum of 22 May 1980. 10. Interview with H. E. Minha Bakhum, former Head of the Refugee Affairs Department at the Ministry of Foreign Affairs (MOFA), 13 March 2005. 11. Mr Mahmoud Rachad M. Ghaleb, Director of Human Rights Department, Head of the Technical Secretariat for the Permanent Arab League Committee for Human Rights, the League of Arab States, 20 April 2005.

90 Forced Displacement 12. Ibid. 13. Mr I. G. Elsouri, Director of Development and Social Policies Department and the Technical Committee of ASAMC, the League of Arab States, 17 April 2005. 14. H. E. Minha Bakhum, MOFA, 13 March 2005. 15. Naturalization of refugees is not possible in any of the Arab countries. The only country which provided for naturalization of Palestinian refugees was Jordan. 16. In June 2004, the Nationality Law was amended providing for the possibility of Egyptian mothers to apply for citizenship for their children even if born from foreign fathers. The law, however, has strict requirements, and only a few qualify for the status. 17. H. E. Mushira Khattab, National Council of Childhood and Motherhood, 6 April 2005. 18. Harrell-Bond argues in this volume that since reservations to the Convention have not been published in the Official Gazette in Egypt, legally they are not part of domestic law. However, this view is challenged by most legal experts in Egypt (see Africa Citizenship Audit 2005) who argue that the actual implementation of the laws is what constitutes national legislation. No lawyer has ever challenged the legality of the reservations in the Egyptian court. 19. Decree No. 24 of 1992 regarding scholarships and procedures governing foreign children’s access to Egyptian schools and access of Egyptian children returning to Egyptian schools from abroad. Published in the Official Gazette 54, 3 March 1992. 20. Deputy Representative (Legal) Damtew Dessalegne, 12 April 2005, UNHCR, Cairo. 21. ExCom refers to the meetings between UNHCR and NGOs at the Executive Committee level which take place once a year at the UNHCR headquarters in Geneva in September. 22. Deputy Representative (Legal) Damtew Dessalegne, 12 April 2005, UNHCR, Cairo. 23. Local settlement projects aim at helping refugees increase their livelihood through micro-credit, employment placement and vocational training. 24. Palestinian refugees remain unassisted, as the United Nations Relief and Works Agency (UNRWA), which is in charge of providing assistance to Palestinian refugees in other countries, does not operate in Egypt. The vast majority of Palestinians live in Egypt without official support and are considered foreigners in terms of most rights and entitlements (El Abed 2004). 25. Deputy Representative (Legal) Damtew Dessalegne, 12 April 2005, UNHCR, Cairo. 26. Since 1981, Egypt has been under Emergency Law which prohibits public demonstrations. 27. See also the response to Hathaway in the Journal of Refugee Studies 20(3) 2007. 28. Many of the refugees who participated in the fieldwork for this research used this phrase. 29. As discussed in the introduction to this volume, in recent years the UNHCR as well as some of the NGOs working for the betterment of the situation of refugees have attempted to introduce more rights-based policies, especially linking them to livelihoods and self-sufficiency programmes (for example, the UNHCR’s community services programming as well as some of the programmes of Oxfam and Care International linking livelihoods and rights perspectives; see also Bakewell 2003).

References Al Sharmani, M. 2003, ‘Livelihood and Identity Contractions of Somali Refugees in Cairo’, Working Paper No. 2, Forced Migration and Refugee Studies, The American University in Cairo.

Brothers or Poor Cousins? 91 Al Sharmani, M. 2004, ‘Refugees and Citizens: the Somali Diaspora in Cairo’, Doctoral Dissertation, Department of Anthropology, Johns Hopkins University, Baltimore, MD. Al Sharmani, M. 2005, ‘The Movement of Somali Refugees and Asylum Seekers and Responses of States Case Study: Egypt’, research report, Geneva: Swiss Migration Forum. Arendt, H. 1986, The Origins of Totalitarianism, New York: Andr´e Deutsch. Bakewell, O. 2003, ‘Community Services in Refugee Aid Programmes: a Critical Analysis’, UNHCR Working Paper Series No. 82. Bayefsky, A. F. and J. M. Fitzpatrick (eds) 2000, Human Rights and Forced Displacement, The Hague: Martinus Nijhoff Publishers. Collinson, S. 2005, ‘Lessons Learned from Specific Emergency Situations: a Synthesis’, in S. Castles and N. Van Hear (eds), Developing DfID’s Policy Approach to Refugees and Internally Displaced Persons, Consultancy Report and Policy Recommendations, 2 vols, Refugees Studies Centre, Oxford. De Vriese, M. 2006, ‘Refugee Livelihoods: a Review of the Evidence’, UNHCR Evaluation and Policy Analysis Unit (EPAU), Geneva. Dingemans, E. 2002, ‘Educational Needs and Priorities for South Sudanese Refugees in Cairo’, unpublished field report submitted to Forced Migration and Refugee Studies, The American University in Cairo. El Abed, O. 2004, ‘Palestinians in Egypt: Analysis of Survival and Livelihood Strategies’, Executive Summary and Working Paper No. 3, Forced Migration and Refugee Studies, The American University in Cairo. FMRS 2005, ‘Africa Citizenship and Discrimination Audit: the Case Study of Egypt’, Report for the Open Society Justice Initiative, Forced Migration and Refugee Studies, The American University in Cairo, May. FMRS 2006, ‘ ‘‘A Tragedy of Errors’’. Report on the Events Surrounding the Threemonth Sit-in and Forced Removal of Sudanese Refugees in Cairo’, Forced Migration and Refugee Studies, The American University in Cairo. Gorman, R. (ed.) 1998, Refugee Aid and Development, Connecticut: Greenwood Press. Grabska, K. 2005, ‘Living on the Margins: the Analysis of the Livelihood Strategies of Sudanese Refugees in Egypt’, Working Paper No. 6, Forced Migration and Refugee Studies, The American University in Cairo. Grabska, K. 2006, ‘Who Asked Them [Refugees] Anyway? Rights and Policies of Refugees in Egypt’, DRC Migration, Globalization and Poverty, Research report, www.migrationdrc.org Hathaway, J. 2005, The Rights of Refugees under International Law, Cambridge: Cambridge University Press. Hathaway J. 2007, ‘Forced Migration Studies: Could We Agree Just to ‘‘Date’’ ? ’ Journal of Refugee Studies 20(3): 349–69. Jacobsen, K. 2002, ‘Livelihoods in Conflict: the Pursuit of Livelihoods by Refugees and the Impact on the Human Security of Host Communities’, Expert Working Paper, prepared for the Center for Development Research study ‘Migration Development Links: Evidence and Policy Options’. Kabeer, N. (ed.) 2005, Inclusive Citizenship: Meanings and Expressions, London: Zed Books. Kagan, M. 2002, ‘Assessment of Refugee Status Determination Procedures at UNHCR’s Cairo Office 2001–02’, Working Paper No.1, Forced Migration and Refugee Studies, The American University in Cairo.

92 Forced Displacement Kaiser, T. 2001, ‘A Beneficiary-Based Evaluation of UNHCR’s Programme in Guinea, West Africa’, Geneva: UNHCR, Evaluation and Policy Analysis Unit. MacMillan, L. and L. Olsson 2001, ‘Rights and Accountability’, Forced Migration Review 10: 38–42. Moser C. and A. Norton, with Tim Conway, Clare Ferguson and Polly Vizard 2001, ‘To Claim Our Rights: Livelihood Security, Human Rights and Sustainable Development’, London: Overseas Development Institute. Nyamu-Musembi, C. 2005, ‘Towards an Actor-Oriented Perspective on Human Rights’, in N. Kabeer (ed.), Inclusive Citizenship: Meanings and Expressions, London: Zed Books. Posner, M. and D. Clancy 2005, ‘A Human Rights-Based Approach to Refugee Assistance’ (http://www.humanrightsfirst.org/intl refugees/issues/refs rights.htm (accessed 3 August 2005). Sperl, S. 2001, ‘Evaluation of UNHCR’s Policy on Refugees in Urban Areas: a Case Study Review of Cairo’, Geneva, Switzerland: UNHCR Evaluation and Policy Analysis Unit. UNHCR RO-Cairo 2004, ‘Statistical Report on Refugees in Cairo’, July 2004, Cairo, Egypt: UNHCR. UNHCR RO-Cairo 2005, ‘UNHCR Country Operations Plan: Egypt’, Cairo, Egypt: UNHCR. Weiner, M. 1998, ‘Clash of Norms: Dilemmas in Refugee Policies’, Journal of Refugee Studies 11(4): 433–53. Zohry, A. and B. Harrell-Bond 2003, ‘Contemporary Egyptian Migration: an Overview of Voluntary and Forced Migration’, Forced Migration and Refugee Studies, The American University in Cairo.

5 Refugees or Foreigners? The Case of Palestinians in Lebanon∗ Jaber Suleiman

I came from there . . . I have learned and dismantled all the words to construct a single one: Home (Palestinian poet: Mohmoud Darwish)1 Longing for home is a sentiment which is deeply rooted in the very being of most refugees. This is particularly true for the Palestinian refugees, who continue to express this feeling in folksongs and oral traditions. A verse from one song is illustrative: ‘My home, if we return, I vow to paint you with henna after whitewash.’ Dispossessed Palestinian refugees still keep keys, deeds, land records and other symbols, proving their ownership and belonging. The Palestinians are among the world’s most noticed and disputed refugees, and since 1948 and the creation of Israel, the Palestinian problem has remained one of the most persistent problems of our time. Drawing on my own experiences as a Palestinian refugee living in Lebanon, this chapter focuses on how my people are fighting to maintain the right to return to their ancestral homes in Palestine. The right to return is intertwined with other rights, such as the right to livelihood, work, education and health (the next chapter by Kibreab discusses the return of Eritrean refugees, and Assal’s chapter discusses return issues amongst IDPs in the Sudan). Palestinian refugees envisage and perceive the right of return as the most sacred issue. As Mohammad Nowfal from Ein el Helweh camp expressed it: ‘The major issue of our Palestinian people is the issue of refugees. It is more sacred than the issue of Jerusalem. There is no substitute for return to Palestine. Neither compensation and staying here, nor resettlement’ (JPMECCE 2001: 16). Yet, while we remain in exile, we do not want other basic rights to be compromised. In Lebanese law we are treated not as refugees, but as any other foreigner, as is the case for the non-Palestinian refugees in Lebanon (see Trad and Kagan, this volume). As this chapter will discuss, this ‘foreigner’ 93

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status results in a lack of realization of our basic rights. Generally speaking, Palestinian refugees in Lebanon are the most unfortunate and destitute grouping of Palestinian refugees in any Arab host country.2 We are deprived of almost all basic human rights and subjected to various forms of marginalization: spatial, institutional and economic. This marginalization is often linked to exclusion and violence (Peteet 1996: 27). Unlike most liberal democracies, where rights are linked to permanent residency, in Arab countries, including Lebanon, the right to citizenship is considered as the primary right from which other basic rights are derived (see Grabska, this volume, for the case in Egypt). Despite our protracted refuge in Lebanon, Palestinian refugees lack a separate legal status that distinguishes them from ‘foreigners’ and grants them the basic human rights in accordance with the provisions of applicable international norms and standards. For six decades, successive peace process negotiations (to which I soon turn) have not manifested realization of the right to return; rather they have bypassed it and prolonged Palestinian displacement. This effective marginalization of the refugee issue has not only raised the fears and increased the uncertainty of Palestinian refugees, but it has also triggered widespread, self-mobilized and independent right of return movements among refugee communities in Palestine and the diaspora. The Aid’un (‘Those who will return’) group in Lebanon and Syria was one of the pioneering groups advocating for Palestinian rights. It is a community-based group advocating for the right of return. I am a co-founder of Aid’un and coordinator of the group in Lebanon.3 My own family fled to Gaza in 1948, and I grew up in a refugee camp there. During the 1967 Arab–Israeli war, I was completing my first university degree in Egypt, but as a result of the war I was cut off from my family and not allowed to go back to Gaza due to Israeli laws and regulations. After the war, I came to Lebanon and married a Palestinian woman, whose family had fled to Lebanon from northern Palestine in 1948. Currently my family is dispersed in different Arab countries: Syria, Saudi Arabia, Jordan and Yemen. This profile characterizes many Palestinian refugee families in the region. This chapter draws on my lived experience as a Palestinian refugee, having survived the gravity and bitterness of nakba (Palestinian dispossession) and exile, and having formed identity through suffering, destitution, intolerance and harassment. In addition, the chapter will benefit from my observations and acquired knowledge as an activist with Palestinian civil society in Lebanon and the Palestinian global right of return movement. The material presented in this chapter also relies on secondary source research, including my own,4 as well as other studies which have already been produced on Palestinian refugees in Lebanon (see, for instance, Aruri 2001; Haddad 2003; Shiblak 1996, 1997; Schulz and Hammer 2003). A brief glance at the relevant literature shows that there is a plethora of research on Palestinian refugees in general and on Lebanon’s Palestinian refugees in particular. There

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is also an imbalance in the approaches adopted: emphasis has more often been placed on political and demographic aspects of the Palestinian refugee issue and needs-based approaches that view them as recipients of humanitarian aid and as a problem and burden for the Arab host countries, especially Lebanon.5 This approach, of course, serves the interest of the decision-makers and negotiators involved in the peace process. Much less emphasis has been given to rights-based and bottom-up approaches that consider Palestinian refugees as actors in their own destiny, and view them as having social force which impacts on policies affecting their rights and livelihoods (see Bocco and Farah 1999; Zureik 1996). In this chapter, I will focus on the current predicament of Palestinian refugees in Lebanon, analysing their ‘ambiguous’ status under the Lebanese law, where they are designated as foreigners.6 The thrust of my analysis will be as follows: (a) highlighting the institutional framework, that is, the administrative bodies set up by the Lebanese state since 1948 in order to control and regulate the Palestinian presence in Lebanon; (b) surveying and investigating the existing domestic legislation (laws, decrees, ordinances, administrative decisions) and related state practices, which affect the rights and livelihoods of Palestinian refugees in Lebanon. The chapter focuses on basic rights, including rights of residency, travel and freedom of movement; of employment and social security; of owning and inheriting property; and of health and education. In addition, this chapter will provide an overview of the following situational factors: the demography of refuge and displacement, and the origin and history of Lebanon’s Palestinian refugee community; and Lebanese perspectives and attitudes towards the Palestinian presence in Lebanon. Further, the chapter provides local perspectives and contradictions regarding realizing refugee rights. It demonstrates that the Palestinian community in Lebanon is not looking for citizenship, and its demand for basic human rights does not entail the right to citizenship. In fact, the right of return is the highest priority for Palestinian refugees in Lebanon. But obtaining basic human rights while in exile would serve to mitigate our destitution and alleviate our day-to-day suffering. Thus, in order to accommodate our isolation and neglect, we are seeking greater economic, social and cultural rights in the local Lebanese context. It must be borne in mind that as opposed to other refugee groups (see the chapters by Trad and Kagan as well as by Grabska, this volume) most Palestinians reject the possible scenarios of resettlement or naturalization. They would not give up the legal status of ‘refugee’ because it is perceived by them as ‘an asset in the battle to survive’ (Peteet 1996: 28). ‘Priding in the ‘‘refugee identity’’ – ‘‘as strugglers’’, ‘‘as more Palestinian’’, ‘‘and as refusing to disappear’’ – makes the marginality of Palestinian refugees a latent form of power’ (Sayigh 2006: 134). In the larger context of the fight for the right to return, this chapter uncovers the Lebanese legislation (de jure and de facto)

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that deprives exiled Palestinians from their basic rights, including the right to work, health and the right to own property.7

Lebanon’s Palestinian refugee community: the demography and politics of refuge and displacement Like other Palestinian refugee communities in the region, Lebanon’s Palestinian refugee community was largely generated before and shortly after the creation of the State of Israel, following the first Arab–Israeli war in 1948. While the founding of Israel by the UN provided a Jewish ‘homeland’ for victimized Jews in Europe, it caused dispersal of the Palestinian population out of their homeland and resulted in what Cohen calls a ‘victim diaspora’ (1977: 31, 51).8 According to United Nations and British government estimates, the number of Palestinian refugees who were displaced from ancestral towns and villages in Mandatory Palestine9 ranges between 726,000 and 810,000 respectively. Approximately 100,000, mainly from Galilee and the coastal areas, fled to Lebanon (see Figure 5.1).10 It is indisputable that the Palestinian population who became refugees in Lebanon and other Arab countries did not flee voluntarily but as a result of ethnic cleansing, forcible eviction and the threat and fear of a potential massacre.11 The subsequent Arab–Israeli wars (1956, 1967) resulted in further waves of refugees who fled the West Bank and Gaza Strip at the outbreak of hostilities, seeking a safe refuge in Jordan, Syria and Lebanon. Further, a few thousand Palestinian refugee families arrived with the Palestinian Liberation Organization (PLO) troops following the fight between PLO guerrillas and the Jordanian army in 1970. It is important to note that the Palestinian refugee population was subjected to continuous homelessness and displacement from one camp or temporary shelter to another. This recurrent displacement is a result of the continuing Israeli invasions (1978, 1982, 1993, 1996) and incursions against Lebanon, as well as the Lebanese civil war (1975–91) including the ‘war of the camps’ (1985–9) and its repercussions.12 The refugee population There are no accurate or reliable figures for the actual numbers of Palestinians in Lebanon. Because of the country’s delicate sectarian structure, any one figure has political implications for Lebanon’s political, sectarian ‘demographic balance’. Lebanon is multi-religious country with eighteen different denominations/sects, in addition to Palestinian refugees. Its political system is based on sectarianism and sectarian balance between the dominant sects: Christian Maronite, Sunni Muslim and Shi’ite Muslim, following the national pact of 1943. It is noteworthy that there is a consensus among Lebanese about rejection of the resettlement of Palestinians in Lebanon. This was constitutionalized in the Ta’if Agreement of 1989, which states that: ‘there shall be

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Figure 5.1

Areas of origin and patterns of flight of Palestinian refugees in 1948

c Martin Gilbert. Source: ‘The Arab Refugees, 1948’, reprinted from Gilbert (1993: 47). 

no segregation of the people on the bases of any type, and no fragmentation, partition, or settlement of non-Lebanese [Palestinian refugees]’.13 Therefore, permanent resettlement of Palestinians in Lebanon or even granting them a wide spectrum of human rights is perceived by many Lebanese as potentially upsetting the balance between Christians and

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Muslims on the one hand, and between Sunni and Shi’ite Muslims on the other. Palestinians are considered Sunnis and thus now constitute a ‘disenfranchised minority’ in Lebanon. Figures are, therefore, politically loaded. In 1950, Palestinian refugees in Lebanon numbered 127,600, while in December 2005 the figure for registered Palestinian refugees was 404,170 (United Nations 2005: 89; UNRWA 2006: 4). Some sources, however, suggest that considerably more Palestinians are present in Lebanon, while other sources argue that the actual number of Palestinians residing in Lebanon is less than the figures given by the United Nations Relief and Works Agency (UNRWA).14 For example, the Department of Affairs of Palestinian Refugees (DAPR) at the Lebanese Ministry of Interior gives an estimate which is about 35,000 higher than UNRWA’s. This difference refers to those refugees who are registered with DAPR, but not registered with UNRWA. The Norwegian Institute for Labour and Social Research (FAFO), points out that a moderate estimate gives around 200,000 people altogether, a number reduced because of out-migration (Tiltnes 2005: 11). Thus, the exact number of Palestinian refugees actually residing in Lebanon is not available. According to UNRWA figures at the end of December 2005, Palestinians make up 11.5 per cent of Lebanon’s population and 9 per cent of the total registered refugees in the UNRWA’s five fields of operation. About 53 per cent of the refugees registered with UNRWA in Lebanon (213,349) live in twelve refugee camps officially recognized by UNRWA (see Figure 5.2), while the rest of them reside in major towns and in ‘gatherings’ located in rural areas outside the camps. It is worth noting that the majority of Lebanon’s Palestinian refugees were born in exile. According to the FAFO report cited above, about 12 per cent of the surveyed population were first-generation refugees born in Mandatory Palestine (Tiltnes 2005: 11). Based on the specific circumstances and nature of displacement and refuge, Palestinian refugees in Lebanon can be grouped into three categories: (a) Refugees who are registered with both UNRWA and the DAPR. Those are the 100,000 people and their descendants who arrived in Lebanon before and shortly after 1948. More than 90 per cent of them originate from the northern part of Palestine. They constitute the main bulk of the Palestinian population and are often referred to as ‘1948 refugees’. (b) Refugees who are not registered with UNRWA in Lebanon, but were registered with DAPR in the 1960s and 1970s. These are refugees registered with UNRWA in its other areas of operation, but they fled to Lebanon, as previously stated, in the aftermath of the Arab–Israeli wars and the fight between PLO troops and the Jordanian army in 1970. They are often referred to as non-registered refugees (NR) or ‘1967 refugees’, and numbers are estimated at 35,000.

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Figure 5.2

Palestinian refugee camps in Lebanon

Source: ‘Palestinian Refugee Camps in Lebanon’, reprinted from USCR (1999: 5).

(c) Refugees who are not registered either with UNRWA or with DAPR are referred to as ‘non-ID refugees’. This is the most vulnerable category of Palestinian refugees in Lebanon, and numbers are estimated at 3,000– 4,000.15

The history of the Lebanese−Palestinian relationship In order to highlight the history of the Palestinian–Lebanese relationship, the history of the Palestinian presence in Lebanon can be divided into the following phases:16 1. Adaptation and hope (1948–58). This phase began with a welcoming stance toward Palestinians seeking refuge in Lebanon, both by the Lebanese

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government and the population at large. It was also characterized by a relatively acceptable level of freedom of expression and political activity. At that time, Palestinians were perceived as a cheap labour force that could contribute to economic prosperity. 2. First crackdown and covert activities (1958–69). This phase began with the coming to power of General Chehab, whose regime initiated an aggressive policy towards Palestinians, subjecting the camps to tight control. The phase ended with the Cairo Agreement signed by the PLO and the Lebanese government in November 1969. The Cairo Agreement granted Palestinians the right to employment, to form local committees in the camps, and to manage their own affairs. It also sanctioned the Palestinian armed struggle against Israel from Lebanon. 3. Overt activity and institution building (1969–82). The Cairo Agreement resulted in a sharp increase in the building of social, economic and cultural institutions, in addition to political, military and organizational activity. The power of the PLO continued to grow, at times constituting a ‘state within a state’, until its departure following Israel’s 1982 invasion into Lebanon. 4. From PLO departure to Ta’if (1982–9). In the aftermath of the PLO departure from Lebanon, Palestinian refugees survived many harrowing experiences. The first was the Sabra and Chatila massacres, when in September 1982 Lebanese right-wing Christian militia, aided by Israel, brutally murdered hundreds of Palestinian and Lebanese civilians. The second was the shrinkage of social, educational and medical services once provided by the PLO. This collapse coincided with a split within the PLO. The third bitter experience was the ‘war of the camps’, which was no less horrible in terms of results than the Sabra and Chatila massacres. The Amal militia launched a war against the Palestinian camps in Beirut and southern Lebanon in mid-May 1985, ostensibly to liquidate all pro-Arafat Palestinian forces remaining in the camps. Amal’s unrelenting siege, during which the targeted camps were almost destroyed and hundreds of Palestinians were killed, continued until 16 January 1988, shortly after the beginning of the first Intifada in the occupied territories.17 The Cairo Agreement had been enforced in Lebanon by Egypt under the leadership of Jamal Abd al Naser as a political compromise between the PLO and the Lebanese state in order to regulate the Palestinian military presence in the country. In fact, the agreement became ineffective after the departure of the PLO from Lebanon as a result of the Israeli invasion of Lebanon in 1982. However, the Lebanese Parliament formally repealed it in May 1987, because it was seen by Lebanon as a violation of its sovereignty. This phase, which culminated in unilateral abrogation by the Lebanese Parliament of the Cairo Agreement in May 1987, resulted in severe difficulties and constraints with respect to employment and freedom of movement and association.

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5. Deliberate neglect: Ta’if, Oslo and beyond (1989–2005). The recent phase, which began with the return of civil harmony to Lebanon, is marked by three landmark political events: the Ta’if agreement, which put an end to the Lebanese civil war in 1989; the Madrid Peace Conference, which brought together the major parties to the Arab–Israeli conflict in October 1991; and the Israeli–PLO Oslo Accord of September 1993 and its subsequent relevant agreements. This period witnessed the resumption of Palestinian–Lebanese dialogue. Following the Ta’if Agreement and the Madrid/Oslo events, the PLO along with Palestinian opposition factions submitted two memoranda pertaining to Palestinian refugees’ basic human rights (September 1991 and April 1999). However, the Lebanese official response was disappointing and the dialogue was suspended until after the assasination of Rafiq Al-Hariri, the Lebanese Prime Minister, in February 2005. During this period the Lebanese state’s restrictive and exclusive approach continued. 6. The post-Al-Hariri new era (post-2005). This new era is characterized by more public and official Lebanese willingness to discuss Palestinian refugees’ rights. Currently this issue is on the agenda of Lebanese elites and is expressed in manifestos made by various Lebanese parties, debates in the media as well as amongst civil society activists and university students. It has also coincided with a change in the official Palestinian discourse on Palestinian presence and refugee files in Lebanon. The Palestinian president, Mahmoud Abbas, has emphasized many times the need to respect Lebanese sovereignty, and affirmed the PLO’s rejection of permanent resettlement of Palestinian refugees in Lebanon. The current era is marked by specific features. There is increased contact between the PLO and Palestinian National Authority (PA) and Lebanon, and the PLO office in Lebanon, closed since 1982, has been reopened. Further, a Lebanese committee was established under the Prime Minister’s office, (Cabinet Decision 41 of 13 October 2005) to conduct direct dialogue with a counterpart Palestinian committee on Palestinian refugees’ rights. There is also clear activity amongst Palestinian and Lebanese NGOs on this issue and some non-governmental initiatives and campaigns regarding to the Palestinian refugees’ rights have emerged. The Israeli war against Lebanon in July 2006 marked a very difficult time for Lebanese civilian populations as well as Palestinian refugees. However, Palestinian refugee camps were considered safe areas compared with Lebanese towns and villages vulnerable to the Israeli shelling, especially in the south. Ein al Helweh and Rashidieh were the only refugee camps that were specifically targeted – the peripheries of Ein al Helweh camp were bombarded three times, and two civilians were killed. This explains why hundreds of displaced Lebanese families fled to Palestinian refugee camps, including Ein al Helweh, seeking safe haven. They were assisted and hosted by Palestinian

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refugee families and Palestinian NGOs. It is paradoxical that outsider refugees hosted native refugees. Although Palestinian NGOs assisted Lebanese displaced families as a priority over already vulnerable Palestinian refugees, Palestinians were excluded from the international and Arab humanitarian aid offered through Lebanese government institutions to Lebanese families in order to help them cope in the postwar situation.

The institutional framework: an overview The institutional framework dealing with Palestinian refugees is very different from the one dealing with non-Palestinian refugees. Trad and Kagan (this volume) provide an in-depth discussion of the situation of the latter group. In this chapter, I focus exclusively on the institutions and laws set up to address Palestinian issues. When the Palestinian refugees first arrived in Lebanon in 1948, the Lebanese government set up a specific administrative apparatus to govern the Palestinian presence in the country. This apparatus has evolved over the years to include two main bodies. First, the Central Committee for Refugee Affairs (CCRA) was created by Presidential Decree 11657 in April 1948.18 This was the first Lebanese intervention to regulate Palestinian refugee status. At that time the prevailing impression was that the Palestinian refuge would be temporary. The task of the CCRA was to administer the Palestinian presence with respect to statistics, accommodation, relief and health care. Second, the DAPR – an office of the Ministry of Interior – was created by Presidential Decree 42 in March 1959, by General Fuad Chehab. The main tasks of the DAPR, as delineated by this Decree, were issuing identity documents for Palestinian refugees and registering their births, marriages and deaths. Simultaneously, Decree 927 was issued to define the tasks of DAPR. DAPR’s legislated structure incorporates liaison officers in various provinces of Lebanon, whose tasks were mainly of a security nature: monitoring the refugees’ political activities and reporting on political and social unrest perhaps caused by them. Wadie Said rightly pointed out that: ‘while the Decree 927 seems somewhat innocuous, detailing a mere bureaucratic function, it in fact serves a more sinister purpose. By entrusting the DAPR with these functions, the decree ensures that the Lebanese state has an accurate profile of each refugee and thus can assess the security risk that he/she presents’ (2001: 132). Compared with Decree 11657 of 1948, the Decrees 42 and 927 are considered a set-back. According to Decree 927 (Article 1:1), DAPR pledges merely to liaise with UNRWA to ‘ensure’ that it provides refugees with the basic social services, without committing the Lebanese government to provide such services. It leaves this responsibility to UNRWA, based on the assumption that the international community, represented by the UN, should carry this burden.

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In November 2000, the Lebanese government passed Decree 4082 which renamed the ‘Department of Affairs of Palestinian Refugees’ as the ‘Department of Political Affairs and Refugees’. Thus the Palestinian refugees ceased to be specified within a department regulating their status, but were merged with other refugees, in spite of the fact that the renamed department continued to carry out the same tasks (see Trad and Kagan, this volume, for an analysis of the situation of Lebanon’s non-Palestinian refugees). It is important to note that the DAPR was administratively downgraded by virtue of the new decree – a step that was perceived by Palestinian refugees as a degradation of their legal status. The Lebanese officials with whom I debated about this decree have denied any sinister purpose behind it; however, they were not able to provide a reasonable explanation or justification for renaming the DAPR.

The rights framework: Lebanese legislation relating to Palestinian refugees’ basic rights Despite the fact that Decree 927 refers specifically to ‘Palestinian refugees’, Lebanese legislators make no attempts to distinguish us from foreigners. Ordinance 319 of August 1962, which regulates the situation of foreigners in Lebanon, considers Palestinian refugees as one of five classifications of foreigners, that is, a ‘special category of foreigners’, despite our protracted residence in the country and our exile as refugees. On the one hand we are denied basic rights that Lebanon granted to its own nationals and on the other we are not guaranteed the refugee rights accepted and recognized in relevant international instruments. Wadie Said (2001: 132) observes that: [t]he distinction between international law norms for refugees and those stipulated in Lebanese law is striking. There is no provision granting any sort of preferred status to foreigners who have resided in Lebanon for more than three years. However, Lebanese law does not afford a separate legal status to them or even define the term ‘refugee’. I now turn to investigate the drastic effect of various Lebanese legislative acts, as well as related state practices, on the livelihoods and rights of Palestinian refugees, beginning with the basic rights of residency, travel and freedom of movement. Residency, travel and freedom of movement As in other Arab host countries, Palestinian refugees in Lebanon are eligible for an identification card/residency card and a special travel document. Different kinds of documents are issued, distinguishing between the three different categories of Palestinian refugees previously mentioned. The first category of refugees who are registered with both UNRWA and DAPR are

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afforded permanent residency cards and renewable travel documents with a validity of five years. The second category of refugees who are registered with DAPR (but not with UNRWA) are afforded the same residency cards, and a travel document valid for only one year and renewable three times. As discussed, the first two categories of refugees, those registered with DAPR and/or UNWRA, are considered legal residents in Lebanon. By contrast, the refugees classified under the third ‘non-ID’ category are considered to be illegally residing in the country. Some of them hold just a paper issued by the Directorate of Public Security affiliated to the Ministry of Interior, which serves as an identification card. Recently, in 2006, the newly opened PLO office in Beirut began to issue identification certificates to the non-ID refugees in order to prove their Palestinian nationality and facilitate their daily life and freedom of movement, but this was organized under a gentleman’s agreement between the PLO and the Lebanese government and has no legislative base. According to the PLO Office, 1,350 refugees had been granted such documents by the end of 2006. It is notable that Palestinian refugees’ right to residency and travel is subjected to ‘arbitrary’ implementation and changes in the political atmosphere. For example, in September 1995 the Libyan leader Colonel Gaddafi took a decision to expel all Palestinians from Libya in a move designed as a protest against the Oslo Accord and the Israeli–Palestinian peace process. In reaction to this decision, the Lebanese government prevented the 15,000 Libya-based Palestinians with Lebanese residence from returning to Lebanon without a special re-entry visa. This entry prevention also applied to any others who happened to be outside Lebanon at the time. The Lebanese Minister of Interior then issued ‘Decree 478 Regulating the Entry and Exit of Palestinian into and out of Lebanon, September 1995’, which stated that: ‘Palestinians outside Lebanese territory will have to obtain an entry visa to Lebanon’ (Article 2, cited in Said 2001: 136). The issuance of Decree 478 increased the suffering of Lebanon’s Palestinian refugees, stranding thousands in airports or along the borders, held in inhumane and humiliating conditions. A report of the US Committee for Refugees (USCR 1999: 14), referring to Palestinian unemployment in Lebanon, stated that: because they face labour restrictions in Lebanon, many Palestinian residents of the country have traditionally sought employment abroad . . . Lebanese visa restrictions prevented Palestinians with Lebanese travel documents from returning to jobs in the Gulf states at a time when Palestinians were slowly being allowed back. The Gulf states reportedly were reluctant to grant visas to Palestinians with Lebanese laissez-passer. This decree was revoked on 12 January 1999, having constituted a clear violation of Article 9 of the Universal Declaration of Human Rights (UDHR)

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to which Lebanon has acceded. Article 9 states that ‘No one shall be subjected to arbitrary arrest, detention or exile’. Wadie Said (2001: 137) argues that: the denial of re-entry permit[s] de facto forces Palestinian refugees who reside abroad into arbitrary exile from Lebanon. While Lebanon is not their country of citizenship the Palestinians reside there legally and any attempt to deny them their right of residency without due process of law is ‘arbitrary exile’ for the purposes of the UDHR. Likewise, Decree 478 was inconsistent with Lebanon’s obligations as a state member of the Arab League, with special reference to the Casablanca Protocol of 1965.19 Another example of violation of the right to travel and freedom of movement is that the Lebanese general security agency arbitrarily removed the names of Palestinian refugees who carry a second nationality from the records of the DAPR. This restrictive practice not only undermined the refugee status of those refugees, but also deprived them of obtaining Lebanese travel documents, for which Palestinian refugees are eligible. However, as a result of the ongoing Palestinian–Lebanese dialogue, the acting Minister of Interior issued Ministerial Decision 1951 in October 2006. This allows the DAPR to re-register those refugees and consequently restores their withdrawn travel documents. It is noteworthy that Decision 1951 is just a ministerial decision and not a new piece of legislation. The right to work and to social security In their capacity as foreigners under the Lebanese law, Palestinian refugees’ right to work and to social security has been regulated by Decree 17561 of September 1962. This Decree, which regulates foreign labour in Lebanon, incorporates three restrictive principles with regard to the right of Palestinian refugees to employment in Lebanon: the requirement of a work permit, the principle of preference given to nationals, and reciprocity of rights and obligations.20 According to Article 9 of the same Decree, the Minister of Labour is entitled to enumerate and list the jobs and trades that are restricted to Lebanese nationals and to update the list annually in line with the emerging needs of the Lebanese market. On 15 December 1995, Minister of Labour Mr Asa’ad Hardan issued Ministerial Decision No. 621/1 in which he enumerated a list of about fifty jobs, trades and independent professions of the private sector to which preference for nationals should be implemented. There are exemptions from the national preference clause if the foreigner is: (a) residing in Lebanon since birth; (b) of Lebanese origin or his/her mother is Lebanese; (c) married to a Lebanese woman for more than one year.21 These exemptions are conditional on the goodwill of the minister, who must give final approval for any exemptions. Theoretically, though, the

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exemptions should be applicable to considerable numbers of Palestinian refugees, especially the second and the third generation who were born in Lebanon after 1948 and who constitute about 90 per cent of the Palestinian refugee population (Tiltnes 2005: 11).22 But in reality, Palestinians have never benefited from this exemption with respect to manual, clerical or professional jobs, given that the reciprocity condition is imposed on membership to professional syndicates, which is a precondition for employment in independent professions in the private sector, such as trade, business, engineering, medicine and law. As for the remaining unskilled jobs not subject to preference to nationals, Palestinian refugees must obtain a work permit, after which they have to compete with other permitted foreign refugees and with Syrian workers who do not need work permits. Usually, however, it is not easy for Palestinian refugees to obtain work permits. According to some statistics, in 1999 the Lebanese Ministry of Labour issued 18,000 work permits to Egyptian workers but only 350 to Palestinians (Sondergaad 2005: 15). The following statistics given by the Ministry of Labour illustrate the number of work permits issued for Palestinian workers during the period 2001–5: 315 work permits in 2001; 291 in 2002; 245 in 2003 and 2004; and 278 in 2005.23 The granting of work permits does not entitle Palestinians to benefit from the Lebanese social security system, though they do have to make their social security contributions like other workers. The right to social security for Palestinian refugees is also dependent on the reciprocity of treatment stipulation. Article 9(4) of the Lebanese social security law states (see Said 2001: 134): Foreign labourers working on Lebanese soil are not subject to the provisions of this law, and therefore are not entitled to the benefit of any and all sections of social security, except if the country of their origin affords its Lebanese residents the same treatment as its own citizens with regard to Social Security. Thus Palestinian refugees are not considered foreign nationals of a state bound to Lebanon by reciprocity. Because their right to work is heavily curtailed, UNRWA, then, is the main agency that legally provides Palestinian refugees with skilled employment (2,934 posts) (UNRWA 2005). Palestinian and international NGOs working in the camps employ significant numbers of skilled and semi-skilled workers and provide more job opportunities through running some micro-credit and income-generating projects within the refugee camps. Some Palestinians operate small enterprises within and around the camps. In addition, Palestinians can work in fields not requiring work permits such as agriculture, animal husbandry and construction. Some skilled Palestinians (engineers, technicians, physicians) have to work illegally in the Lebanese private sector for low wages, and without any social security provisions.

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In the aftermath of former Prime Minister Rafiq Al-Hariri’s assassination in February 2005, Lebanon has witnessed a ‘positive’ atmosphere regarding Palestinian rights. In June 2005 Lebanon’s Minister of Labour, Trad Hamadeh, issued Ministry Memorandum 67/1, permitting Palestinian refugees who were born in Lebanon and have been registered with DAPR to work legally in manual and clerical jobs previously unavailable to them, though they are still required to apply for work permits. The ban on Palestinians seeking professional employment, however, has remained in place. This memorandum should be interpreted narrowly as it does not constitute a change to the Lebanese legislation regulating the labour of foreigners in Lebanon including Palestinians, as was propagated in the media. It is no more than a ministerial decision to organize by law the work of thousands of Palestinians who are illegally working in these manual and clerical jobs. This move has economic motives, as it was assumed that Palestinians would fill the cheap-labour vacuum left by the withdrawal of the Syrian labour force in April 2005 in the aftermath of Al-Hariri’s assassination. Generally speaking, this government initiative does not change the situation on the ground, but it is of symbolic significance and perceived by Palestinian refugees in the camps as a positive gesture and as a first step towards further recognition of the Palestinian refugees’ rights. The Lebanese legislation and state practices with respect to the employment of the Palestinians violate Lebanon’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which Lebanon acceded to in 1971, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Lebanon acceded to in 1976, through discrimination between people on the basis of their nationality. Article 5 of the CERD stipulates that state parties should undertake to prohibit and to eliminate all forms of racial discrimination and to guarantee the right of everyone, notably in the enjoyment of the following rights: . . . (e) Economic, social and cultural rights, in particular: . . . (i) The rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remunerations. . . . (vi) The right to public health, medical care, social security and social services.24 Echoing the CERD, Article 6 of the ICESCR recognizes ‘the right to work which includes the right of every one to the opportunity to gain his living by work which he freely chooses or accepts’, and Article 9 of the ICESCR, which recognizes the right of everyone to social security (Amnesty International 2003: 8–10). It is noteworthy that Article 2(3) of the ICESCR allows developing countries discretion in determining the extent to which non-nationals

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are guaranteed economic rights; however, according to Amnesty International the discrimination levied against Palestinian refugees in Lebanon with regards to the right to work and to social security is not ‘a distinction between citizens and non-citizens but between different groups of non-citizens on the basis of nationality (Palestinian) and descent. It is therefore in contravention of Article 5 of the convention [CERD]’ (2003: 10).

The right to own and inherit property Lebanese legislation imposes many restrictions on foreigners’ freedom to buy property. In their capacity as foreigners, Palestinians were (until 3 April 2001) under the stipulations of Legislative Decree 11614 of January 1969, which stipulates that foreigners wanting to acquire property have to obtain a special licence. However, Article 3 of the Decree granted Arab citizens, including Palestinians, the right to acquire property without prior licence, on a limited scale, up to 3,000m2 in Beirut and up to 5,000m2 in the rest of Lebanon. Accordingly, Palestinians in Lebanon are entitled to acquire immovable property, but as foreigners they have to pay higher fees of 16.7 per cent of the property value, versus 6.7 per cent that nationals pay (Natour 1997: 373). However, on 3 April 2001 the Lebanese Parliament passed law number 296, which amended the first article of Decree 11617 of 1969 stating: ‘It is prohibited to any person who is not a national of a recognized state, or anyone whose ownership of property is contrary to the provisions of the Constitution relating to ‘‘tawtin’’ [the permanent settlement of Palestinian refugees] to acquire real-estate property of any kind.’25 It is evident that the new amended law targets Palestinian refugees, first, because they are not citizens of a recognized state, that is, they are ‘stateless’, and second, because the fear of tawtin settlement of Palestinians in Lebanon is institutionalized in the foundation of the Lebanese legal system.26 The term tawtin means ‘implantation’, referring to permanent Palestinian settlement. It was used for the first time to place new restrictions on Palestinian refugees’ right to own property and is linked to a 1990 Constitutional Amendment.27 As a result of the precedent, the amended law of 2001 (as distinct from the 1989 amended Constitution) not only prevents Palestinians from acquiring property, but also prevents them from inheriting property or registering real estate which they had bought or were buying in instalments at the time. This situation obliges Palestinian refugees either to be trapped in the over-populated refugee camps deprived of their human right to ‘adequate housing’ or to pay a high price for renting an apartment outside the camps, which the majority of refugees cannot afford and which all are prohibited from purchasing. It is noteworthy that restrictions (such as getting prior permits) were imposed by the Lebanese army on bringing building materials into some of the camps. In addition, successive Lebanese governments prohibited the reconstruction of Palestinian refugee camps totally

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destroyed during the Lebanese civil war or building new houses on empty lots outside camps. These restrictive practices deprive Palestinian refugees of adequate housing and contribute to the deterioration of their living conditions. The amended law clearly violates Lebanon’s obligations under Article 5 of the CERD which states: . . . State Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: . . . (d) other civil rights, in particular: . . . (v) The right to own property alone as well as in association with others, (vi) The right to inherit . . . Amnesty International argues that the discrimination against Palestinians with regard to the rights to own and inherit property, when taken in conjunction with the inadequate housing conditions in the refugee camps, ‘creates a situation whereby Palestinian refugees are discriminated against in their enjoyments of the right to adequate housing’, which violates Article 11(1) of the ICESCR (Amnesty International 2003: 8). Other rights In addition to the previously mentioned rights (of residency, travel and freedom of movement; the right to work and social security; and the right to own and inherit property), I will provide a brief overview of other basic rights such as the rights to health, to education and to freedom of association. It is important to keep in mind, however, that all of these are subsidiary to the right of return for most Palestinians. From the perspective of most of us in Lebanon, the struggle for social, economic and cultural rights is fought in order to make the waiting palatable. Health Palestinian refugees have no access to Lebanese government hospitals or other related health services. Therefore UNRWA, the Palestinian Red Cross Society (PRCS) and other NGOs are the main providers of health services for Palestinian refugees. There are, however, shortcomings in the health services provided by UNRWA, and inadequate levels of medical care provided by the PRCS and other related NGOs. The UNRWA Health Programme does not provide complete hospital care. For example, some costly treatments such as open-heart surgery or magnetic resonance imaging (MRI) are not fully funded, and the refugees are left to pay the high cost of such care.

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Education Unlike health services, Palestinians in Lebanon have access to government schools and the Lebanese University, albeit with some restrictions. In their capacity as foreigners, Palestinians are entitled to benefit from a 10 per cent quota reserved for foreigners at government educational institutions. However, in practice this right is only accessible under the principle of preference to nationals. Access to government vocational training schools is exclusively restricted to Lebanese nationals. Beyond that, some faculties in the state university such as the Faculty of Arts are also reserved for Lebanese students. Furthermore, Palestinian students have few opportunities to join other faculties of the Lebanese University such as sciences, medicine and engineering. Although UNRWA’s mandate is to provide only elementary and preparatory education, it exceptionally operates five secondary schools in Lebanon, recognizing the difficulties young Palestinians encounter in accessing secondary schooling. It also runs a programme for university education funded by some of UNRWA’s donors in the international community. In sum, access to basic rights such as employment, ownership of property, health, education and freedom of association is highly restricted and discriminatory for Palestinian refugees in Lebanon.

Conclusion The Palestinian presence in Lebanon is perceived by the majority of the Lebanese elite as a problem. Still, the current political period has begun to witness considerable public and official willingness to grant Palestinian refugees additional rights in the wider context of the ongoing, yet faltering, reconciliation process, known as Ta’if-2. However, there are profound fears amongst Palestinians that their fate is left to the uncertainties of domestic and regional politics. Palestinians in Lebanon have to cope with a continuing restrictive approach and a sectarian, narrow, self-interested political system that considers the furtherance of social and economic rights for Palestinian refugees as steps towards their permanent settlement in Lebanon, and consequently as a threat to the delicate sectarian demographic balance in the country. One of the key problems is the ambiguous legal status of Palestinian refugees in Lebanon (as it is also for non-Palestinian refugees in Lebanon; see Trad and Kagan, this volume). To override this situation, Palestinian refugees should be granted a stable legal status by Lebanon. I argue that national legislation in Lebanon should be reinterpreted and reconciled with international instruments, so as to establish more solid criteria for Palestinian refugees’ rights, based on their legal prolonged residence and the standards that the international community has articulated with respect to treatment of refugees worldwide. The first step towards this is to establish a separate legal

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status for Palestinian refugees in order to distinguish them from foreigners.28 This is one of the most heated issues that Aid’un steadily raises and advocates for in various seminars and discussions held in Lebanon and the region (see Aid’un 2006; Suleiman 2004). Lebanon has ratified a number of international covenants and conventions, and these ratifications allow the harmonization of domestic Lebanese law with international norms and standards pertaining to refugees. Importantly, Article 2 of the Code of Civil Proceeding extends preference for international law over domestic law. This article then exposes the general principle according to which ‘in case of a contradiction between domestic law and the provision of applicable international norms, the international norm shall be applied’ (International Federation of Human Rights 2003: 10). On this basis, international norms should take precedent, guaranteeing basic rights to Palestinians in Lebanon. Finally, it is important to emphasize that the predicament of Palestinian refugees in Lebanon is not solely the result of the exclusivity of Lebanese legislation or the irrationality of Lebanese state policy and practices. Rather, other actors are to blame, and the responsibility must also lie with international community which has fashioned a peace process that is not worthy of its name. This point is illustrated by other refugee or IDP protection cases presented in this volume and addresses one of the key issues of the book: the locus of responsibility to provide and implement the rights of refugees, be they Palestinians or others. It is well known that the Oslo Accord (1993) relegated the solution of the Palestinian refugee issue to the final status talks, as did the Roadmap (2003), where the refugee question was postponed to the final phase. For Palestinian refugees, this marginalized their concerns and pre-empted their campaign for the right to return. The Palestinians in Lebanon probably face the most uncertain fate compared with other Palestinian refugees. Furthermore, anxiety over their fate has deepened because the peace process has reached deadlock. Due to the inattention of the international community to our plight, Palestinian refugees in Lebanon have deep concerns that a just and durable solution, based on full implementation of the 1948 UNGA 194, is unlikely to be reached in the near future, even though our right of return has legal underpinings in human rights law, humanitarian law and law of nationality. To conclude, the troubled history of Palestinians in Lebanon has played a decisive role in casting their present identity and shaping their perspectives and attitudes towards the peace process, or what remains of it. Basic human rights are of utmost importance while Palestinian refugees remain in Lebanon. Rights to residency, freedom of movement, work, social security, property, health, education and freedom of association are being violated to different degrees. While the right to return, enshrined in international law, is prioritized most highly by Palestinian refugees, the realization of basic human rights would serve to mitigate our hardships in exile.

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Notes ∗ I would like to thank Rebecca Napier Moore for editing this chapter and for her invaluable comments that contributed to completion of this work. 1. Mahmoud Darwish, the most prominent Palestinian poet, is the winner of the Prince Claus Fund Award (The Netherlands) for 2004; see Saith (2004: 37–43). 2. See, for example, the case of Palestinians in Egypt, Al Abed (2003). 3. Aid’un Group was established by a number of Palestinian academics, intellectuals and community activists in Lebanon (in late 1999) and in Syria (in mid-2000). Aid’un is a co-founder of the Global Palestine Right of Return Coalition. 4. This chapter is a result of a collaborative research project on refugee rights and policies in the Arab countries carried out in partnership with Forced Migration and Refugee Studies at The American University in Cairo and funded by the Development Research Centre on Migration, Globalization and Poverty. I was the researcher for the part of the project on the situation of Palestinian refugees in Lebanon. 5. This is not just restricted to Lebanon. In most countries refugees are considered to be a burden. See Grabska, Trad and Kagan, Kibreab, Harrell-Bond, this volume, for further examples. 6. The chapter by Trad and Kagan, this volume, discusses the situation of nonPalestinian refugees residing in Lebanon and highlights some of the contradictions in the way these two groups have been treated by national and international bodies. 7. The situation that I outline contrasts sharply with that of many Eritrean refugees in the Sudan who, for a host of reasons, are able to access a range of basic rights and are, thus, in no hurry to return to Eritrea (see Kibreab, this volume). 8. Cohen identifies the Jewish, Palestinian, Irish, African and American diasporas as the principal ones that qualify for the adjective ‘victim’. 9. Mandatory Palestine is composed of present-day Israel, the West Bank and the Gaza Strip. 10. See Figure 5.1, based on the UN estimate, which shows the areas of origin and patterns of flight of Palestinian refugees in 1948. 11. Tessler suggests that ‘the myth of voluntary exodus became Israel’s major argument against accepting even partial responsibility for the refugee problem, not to mention consideration of the refugees’ right to repatriation’ (1994: 118). 12. Nabatiyeh refugee camp near Tyre was completely destroyed in one of the Israeli raids in 1974. Three other refugee camps in eastern Beirut were destroyed and depopulated at the beginning of Lebanese civil war (1975–6). These are: Tal AlZatar, Jisr albasha and Dikwaneh. The term ‘war of the camps’ refers to the conflict initiated by Shi’ite Amal militia against the remnants of the PLO in the camps after its withdrawal from Lebanon in 1982. 13. The text of the Ta’if Agreement, September 1989, is available at: http//www. wikisource.org/wiki/Taif Agreement 14. The United Nations Relief and Work Agency for Palestine Refugees in the near East (UNRWA) was created by UNGA on 8 December 1949 with a mandate ‘to carry out in collaboration with local governments the direct relief and works program as recommended by the UN Economic Survey Mission’ without prejudice to the provisions of Paragraph 11 in UNGA Resolution 194. 15. Recently, significant attention has been paid to this category of refugees, through surveys and studies that highlight their legal situation and socio-economic

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16. 17.

18. 19.

20.

21.

22. 23. 24. 25. 26.

27.

28.

conditions (see Frontiers Association 2006). The first generation (of now nonID refugees) came to Lebanon from other countries where they had been refugees and were unable to gain legal recognition in Lebanon. As their identity documents expired or were lost, they had neither residency nor valid identification. Subsequent generations have been born to non-ID fathers. Lebanon usually bans the registration of Palestinian refugees who fled after 1948 or whose first country of refuge was not Lebanon. Also UNRWA considers them ineligible for registration. For further discussion on the history of the Palestinian presence in Lebanon, see Suleiman (1999). According to one estimate, 2,500 people were killed, and 80 per cent of homes in Chatila and 50 per cent of homes in Burj al-Barajneh were demolished (Khalidi 2001: 7). The Decree was published in the Official Gazette 18 (5 May 1948): 207. The Protocol on the Treatment of Palestinians in the Arab States was adopted by the Arab League Council of Foreign Ministers in 1965 in Casablanca. The Casablanca Protocol addresses the issue of temporary protection of Palestinian refugees in Arab host states. It is noteworthy that Lebanon is amongst the Arab states that ratified the Casablanca Protocol – subject to reservations of its first three articles. For more details regarding Lebanon’s position and for the full text of the Protocol, see Takkenberg (1988: 374–6). Reciprocity of rights and obligations requires that in order for Palestinians to be granted rights in Lebanon, Lebanese must be granted the same in Palestine. So this principle is not applicable to Palestinians in Lebanon because of the lack of a Palestinian state. For the full text of Decision 621/1 of 1995, see Danish Immigration Service (1998). Article 2 of the Ministerial Decision of 1995 exempted some foreigners from the Decision of Article 8 of Decree 17561 of September 1962. Figures are according to the FAFO estimate. These figures were personally obtained from the Ministry of Labour. See http://www.ohchr.org/english/law/cerd.htm Unofficial translation. Law 296 was published in the Official Gazette 15 (5 April 2001). At that time the intended purpose of the late Prime Minister, Rafiq Al-Hariri, was to encourage foreign investments in the country through lifting restrictions imposed on the acquisition of immovable property by foreigners in Lebanon, as per the decree of 1969. This plan was opposed by many MPs under the pretext that this would facilitate the acquisition of property by Palestinians, and, according to them, lead to tawtin. Thus the Lebanese Parliament amended that Decree and passed the above-mentioned law number 296 at the expense of Palestinians, who were victims of the Lebanese dispute as a kind of trade-off. Paragraph I in the preamble of the Constitution was amended by the Ta’if Agreement of 22 October 1989 (introduced by the Constitutional Law of 21 September 1990). Similar arguments are put forward by Trad and Kagan, this volume, with respect to refugees from other countries in Lebanon.

References Aid’un 2006, ‘The Basic Rights of Palestinian Refugees in Arab Host Countries’, dossier in Arabic, Al Adab 54(1–2), January: 52–86. Amnesty International 2003, ‘Economic and Social Rights of Palestinian Refugees: Lebanon’, AI AL Index MDE: 18/017/2003, 22 December.

114 Forced Displacement Amnesty International 2007, ‘Palestinian Refugees in Lebanon’, online report, available at: http://web.amnesty.org/pages/369-270306-feature-eng Aruri, Naseer Hasan 2001, Palestinian Refugees: the Right of Return, London: Pluto Press. Bocco, R. and R. Farah 1999, ‘Problematics and Questions for the Final Symposium of CERMOC’S Research Program: UNRWA: a History within History’, unpublished paper, CERMOC International Symposium, Jordan, 31 August– 2 September. Cohen, R. 1977, Global Diasporas: an Introduction, London: UCL Press. Danish Immigration Service 1998, ‘Report on Fact-Finding Mission to Lebanon’, Copenhagen: Danish Immigration Service, October, available at www.unhcr.org/ home/RSDCOI/3ae6a5be4.pdf El Abed, O. 2003, ‘Palestinians in Egypt: Analysis of Survival and Livelihood Strategies’, Executive Summary and Working Paper No.3, Forced Migration and Refugee Studies, The American University in Cairo. Frontiers Association 2006, ‘Falling through the Cracks: Legal and Practical Gaps in Palestinian Refugee Status’, Beirut: Frontiers Association. Haddad, Simon 2003, The Palestinian Impasse in Lebanon: the Politics of Refugee Integration, Brighton: Sussex Academic Press. International Federation of Human Rights 2003, ‘Palestinian Refugees: Systematic Discrimination and Complete Lack of Interest on the Part of the International Community’, a report of the International Investigation Mission, Lebanon, FIDEH (4–8 September 2002), Report No. 336. Joint Parliamentary Middle East Councils Commission of Enquiry (JPMECCE) 2001, ‘Palestinian Refugees, Right of Return’, London: JPMECCE. Khalidi, Muhammad A. (ed.) 2001, Palestinian Refugees in Lebanon 2001, Beirut: Institute for Palestine Studies. Martin, Gilbert 1993, Atlas of the Arab Israeli Conflict, New York: Oxford University Press. Natour, S. 1997, ‘The Legal Status of Palestinians in Lebanon’, Journal of Refugee Studies 10(3), September: 360–77. Peteet, J. 1996, ‘From Refugees to Minorities: Palestinians in Post-war Lebanon’, Middle East Report 200, July–September: 27–30. Said, W. 2001, ‘The Obligations of Host Countries to Refugees under International Law: the Case of Lebanon’, in Naseer Aruri (ed.), Palestinian Refugees: the Right of Return, London: Pluto Press. Saith, A. 2004, ‘Mohmoud Darwish: Hope as Home in the Eye of the Storm’, Prince Claus Fund Journal, Special Issue on Asylum & Migration, 11: 37–43. Sayigh, R. 2006, ‘Back to the Center. Post-Oslo Revival of the Refugee Issue’, in Joel Beinin and Rebecca Stein (eds), The Struggle for Sovereignty: Palestine and Israel 1993– 2005, California: Stanford University Press. Schulz, Helena Lindholm and Juliane Hammer 2003, The Palestinian Diaspora: Formation of Identities and Politics of Homeland, London: Routledge. Shiblak, Abbas 1996, ‘Residency Status and Civil Rights of Palestinian Refugees in Arab Countries’, Journal of Palestine Studies 25(3): 36–45. Shiblak, Abbas 1997, ‘Palestinians in Lebanon and the PLO’, Journal of Refugee Studies 10(3): 261–74. Sondergaad, E. 2005, Closing Protection Gaps: Handbook on Protection of Palestinian Refugees in State Asignatories to the 1951 Refugee Convention, Bethlehem/Palestine: Badil Resource Centre. Suleiman, J. 1999, ‘The Current Political, Organizational and Security Situation in the Palestinian Refugee Camps of Lebanon’, Journal of Palestine Studies 29(1) (113): 60–80.

Refugees or Foreigners? 115 Suleiman, J. 2004, ‘Palestinian Civil Society Perspective: Towards Improving Protection for Palestinian Refugees: Report from 2003, Beirut Workshop’, paper presented to Seminar 3, Badil Expert Forum (2003–2004) on: ‘Closing the Gaps: from Protection to Durable Solutions for Palestinian Refugees’, Al-Ahram Center for Strategic and Political Studies (Cairo, 5–8 March). Takkenberg, L. 1998, The Status of Palestinian Refugees in International Law, Oxford: Clarendon Press. Tessler, M. 1994, A History of the Israeli–Palestinian Conflict, Bloomington: Indiana University Press. Tiltnes, A. A. 2005, ‘Falling Behind: a Brief on the Living Condition of Palestinian Refugees in Lebanon’, Norwegian Institute for Labour and Social Research (FAFO), Report 464. United Nations (UN) 2005, ‘Report of the Commissioner General of UNRWA’, 1 July–30 June 2004, New York: United Nations. UNRWA 2005, UNRWA in Figures (as of 30 June 2005), Gaza: Public Information Office. UNRWA 2006, Registration Statistical Bulletin, 4/2005, Amman: Department of Relief & Social Services. US Committee for Refugees (USCR) 1999, ‘Trapped on All Sides: the Marginalization of Palestinian Refugees in Lebanon’, Washingtion, DC: Immigration and Refugee Service of America. Zureik, E. 1996, Palestinian Refugees and the Peace Process, Washington, DC: IPS.

6 Access to Economic and Social Rights in First Countries of Asylum and Repatriation: a Case Study of Eritrean Refugees in Sudan Gaim Kibreab

Introduction As discussed in the preceding chapters, access to rights and the ability to enjoy them in host countries influence the livelihood security and overall well-being of refugees. However, does the ability to enjoy rights (or not) make a difference regarding decisions concerning return to one’s country of origin? After a brief discussion of the thirty-year war of Eritrean independence (1961–91) and forced migration, this chapter examines the extent to which the decision of refugees to return to their countries of origin is determined by political changes that occur in such countries or by the extent to which refugees are able to enjoy, de facto or de jure, access to economic and social rights in countries of asylum. The chapter addresses this question by examining in detail the different responses of Eritrean refugees in Sudan, especially in the eastern and Red Sea regions and their environs, to the definite elimination of the factors that prompted them to flee from Eritrea in the 1960s, 1970s and 1980s. I have been conducting research on Eritrean refugees in Sudan since the early 1980s. When Eritrea became independent, a substantial proportion of refugees returned to Eritrea, but others stayed on in Sudan in spite of the fact that the factors that prompted their displacement ceased to exist when Eritrea became independent de facto in May 1991 and de jure in May 1993. I followed the returnees across the border to study the process of (re)integration, the construction of communities and livelihoods, as well as their reception by those who had remained in Eritrea. Because the decision of those who stayed in Sudan was contrary to expectations, I undertook several field trips in Sudan to attempt to understand why some people had chosen to remain there instead of returning to Eritrea. The data that this chapter draws on are therefore derived from numerous spells of fieldwork conducted over a period of nearly two and a half decades in Sudan and, after 1993, in 116

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Eritrea. I am Eritrean myself and have been living in exile in Europe since the 1980s. My primary data sources are drawn from ethnographic fieldwork and participant observation as well as quantitative and qualitative surveys. Throughout my academic career I have written extensively on the situation of refugees in the Horn of Africa, examining issues of livelihoods, rights and policies. The chapter hypothesizes that, contrary to received wisdom and the principles underlying the international instruments relating to refugee status, return movements do not necessarily emerge due to the the elimination of the factors that prompt refugees to flee their countries of origin. Whether refugees ‘vote with their feet’ homewards in response to the cessation of the factors that prompt them to flee is to a large extent determined by whether or not the refugees in question have access to economic and social rights in countries of asylum. The notion that displaced people have the agency to influence their lifeworlds and destiny, and the issue of whether and how displaced people access and enjoy a range of rights, are some of the key themes of this volume. This chapter demonstrates that the ability to enjoy a range of informal rights plays an important role in whether or not refugees decide to return to their countries of origin. Jaber Suleiman’s discussion in the previous chapter on the situation of Palestinian refugees in Lebanon, and their willingness to sacrifice some of their rights in exile to safeguard their right to return, highlights another dimension of the linkages between rights and return. This chapter demonstrates that, whether the rights of sustenance – i.e. economic and social rights – are sanctioned formally by public policy is of minor significance. What is significant is whether the refugees are able to access such rights regardless of whether or not they are sanctioned by law and enforceable in a court of law. I argue that even though the Eritrean refugees remaining in Sudan lack legally established formal rights on which they can base their claims to natural resources, employment and self-employment opportunities, freedom of movement and residence, they have been able to demonstrate a remarkable degree of agency reflected, inter alia, not only in their ability to critically analyse and evaluate the circumstances that create and reproduce difference, vulnerability and disenfranchisement, but also to transform these conditions. Key resources that they draw on are the social networks they have developed over time based on religion, ethnicity, language and way of life. While one should not exonerate the government for the absence of a sound policy on integration, in this case it has not hindered refugees in exercising a high degree of agency to claim a range of rights in the informal realm. This is also the case for other displaced populations discussed in this volume whose struggles for rights highlight a strong awareness on the part of displaced people of their rights and entitlements (see chapters by Grabska, Suleiman, Assal, Mehta, and Yong). The adverse policies in Sudan seem to function as a stimulus to social change and progress, at least among those sections of the

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Eritrean refugee populations connected with sections of the host population by religion, ethnicity, language and way of life.

The Eritrean war of independence and forced migration The Eritrean national liberation movements – namely, the Eritrean Liberation Front (ELF) and the Eritrean People’s Liberation Front (EPLF) – led a historic independence struggle against Africa’s largest army. The victory of the Eritrean people was, therefore, awesome – against all the odds. However, since independence, the EPLF, now the People’s Front for Democracy and Justice (PFDJ), has flagrantly breached the trust placed in it by the Eritrean people and, as a result, independence has failed to stem the flow of refugees. However, although thousands have been fleeing independent Eritrea in the post-independence period, these groups of refugees are beyond the scope of the chapter. The main focus of the discussion here are the pre-independence refugees. Although accurate statistics are hard to come by, during the war of thirty years (1961–91) about 600,000–700,000 people fled the country in search of international protection. Given the geographical propinquity between the two countries, as well as the historical links between the peoples of Eritrea and Sudan, and the sympathetic attitude of the Sudanese people towards the war of Eritrean independence, the large majority fled to Sudan either to seek protection or en route to the Gulf States, Western Europe and North America. The majority of those who originated from rural Eritrea ended up in reception centres that have over time become institutionalized. Some, especially those who arrived before 1978, were transferred to agrarian-based or wage-earning settlements from the transit centres (Kibreab 1987, 1996b). Most of these were located in the eastern region of the country. Three wageearning settlements were also located in the central region of the country (Kibreab 1990). In these settlements, the refugees were expected to support themselves by selling their labour power in irrigation schemes.

Sudan’s refugee policy and settlement strategies Sudan’s refugee policy is based, inter alia, on the following assumptions. Firstly, refugees represent a potential threat to national and societal security (Karadawi 1999; Kibreab 2000) and therefore they should be placed in spatially segregated sites where their activities and movements can be easily monitored and controlled by the government (Government of Sudan 1974). One of the central preoccupations of consecutive governments has, therefore, been to keep the towns and urban centres free of refugees (Kibreab 2005a). The second important assumption underlying the consecutive governments’ policies on refugees, similarly to those in Egypt and Lebanon (see Grabska, Trad and Kagan, and Suleiman, this volume) and elsewhere in the

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region, is that refugee status is temporary regardless of its duration. The corollary of this assumption is that refugees should not be allowed to integrate into host societies and should return to their countries of origin once the factors that prompted them to flee are eliminated. Elsewhere, I have discussed further significant features of Sudan’s refugee policy (Kibreab 2005a), but these two aspects of it are the focus of what follows here. Securitization and spatial segregation Sudan’s consecutive governments have had an instrumentalist view of the Eritrean refugee problem in determining policies of refugee reception and protection. Before Eritrea’s independence, policies towards Eritrean refugees varied depending on Sudan’s relations with Ethiopia (Karadawi 1999; Kibreab 2000, 2005a). In the post-independence period, policies have been equally dictated by national security and foreign policy interests. Eritrean refugees are still viewed by the government as being potentially subversive people who, if given a chance, could destabilize the political situation in Sudan. The governments have, therefore, been keen to keep Eritrean refugees in designated places outside of urban centres, where their freedom of movement and of residence is limited (Karadawi 1982, 1999; Kibreab 1994, 1996a, 2000). A key instrument used to achieve this goal has been to place refugees in spatially segregated camps in rural areas. A further instrument has been round-up campaigns known as Kesha (see Karadawi 1999; Kibreab 1996c). The policy on spatial segregation is intended to enable consecutive governments to control the activities, movement and residence of the refugees and to facilitate their repatriation when the conditions that forced them to flee come to an end (Kibreab 2000, 2005a). Temporariness of asylum The second principle underlying Sudan’s refugee policy is that refugee status is temporary, regardless of its duration. In other words, refugees are accepted as temporary guests en route to voluntary repatriation. They cannot acquire Sudanese nationality no matter how long they stay in the country (Attiya 1988; Kibreab 1994, 1996a), as is also the case for refugees in Egypt or in Lebanon as discussed in this volume by Grabska and Trad and Kagan respectively. At a policy level, solutions to the refugee problem are conceived in terms of changes that take place in countries of origin, not in the context of exile. Elaborating on the fundamental principles underlying Sudan’s refugee policy and settlement strategies, in 1988 Mr Attiya, at that time the Commissioner for Refugees in Sudan, stated: If you talk of integration as a sort of naturalisation, this is completely rejected in Sudan . . . Being a refugee in a country for 20, 30 or 100 years,

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I don’t think will deprive you of your own nationality, your own origin . . . That is why in Sudan you hear that refugees [read the government has] have adopted this policy of local settlement, rather than local integration . . . refugees should be given a certain place to live in, to continue their own sort of relations with their own people [not with Sudanese], not to forget their country, because we are not interested that they will forget their countries; they have to go back. We don’t want more population in this country: it is enough. (Attiya 1988, emphasis added) This clearly reflects the general rationale underlying Sudan’s refugee policy. Nevertheless, this policy is by no means unique to Sudan, but is generally similar in all refugee-hosting countries throughout the developing societies of Africa, Asia and Central America (see Kibreab 2003a; see also chapters by Grabska and Trad and Kagan, this volume). In the following we shall see how the ability of refugees to access economic and social rights even in the context of a policy framework that formally denies them the ‘right to have rights’ influences their decisions concerning repatriation subsequent to the elimination of the factors that forced them to flee their country of origin. However, before dwelling on this question, I discuss the extent to which the root causes that prompted forced migration during the war of independence have been eliminated, and how the preindependence refugees responded to the political changes that culminated in Eritrea’s independence.

Elimination of the root cause of forced migration With the exception of some of the former ELF fighters who fled Eritrea in connection with the second phase of the civil war fought between the ELF and the EPLF that resulted in the ejection of the former from Eritrea in July 1981, all Eritreans who fled before May 1991 did so for reasons directly or indirectly linked to the war of independence (1961–91). The end of Ethiopian rule and the consequent establishment of an Eritrean state after 99.8 per cent of the Eritrean people voted in favour of independence in April 1993 had indisputably eliminated the initial factors that prompted nearly 700,000 Eritreans to flee their country in search of international protection. On 8 May 2002, the UNHCR (2002b) stated the following, in a press release headed, ‘UNHCR Declares Cessation of Refugee Status for Eritreans’: UNHCR announced . . . that it is ending refugee status for all Eritreans who fled their country as a result of the war of independence or the recent border conflict between Ethiopia and Eritrea. The world-wide cessation will take effect on December 31 and will affect hundreds of thousands of Eritreans in neighbouring countries.

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The then High Commissioner for Refugees, Ruud Lubbers, further noted: I believe that these two groups of refugees from Eritrea [those who fled during the 30-year war and the border war] should no longer have to fear persecution or other reasons to continue to be regarded as refugees. They will, therefore, cease to be regarded as refugees by my office with effect from the end of this year. (UNHCR 2002b)

Refugees’ responses to independence The question asked here is: how did the Eritrean refugees in Sudan respond to this changed situation? The international protection regime is premised on the fundamental assumption that asylum should be provided only to those who flee from well-founded fear of persecution on account of one of the reasons stipulated in the 1951 UN Convention and its regional supplement, the 1969 Organization of African Unity (OAU) Convention. Once the conditions that prompt people to flee are eliminated, refugees are expected to avail themselves of the protection of governments in their countries of origin. Unlike in European and other Western countries, where permanent refugee status often leads to the acquisition of naturalization or citizenship, in developing societies refugees are expected to return to their countries of origin once the factors that prompted their displacement are eliminated (Kibreab 2003a; see also chapters by Grabska, Trad and Kagan, Suleiman, and Harrell-Bond, this volume). When Eritrea achieved its independence after thirty years of war, most people expected the refugees to ‘vote with their feet’ homewards. When the refugees fled Eritrea in the 1960s, 1970s and 1980s, there was no Eritrean state, and therefore the latter was not responsible for causing their displacement. Between 1989 and 1995, a total of 49,091 families organized their own return to Eritrea without receiving assistance from the UNHCR or the government of Eritrea (ERREC 1996). Between 1989 and 1997, 58,440 families had returned to Eritrea, constituting a total of 188,924 individuals (ERREC 1997: iv). These figures refer to self-returned refugees from Ethiopia, other African countries, the Middle East, Europe, North America and Asia with the large majority, numbering 133,125 (71 per cent), of refugees from Sudan (ERREC 1997: 4). Between 1994 and 1995, 24,220 refugees were returned from Sudan under the Refugee Reintegration and Rehabilitation of Resettlement Areas in Eritrea (PROFERI) scheme (ERREC 1996). After the signing of the peace agreement between Eritrea and Ethiopia in December 2000, about 55,000 refugees returned to Eritrea from Sudan. Some of these refugees were displaced due to the border war. Since there is no breakdown of those who fled, it is difficult to know how many of the post-border war returnees were from the pre-independence period. However, the return

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movement has continued uninterrupted since the signing of the agreement. Between 1989 and the first half of 2006, over 210,000 pre-independence refugees returned from Sudan. This is despite the fact that thousands of young men and women have been fleeing the country to escape from the open-ended national service and gross violation of human rights during the same period (Kibreab 2006). The next important question is, how many of the pre-independence refugees remained in Sudan subsequent to Eritrean independence? According to UNHCR sources, there were an estimated 315,000 Eritrean refugees in Sudan in 2002 (UNHCR 2002a), that is, about ten years after the elimination of the root cause that prompted them to flee, but also including those who fled Eritrea in the post-independence period. In Sudan the large majority of Eritrean refugees are not registered, and there has never been a census based either on full enumeration or a representative sample. However, since most of the young men and women who fled Eritrea do not stay in Sudan but instead use the latter as a stepping stone for further emigration to Europe and North America, we can assume that the large majority of the 315,000 were pre-independence refugees. When the UNHCR decided to apply the cessation clause in May 2002, it declared that all Eritrean refugees in the country should register for repatriation before 31 December 2002. Those who had well-founded fears of being persecuted upon return should reapply for new refugee status. In response, 27,000 heads of households (an estimated 90,720 persons) filed applications to be considered for new refugee status determination. Up to 2002, the total number of people who fled post-independence Eritrea was not very large. UNHCR’s 2005 figures show that the total number of Eritrean refugees in Sudan is 117,000 (UNHCR 2005), despite the fact that tens of thousands have been fleeing post-independence Eritrea since 2002. Hence the UNHCR figure of 315,000 refugees in 2002, which is based on government sources, is highly probably an overestimate. More recent UNHCR figures show that the total number of Eritrean refugees in Sudan in 2005 was 110,927 (UNHCR 2005: Table 5). It is important to state, however, that there are many Eritreans living in different parts of the country, especially in Kassala town and Port Sudan, who did not reapply for new refugee status because, as we shall see later, they had either acquired Sudanese citizenship (jinsia) or had regularized their stay by acquiring a Sudanese abu taka (national identity card). However, since those who have integrated into Sudanese societies and those who manage to pass as Sudanese are reluctant to reveal their Eritrean identity, neither the government of Sudan nor the UNHCR has a clue about their actual numbers. Some interesting questions emerge. Firstly, why did some of the Eritrean refugees choose to stay in Sudan in spite of the fact that the factors that prompted them to flee were eliminated, whilst others returned in response to the political changes that took place in their country of origin? Secondly,

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why did the government of Sudan not apply the cessation clause after the UNHCR decided to do so? The latter question is important because most host governments tend to follow suit once the UNHCR decides to apply the cessation clause to a particular group of refugees.

Towards an explanation of the ‘anomaly’ On the surface, the failure of the pre-independence refugees to return to their country of origin appears to be anomalous and, therefore, needs closer scrutiny. With the exception of the politically active few, whose decisions concerning repatriation are motivated by the post-independence government’s ‘winner takes all’ exclusionist policy, the answer may lie in the fact that, appearances and rhetoric notwithstanding, the majority are, de facto, able to enjoy economic and social rights nearly on equal footing with Sudanese citizens, despite a policy environment that formally denies them the ‘right to have rights’ beyond those stipulated in the 1951 UN and 1969 OAU Conventions. I have argued elsewhere that return movements are determined by the extent to which refugees are able to enjoy citizenship rights either as citizens or denizens rather than by mere political changes that occur in countries of origin (Kibreab 2003a). This is true even when refugees as non-citizens or as non-members of ‘the imagined community of the nation-state’ (Kabeer 2005) have no ‘right to have rights’, as well as for those who are naturalized. In developing societies such as Sudan, in which citizenship is synonymous with nationality and where social and economic rights available to citizens are denied to non-nationals or non-citizens, not only does citizenship define the boundaries that distinguish between insiders and outsiders, but it also plays a key role in the distribution of rights and resources (Kibreab 1999b). Nevertheless, if refugees do in fact enjoy access to economic and social rights on equal footing with nationals of countries of asylum, they are not likely to consider repatriation as a viable option. The only conceivable exception to this is when the structural factors that determine livelihood security are more favourable in countries of origin than in countries of asylum.1 Refugees’ responses to the elimination of the factors that prompt their displacement are also considerably influenced by changes they undergo in exile. These changes may be political, ideological, occupational, cultural or social. Eritrean refugees in Sudan have undergone fundamental changes and transformations (see Kibreab 2002, 2003b, 2004, 2005b). In the immediate post-independence period, all the refugees in Sudan expressed a powerful desire to return home (Kibreab 1996a). Many of them organized their own return or returned under the PROFERI Pilot Scheme without receiving any external assistance (see Tables 6.1 and 6.2; Kibreab 1999a), whilst others stayed in Sudan in spite of their unambiguously expressed desire to return. In view of the fact that there was no controversy

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regarding the elimination of the factors that prompted the refugees to flee, the decision of the pre-independence refugees to remain in Sudan has bewildered many observers, including the UNHCR and non-governmental organizations that worked among them. In a situation in which government policy treats refugees either as temporary guests with no rights to permanent residence and naturalization or discriminates against them, inter alia, by placing them in spatially segregated sites or by depriving them of the right to choose and practise their occupation and residence, the only way refugees gain access to a range of resources and rights, such as arable and grazing land, water, employment, self-employment, education, health care services, and freedom of movement, is by subverting or circumventing such policies. This chapter continues by discussing the policies that are intended to prevent the refugees from accessing economic and social rights as non-citizens and how some of the refugee communities manage to circumvent them and, consequently, manage to gain access to economic and social rights.

Access to economic and social rights in the absence of ‘the right to have rights’ Some Eritrean refugee communities are able to enjoy access to diverse economic and social rights by subverting the policies of the consecutive governments in a number of ways. The government of Sudan has entered reservations concerning some of the rights enshrined in the 1951 UN Convention, such as freedom of movement and residence as stipulated in Article 26. Refugees are, therefore, required by law to live in spatially segregated government-designated sites (Government of Sudan 1974). Departure from such sites without authorization is punishable. However, in spite of this restriction, up to 50 per cent of the pre-independence Eritrean refugees have always lived outside reception centres, camps and settlements (Kibreab 1994, 2005a). Refugees are not allowed to live in urban centres (see Karadawi 1977, 1982, 1999; Kibreab 1996b, 1996c), but there are tens of thousands of Eritrean refugees living in towns and cities, such as Kassala, Port Sudan, New Halfa, Gedaref and Khartoum. These refugees are often subjected to round-ups, arbitrary detentions, extortion and harassment, but they have nevertheless always managed to stay in the towns and cities in defiance of policy. Refugees are not allowed to own immovable property (Government of Sudan 1974), but there are many who own houses in Kassala town, New Halfa and Port Sudan. Some of the houses are purchased through the refugees’ own savings and others through remittances transferred by relatives from the Gulf states, Europe, North America and Australia. Although the number of Eritrean refugees who own houses in Kassala town is unknown, during fieldwork I witnessed many families living in their own houses, and became acquainted with the open secret among the refugees and their

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neighbours that there are many refugees who own immovable property in these locations. Refugees are not allowed to obtain business licences outside the government-designated camps and settlement sites. However, there are thousands of refugees operating small shops, caf´es, restaurants, open stalls, transport enterprises and so on. For example, in the Souq (Kassala Market), Eritreans are over-represented. For example, in Souq Haikota, the Eritrean Bet Juk merchants are clearly dominant. Even the name Haikota refers to the small town in Gash Setit where the Bet Juk from Senhit lived prior to their flight to Sudan. However, they are indistinguishable from the local Sudanese. Refugees are not allowed to be naturalized. They are received as temporary guests regardless of the number of years they stay in the country. However, there are many Eritrean refugees who have managed to acquire Sudanese nationality (jinsia) through different means. Many of them have also been able to acquire an abu taka (residence permit) that entitles them to live in different parts of the country, including in prohibited areas such as the capital city, Khartoum. These documents are obtained through networks based on common religion and ethnicity. Payment of bribes also plays a key role. According to official policy, departure from reception centres, camps and settlements without travel permits issued by the modirs (camp or settlement managers) is a criminal act (Government of Sudan 1974). However, there are many refugees from the reception centres, camps and settlements who move freely around the country without tesrih (travel permits). According to Sudan’s policy, refugees have no right to join institutions of higher education unless their fees are paid by the UNHCR or other funding agencies. Yet, there are hundreds of young Eritreans who join and graduate from the various universities and colleges every year. Not only are these Muslims who are fluent in Arabic, but many of them are also members of the youth leagues of political organizations, such as the National Islamic Front (NIF) and the ruling National Congress Party. Since refugees are formally prohibited from staying in towns and cities, they are formally excluded from gaining access to hospitals unless they come as referral cases from the reception centres, camps or settlements. Every visitor, including nationals, is required to show their residence permit to visit a doctor or to receive treatment in government-owned clinics and hospitals. However, there are some members of the Eritrean refugee communities who are able to access the health care services, including hospitals in the towns and cities, on equal footing with nationals. Since the ability or inability to supplant the limitations or restrictions of rights imposed on the refugees by government policy is at the heart of the differential responses of the refugees to repatriation, it is important to identify and examine the learned and innate attributes, or lack of them, that enable some but not others to deflect the legal constraints preventing refugees from having economic and social rights.

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Access to rights for refugees is often a function of ethnicity, religion, language and way of life or culture. Although necessary, these attributes are not sufficient for determining the decision to stay or return. It is in the presence of the following facilitating conditions that they influence the decision of the refugees to return or to stay: (i) favourable structural conditions; (ii) livelihood security; (iii) hostility between the governments of Eritrea and Sudan; (iv) duration of exile; (v) affiliation to opposition groups; and (vi) exposure to the ideology of political Islam. Each of these is discussed in the following.

Common ethnicity, religion, language and way of life Although Sudan does not formally subscribe to the policy of naturalization of refugees, many of the Eritrean refugees that have chosen to stay in the country after Eritrea’s independence, especially those in the border towns, such as Kassala, New Halfa, Karora, Port Sudan, Tokar and so on, have been able to regularize their stay either by acquiring abu taka or jinsia. The overwhelming majority of those who have been able to acquire these are those who share common language, religion, ethnicity and way of life with the local population, or at least with a section of it. In the border towns, such as Kassala where the second largest ethnic group is the Beni Amer, the Eritrean refugees who originate from this ethnic group and others, such as the Muslim Blin and Bet Juk, have been able to regularize their stay by utilizing their ethnic, religious and cultural ties. During fieldwork in Souq Haikota (Kassala town) in January 1995, where most exchanges of goods and services among refugees who receive rations at Wad Sherifey refugee camp take place, I asked a refugee merchant whether he was planning to ‘go home’ in response to the elimination of the flightinducing factors. He said, ‘I am at home.’ Several respondents from the Nara, Saho and Tigrinya ethnic groups who had stayed in Kassala town for the same length of time as the respondent, on the other hand, did not consider themselves to be at home in Kassala town. This is because they did not share common language and ethnicity with the local population. However, with the exception of a few respondents, such as the merchant in Souq Haikota, when asked whether they ever intended to return to Eritrea, the overwhelming majority did not hesitate to say ‘yes’. When asked ‘when will that happen?’ they all said, ‘when there is a democratic government in place’. It is very difficult to determine the extent to which such respondents are regurgitating the slogans of the political organizations with which they sympathize. However, one thing seems to be certain: many of the refugees in this category do not seem to have the need for another home at least in the short term. They have already found one across the border thanks to their connections with some sections of the border communities, as well as with the power brokers in the regional government and municipal authorities.

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These possibilities are further augmented by widespread corruption in the police force, as well as in the civil service. However, not all Eritrean refugees can successfully circumvent the formal constraints that are imposed on them by official government policy. The case study shows that whether refugees are able to supplant or circumvent host government policies and reception/settlement strategies is dependent on particular traits that enable refugees to melt into the host societies, rendering the efforts of the authorities concerned to maintain national identity boundaries inoperative or unenforceable. The main attributes that enable the refugees to escape from the tyranny of being ‘othered’ include physical appearance, language, religion, ethnicity, culture and political ideology. When the Eritrean–Sudanese border was established at the end of the nineteenth century, three-quarters of the Beni Amer lived in Eritrea. Only a quarter of the total number of the Beni Amer was in Sudan (Paul 1950). However, during the 30-year war, many of the Eritrean Beni Amer fled to Sudan and there are probably now more living in the latter than in the former. When the colonial boundaries were drawn, there were fewer Habab living in Sudan than in Eritrea. When war broke out and the Ethiopian government adopted a scorched earth policy to pacify the Eritrean countryside, many of the Habab fled the border areas and joined members of their ethnic group in Karora, Tokar and Port Sudan. Over time, they have become indistinguishable from their hosts. The same is true of the Eritrean Rashaida. A considerable proportion of the ‘Eritrean’ Habab and Beni Amer in Kassala town and Port Sudan and in the other smaller towns and villages have stayed on. Other groups that have not returned include members of the Muslim Blin and the Bet Juk. These two ethnic groups were historical allies of the Beni Amer during the 30-year war and after. They share the same religion with them and speak their language – Tigre – fluently. Their physical appearance, dress and culture are indistinguishable. It is interesting to note that over time, the Muslim Blin have dissociated themselves from their brethren, the Christian Blin, and have become much closer to the Beni Amer and Bet Juk. Although many of the Eritrean Maria have returned to Eritrea, the remaining can easily pass as Sudanese by assuming the identity of the small group of Sudanese Maria residing outside Kassala town – Hillet Maria. Those who do not share such common traits with the host population can be singled out, although some Eritrean refugees who lack these attributes assume fictive identities to mislead the authorities into believing that they are members of the local population. However, the majority of the older Tigrinya-speaking refugees are, for example, easily distinguishable from the crowd. The same is true of some members of the Christian Blin, Kunama and to some extent the Muslim Saho and Nara-speaking Eritrean refugees. This should not be construed to imply, however, that no Beni Amer, Muslim Blin and Bet Juk refugees have returned to Eritrea. Although the data in Tables 6.1 and 6.2 show that the majority of those who returned

128

Table 6.1 Ethnic distribution of self-returned refugees by heads of families and Awraja (district), 1989–1995 Area of return A/Guzay Asmara Barka Denkel G/Setit Hamasen Sahel Semhar Senhit Seraye Total Per cent

Afar 0 18 1 108 9 1 1 36 4 1 179 0.4

Blin

Hidareb

4 0 98 4 98 946 2 0 219 809 5 3 5 48 18 1 2,399 27 2 0 2, 850 1, 838 5.8 3.7

Kunama 1 6 27 0 383 0 0 0 8 0 425 0.9

Nara 1 10 32 0 2,202 0 2 1 45 1 2,294 4.7

Rashaida

Saho

Tigre

Tigrinya

1 1 1 0 0 0 385 47 0 0 435 0.9

161 475 16 18 448 18 1 669 38 36 1,880 3.8

67 577 4,038 12 3,765 87 6,779 1,685 2,654 20 19,684 40.1

595 12,206 599 760 2,052 854 15 203 892 1,015 19,191 39.1

Others 2 35 6 131 2 114 18 7 1 316 0.64

Total 832 13,430 5,764 900 10,018 970 7,350 2,678 6,074 1,075 49,091 100.04

Source: ‘Synoptic Report on Returnees (Refugees) Information 1989–1995’. Eritrean Relief and Refugee Commission, Data and Statistics Department, Asmara, 1996.2

Table 6.2 Ethnic distribution of PROFERI returnee family heads by Awraja (district), 1989–1995 Regions A/Guzay Asmara Barka Denkel G/Setit Hamasen Sahel Semhar Senhit Seraye Total Per cent

Afar

Blin

Hidareb

Kunama

Nara

Rashaida

0 0 0 0 1 0 0 0 0 0 1 0.016

0 0 14 0 84 0 0 0 17 0 115 1.8

0 0 30 0 113 0 0 0 0 0 143 2.2

0 0 1 0 38 0 0 0 8 0 39 0.61

0 0 3 0 1,538 0 0 0 1 0 1, 542 24.1

0 0 0 0 0 0 0 0 0 0 0 0

Saho

Tigre

0 0 0 1 1 715 0 0 1,196 1,160 0 1 0 230 0 3 23 65 0 0 1.220 2, 176 19.1 34.1

Tigrinya

Others

1 16 84 0 974 3 0 0 68 2 1, 148 18.0

0 0 0 3 0 0 0 0 0 3 0.047

Total 1 17 848 0 5,107 4 230 3 174 2 6, 386 100.0

Source: ‘Synoptic Report on Returnees (Refugees) Information 1989–1995’. Eritrean Relief and Refugee Commission, Data and Statistics Department, Asmara, 1996.

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are Christian highlanders, Christian Blin and Muslim Saho, Nara and Maria, it is incorrect to divide those who returned and who stayed simply along religious, ethnic, linguistic and cultural lines. The picture that emerges from the data in Tables 6.1 and 6.2 is far more complicated. Although those preindependence refugees who stayed in Sudan are in most cases people who share common ethnicity, religion, language and culture with the host population, it is not only Eritreans who lacked such attributes that returned to Eritrea. The data in Table 6.1 show that the returnees comprised all ethnic and religious groups. Among the self-returned refugees, 40 per cent were Tigre. Not only did this group speak the same language as the dominant ethnic groups in the Red Sea and eastern regions of Sudan, but they were also Muslims who could easily pass as Sudanese. The Hidareb, Nara and Saho returnees were also all Muslims. The corresponding figures for the PROFERI returnees are similar (see Table 6.2). The Ad Ibrahim, who are Beni Amer Muslims, were the first victims of Ethiopia’s scorched earth policy of pacification and, as a result, were the first to leave Eritrea in February–March 1967 to seek protection in Sudan (Kibreab 1987). When Eritrea became independent, they were also among the first to return home. There are also thousands of Beni Amer refugees who have returned and are now settled in Tessenei, Telata Asher, Ali Gidir, Goluj, Fanco, Tebeldia and Alebu in Gash-Setit and in Tekreret and Sheglet (Ad Ibrahim) in Barka (Kibreab 2002, 2005b; Kibreab et al. 2001). However, even though the returnees represented a cross-section of the Eritrean refugees in Sudan, it is also true that the large majority of the preindependence refugees who have stayed in Sudan are from the Habab, Beni Amer, Muslim Blin and Bet Juk. This is not only true in Port Sudan and Kassala town and their vicinities, but a study commissioned by UNHCR in 2002, for example, found that over 70 per cent of the Eritrean refugees in the camps and settlements were from the Beni Amer tribes (Bayoumi et al. 2002).

Favourable structural conditions and livelihood security Although both Sudan and Eritrea have been affected by protracted and devastating wars, there are greater economic opportunities in Sudan than in Eritrea. This is not only because Sudan is a land-abundant country, but it also has perennial rivers – the two Niles, the Atbara and Tokar – which have enabled the country to establish large-scale irrigation schemes. The latter provide seasonal employment opportunities to many Eritrean refugees in the eastern and central regions. A considerable proportion of the Eritrean refugees who have remained in the country, especially some families among the Beni Amer in Salmin, El-Hawata, Mufaza and Umbrush refugee settlements, have a large number of livestock (Kibreab 1996b), and for these groups of refugees, home is where the grass is greener.

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There are also greater opportunities for self-employment in Sudan than in Eritrea. In Eritrea, the process of post-war recovery has been substantially hampered by the border war and the present state of ‘no-war-no-peace’. Sudan has larger labour and commodity markets and therefore greater opportunities for employment and self-employment, especially for those who have access to economic rights and are able to compete on equal footing with nationals. Some of the poor refugees who are able to access the Sudanese labour and commodity markets are reluctant to abandon the little they have in anticipation of an uncertain future. Since livelihood concerns are the single most important issue preoccupying Eritrean refugees in Sudan, especially for those who live on the margins of subsistence (Kibreab 1996b), the favourable structural conditions in Sudan are critical factors.

Duration of exile, return and rights Although this may vary from one situation to another, all other things being equal, the desire to return is a decreasing function of the duration of exile. In the presence of an auspicious policy environment and structural conditions, the longer refugees stay in a given country of asylum, the less they are inclined to respond to political changes that occur in their countries of origin (Rogge 1992, 1994). This is, however, mediated by other factors. For example, for the Eritrean refugees who lack the attributes that create linkages with the host population, the length of time spent in exile has not substantially reduced their propensity to return or increased their access to economic and social rights. By the same token, the length of time alone has not augmented their ability or readiness to develop roots in Sudan. As the data in Table 6.3 show, a substantial proportion of the returnees had lived in Sudan for several decades, some of them for nearly sixty years. Although the families that fled Eritrea after 1980 are slightly over-represented in the number of returnees, in Table 6.3 Distribution of returnee family heads by year of exile Year of exile Before 1934 1935–1960 1961–1970 1971–1979 1980–1989 1990 and after Total

Male

Female

Total

242 571 3,922 8,985 23,445 3,330 40,495

212 284 1,952 6,239 13,342 2,303 24,332

454 855 5,874 15,224 36,787 5,633 64,827

Source: Eritrean Relief and Refugee Commission (ERREC) Report on Eritrean Returnees, 1997.3

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the absence of ethnic, language, religious and cultural ties that are a prerequisite for the enjoyment of access to economic and social rights, length of time alone does not seem to play a decisive role in the decision concerning repatriation (see Table 6.3). This is consistent with what might be expected, because if refugees experience discrimination which reinforces their sense of ‘otherness’ or alienation on a daily basis, either because of their inability to communicate in Arabic or due to their distinct identity, they cannot feel part of the host society regardless of the number of years they spend in exile.4 Hence, most of the refugees that did not share common traits with the host population returned home to recoup their economic and social rights, which they were unable to enjoy in the country of asylum. Affiliation to opposition groups For those refugees who have been able to enjoy access to economic and social rights in Sudan, political affiliation is a further major factor that influences their decision regarding repatriation. The Eritrean Liberation Front (ELF), the first nationalist organization that initiated the armed struggle in 1961, was based in the western lowlands of Eritrea – the Barka – where the large majority of the Muslim refugees come from. The overwhelming majority of those who remain in Sudan are originally from the Barka region and are strongly connected to the ELF. The latter was ejected from Eritrea by the present ruling party, the EPLF, in mid-1981. Since its ejection, the ELF has experienced identity-based factional fragmentation based on religion, ethnicity and region. In post-independence Eritrea, all political organizations except the EPLF are prohibited. The failure of the EPLF to share power with the ELF and the other opposition groups has discouraged some of the refugees from returning. However, even though this argument is invoked by most of those who have chosen to stay in Sudan, in reality such a consideration is only relevant to the decisions of the few politically motivated individuals. At the same time, many of the ELF’s staunch supporters, such as the Saho and many Tigre and Tigrinya-speaking refugees, have returned to Eritrea notwithstanding the ELF’s exclusion from power. The ELF’s exclusion is often invoked by those who have been able to regularize their status in Sudan. It is difficult, therefore, to determine the extent to which the exclusion of the ELF and the other political organizations has substantially affected the decision of the majority of those who have decided to stay. While the overwhelming majority of those who have not returned to Eritrea are members and sympathizers of the political organizations that are excluded from power, this may not suggest that the inclusion of these organizations in the future, although highly desirable, would actually lead to a large-scale return movement. The influence of political affiliation can also be observed in terms of access to economic and social rights. Since 1999, the governments of Sudan and Ethiopia have been working closely with the Eritrean political organizations,

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including the ELF, to bring about regime change in Asmara. The close alliance has greatly benefited the refugees that are affiliated to the opposition groups. The Sudanese authorities treat refugees affiliated or sympathetic to the ELF and its various factions favourably, for example by turning a blind eye to their presence and to their acquisition of documents. The government’s positive predisposition towards these refugees is therefore one of the incentives encouraging them to remain in Sudan. Hostility between the two governments and economic and social rights Although Sudan has a relatively generous refugee policy, as seen earlier, the refugees in the country are received as temporary guests and are expected to eventually return to their countries of origin (see Kibreab 1989, 2005a), as is also the case for the other refugee situations discussed in this volume. This begs the question: why has the government not enforced this policy after the conditions that forced the Eritrean refugees to flee were eliminated? Although the relationship between the two countries appeared to be amicable, beneath the surface the Eritrean government did not trust the National Islamic Front (NIF)-backed government in Sudan from the outset. As one observer noted, ‘The simmering conflict between the two countries dates back to December 1993, when Eritrea’s President Isaias Afwerki alleged that Khartoum was training and funding Eritrean Islamist groups, foremost among them Jihad Eritrea, to destabilise the newly independent country’ (EIU 1995a). Other observers have confirmed this (Adlan 2005). Armed incursions from Sudanese territory by Eritrean Islamist groups continued unabated throughout 1994, and available sources suggest that about forty frontier incidents were confirmed during that short period (EIU 1995b). Different attempts to reconcile the two governments, including by the Organization of African Unity, produced no results. In 1994, the Eritrean government severed diplomatic relations with the government of Sudan. In mid-1995 Eritrea invited the fledgling Sudanese opposition groups to Asmara to hold a conference that gradually led to the formation of the Eritrean National Alliance (NDA). The mainstay of the Eritrean Islamic Jihad Movement (EIJM) has been some members of the refugee communities. Its Mujahideen were recruited from the most impoverished and deprived refugee families. When its complaints produced no results, the Eritrean government severed diplomatic relations with Sudan in December 1994 and openly declared that it would provide any form of support within its means to Sudanese opposition groups in order to effect regime change in Khartoum. Since then, both governments have been using each other’s citizens to undermine each other.5 The reason the government of Sudan has not enforced its policy after the cessation of the conditions that prompted the Eritrean refugees’ flight is, therefore, that it uses the refugees as a bargaining chip and as an instrument

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of its foreign policy interests. The presence of a common enemy – namely, the Eritrean government – has benefited the refugees who do not want to return. Exposure to political Islam Although Eritreans are 50 per cent Christians and 50 per cent Muslims and are deeply religious, not only do the followers of the two religions coexist harmoniously but also an iron wall separates religion from politics. Eritreans are very tolerant of each other’s religion. That is why there has never been a generalized identity-based conflict throughout the country’s history (Kibreab 2008; Tesfai n.d.). However, with the rise of political Islam worldwide, some members of the refugee communities have become radicalized. This process of radicalization was reinforced on the one hand by the ascendance to power of the Islamic National Front (INF) and its cadres in the military junta after the 1989 military coup, and on the other by the emergence and consolidation of the EIJM in eastern Sudan. In an attempt to win the hearts and minds of the refugees, the Eritrean Islamist organizations presented the government in Asmara not only as being an enemy of Islam, but also as one which does not recognize Eritrean Muslims’ rights (Salman 1998; see also Adlan 2005; Gunaratna 2002). The Islamist organizations vowed to replace it by an Islamic state (Medhanie 1992: 89). In the 1990s, the INF tried to use these radical Islamic organizations to spread its version of Islam to the neighbouring countries (Cliffe 1999), and Eritrea, as a fledgling state, was seen as representing the weakest link which could easily be replaced by an Islamic or a pro-Islamic state. Although this radical perspective did not appeal to the large majority of the refugees, there were some sections that embraced it and therefore ruled out repatriation as long as the alleged ‘Christian government’ was in power. Not only were some members of the Eritrean refugees viewed as key instruments in this Islamic strategy, but a minority of them embraced the new radical ideology. It is interesting to note that this process of radicalization was accompanied by the host government’s relaxation of restrictions on freedom of movement and residence, employment and self-employment. The reason for this was that such an approach served the strategic interest of the Sudanese government which was locked in a zero-sum struggle against the Eritrean government. It is also important to note that after the June 1989 military coup that was engineered by the INF and which ousted the democratically elected Sadiq el-Mahdi’s government, an attempt was made to Islamicize every aspect of Sudanese society, and this was embraced by some sections of the Eritrean Muslim refugees in the country. The effect of the Islamicization of Sudanese politics was twofold. On the one hand, the meaning of the nation-state as exclusively belonging to Sudanese nationals underwent considerable change. Sudan was said to be the the umma (home) of all Muslims (see Sudan Interior

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Minister’s statement in Gunaratna 2002) and the Eritrean Muslim refugees who embraced the Sudanese Islamists’ notion of Islam were no longer treated as the ‘other’. Therefore no pressure was brought to bear on them to return to Eritrea. The effect of this on some of the Muslim refugees was dramatic. Their conception of the nation-state also underwent considerable change. In 1995, when the conflict between the governments of Eritrea and Sudan was at its peak and the refugees scrambled for leverages, one elder told me, ‘I feel at home wherever there are Muslims – Eritreans or Sudanese.’ For those who embraced political Islam, return to Eritrea was less important than fighting for the global umma – the nation of Islam – which some of the refugees interviewed by the author equated with the Islamic Sudanese state.

Conclusion Notwithstanding the fact that the conditions that prompted the preindependence refugees to flee Eritrea are indisputably eliminated, a considerable number have stayed in Sudan. The large majority of those who failed to return have common ethnicity, religion, language and way of life with the nationals in Kassala and Port Sudan towns and their environs. As a result, they have been able to make use of informal social connection and networks to bypass the formal government policies which are designed to keep refugees in spatially segregated sites regardless of the number of years they have been staying in the country. As we have seen, Sudan’s refugee policies are intended to prevent rather than facilitate integration of refugees. Those who share common traits of ethnicity, religion, language and way of life with a large section of the local population have nevertheless been able to enjoy rights formally reserved for nationals. These particular refugees’ access to social and economic rights has been greatly facilitated by the unfriendly relations between the governments of Eritrea and Sudan. The animosity between the two governments, and the sympathy of many amongst this particular group of refugees with the ideology of political Islam, has given them a considerable amount of leverage. This suggests that in countries where governments are for different reasons unable to enforce their own policies, access to social and economic rights are not primarily defined by formal policies but rather by myriad intricate, informal rules and enforcement mechanisms which governments are either unaware of or turn a blind eye to because it may serve their strategic or foreign policy interests. Access to these rights, in turn, plays an important role in influencing refugees’ decision-making and choices. Another factor which has facilitated the refugees’ informal access to economic rights is that in comparison to Eritrea, Sudan has a greater endowment of natural resources, and for the large majority of the refugees who are exceedingly preoccupied with livelihood concerns, this plays a key role in their decision concerning repatriation.

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This chapter has demonstrated how even informal access to rights in host societies improves the livelihood security and the general well-being of the displaced, and plays a major role in decisions concerning return. As the authors in this volume argue, displaced people themselves engage in a range of strategies to access rights and to expand their individual freedoms. Rights, therefore, are an important vehicle for the displaced to gain protection, seek justice and widen their life choices. Notes 1. Jaber Suleiman, this volume, discusses the importance of the right to return for the Palestinian refugees in Lebanon. Even though this right is undeniable, whether refugees, including Palestinians, eventually decide to return to their country of origin is another matter. 2. The author is in possession of these documents which are in the public domain. 3. The author is in possession of these documents. 4. The lack of cultural connections and the inability to enjoy rights in host societies is also one of the underlying causes of refugees seeking resettlement to Western countries. See the discussions of the situation of refugees in Egypt and Lebanon in chapters by Grabska and Trad and Kagan, respectively. 5. Although it remains to be seen how long this will last, the relations between the two governments have improved recently and the borders between the two countries have been reopened since October 2006.

References Adlan, I. 2005, ‘Re: Highlights of the INF Role in the Greater Horn of Africa’, 17 June, http://www.sudaneseonline.com/cgi-bin/esdb/2bb.cgi?seg=msg&board=12&msg= 1118992832&rn=13 (accessed 19 March 2006). Attiya, H. 1988, ‘Interview’, Refugees, 52, April. Bayoumi, A., M. Adhan, B. El Sayeh and I. A. Bayoumi 2002, ‘Repatriation and Socioeconomic Conditions of Eritrean Refugees in Eastern Sudan’, Assignment Report to UNHCR, Khartoum, Sudan. Cliffe, L. 1999, ‘Regional Dimensions of Conflict in the Horn of Africa’, Third World Quarterly 20(1): 89–111. Economic Intelligence Unit (EIU) 1995a, ‘Country Report, Sudan’, 1st quarter 1995. Economic Intelligence Unit (EIU) 1995b, ‘Country Report, Ethiopia, Eritrea, Somalia, Djibouti’, 1st quarter 1995. Eritrean Relief and Refugee Commission (ERREC) 1996, ‘Synoptic Report on Returnees (Refugees) Information 1989–1995. Report on Eritrean Returnees Data Information’, Data and Statistics Department, Asmara: ERREC. Eritrean Relief and Refugee Commission (ERREC) 1997, ‘Data and Statistics Information, 1997. Report on Eritrean Returnees Data Information’, Data and Statistics Unit, Asmara: ERREC. Government of Sudan 1974, ‘Regulation of Asylum Act’ (1974 Act No. 45, Sudan Gazette No. 1162 Legis. Supp. 183), Khartoum, Sudan. Gunaratna, R. 2002, Inside al Qaeda: Global Network of Terror, London: Hurst and Company. Kabeer, N. (ed.) 2005, Inclusive Citizenship: Meanings and Expressions, London: Zed Books.

Access to Economic and Social Rights 137 Karadawi, A. 1977, ‘Political Refugees: a Case Study from the Sudan’, University of Reading, unpublished MPhil thesis. Karadawi, A. 1982, ‘Urban Refugees’, COR, Khartoum (unpublished). Karadawi, A. 1999, Refugee Policy in Sudan, New York and Oxford: Berghahn Books. Kibreab, G. 1987, Refugees and Development: the Case of Eritrean Refugees, Trenton, NJ: Red Sea Press. Kibreab, G. 1989, ‘Local Settlements in Africa: a Misconceived Option?’ Journal of Refugee Studies 2(4): 468–90. Kibreab, G. 1990, From Subsistence to Wage Labour: Refugee Settlements in Eastern and Central Sudan, Trenton, NJ: Red Sea Press. Kibreab, G. 1994, ‘The Problem of Refugees in the Sudan: Some Unresolved Issues’, in H. Adelman and J. Sorenson (eds), African Refugees: Development Aid and Repatriation, Boulder: Westview Press, pp. 43–88. Kibreab, G. 1996a, Ready and Willing . . . But Still Waiting: Eritrean Refugees in Sudan and the Dilemmas of Return, Uppsala: Life and Peace Institute. Kibreab, G. 1996b, People on the Edge in the Horn: Displacement, Land Use and the Environment, Oxford: James Currey Publishers. Kibreab, G. 1996c, ‘Eritrean and Ethiopian Refugees in Khartoum: What the Eye Refuses to See’, African Studies Review 39(3): 131–78. Kibreab, G. 1999a, ‘The Consequences of Non-participatory Planning: Lessons from a Livestock Provision Project to Returnees in Eritrea’, Journal of Refugee Studies 12(2): 135–60. Kibreab, G. 1999b, ‘Revisiting the Debate on People, Place, Identity and Displacement’, Journal of Refugee Studies 12(4) 384–410. Kibreab, G. 2000, ‘Resistance, Displacement and Identity: the Case of Eritrean Refugees in Sudan’, Canadian Journal of African Studies 34(2): 249–96. Kibreab, G. with S. B. Nicole and Z. Yemane 2001, Returning Thirty: Water, Livelihoods and Returnees in Gash Barka, Eritrea, London: Overseas Development Institute. Kibreab, G. 2002, ‘When Refugees Come Home: the Relationship between Stayees and Returnees in Post-conflict Eritrea’, Journal of Contemporary African Studies 20(1): 53–80. Kibreab, G. 2003a, ‘Citizenship Rights and Repatriation of Refugees’, International Migration Review 37(1): 24–73. Kibreab, G. 2003b, ‘Displaced Communities and Reconstruction of Livelihoods in Eritrea’, in T. Addison (ed.), From Conflict to Recovery in Africa, study prepared by the World Institute of Development Economics Research of United Nations University, Oxford: Oxford University Press, pp. 73–86. Kibreab, G. 2004, ‘Refugeehood, Loss and Social Change: Eritrean Refugees and Returnees’, in P. Essed, G. Frerks and J. Schrijvers (eds), Refugees and Transformations of Societies: Agency, Policies, Ethics and Politics, Oxford: Berghahn Books, pp. 19–30. Kibreab, G. 2005a, ‘Urban Eritrean Refugees in Sudan: Yearning for Home or the Diaspora?’ Eritrean Studies Review 4(2): 115–41. Kibreab, G. 2005b, ‘Belonging, Displacement, and Repatriation of Refugees: Reflections on the Experiences of Eritrean Returnees’, in I. Ohta and Y. D. Gebre (eds), Displacement Risks in Africa: Refugees, Resettlers and Their Hosts, Kyoto: Kyoto University Press and Transpacific Press, pp. 116–61. Kibreab, G. 2006, ‘National Service/Warsai-Yikaalo Campaign and the Problem of Forced Migration in Post-independence Eritrea’, paper presented at the Association of African Studies of the United Kingdom, School of Oriental and African Studies, 12–14 September.

138 Forced Displacement Kibreab, G. 2008, Critical Reflections on the Eritrean War of Independence: Social Captial, Associational Life, Ethnicity Religion and Sowing Seeds of Dictatorship, Trenton, NJ: Red Sea Press. Medhanie, T. 1992, Eritrea and Its Neighbours in the ‘New World Order’: Geopolitics, Democracy and Islamic Fundamentalism, Munster, Hamburg: Bremen Afrika Studien. Paul, A. 1950, ‘Notes on the Beni Amer’, Sudan Notes and Records 31(2). Rogge, J. 1992, ‘Return to Cambodia: the Significance and Implication of Past, Present and Future Spontaneous Repatriations’, in F. C. Cuny, B. N. Stein and P. Reed (eds), Repatriation During Conflict in Africa and Asia, Dallas: Center for the Study of Societies in Crisis, pp. 107–241. Rogge, J. 1994, ‘Repatriation of Refugees: a Not so Simple ‘‘Optimum’’ Solution’, in T. Morsink and H. Allen (eds), When Refugees Go Home, London: James Currey, pp. 14–49. Salman, Abu Bara’ Hassa 1998, the Deputy Amir of the Eritrean Islamic Jihad Movement in Interview with Nida’ul Islam Magazine, February–March, http://www.fas.org/ irp/world/para/docs/eritrea.htm (accessed 7 July 2004). Tesfai, A. n.d., ‘IGAD Capacity Assessment Study CPMR in Eritrea’, Asmara, typescript. UNHCR 2002a, ‘Eritrean Refugees Told to Register Before End of Year in Effort to Speed Returns’, Asmara, 27 March, http://www.unhcr.org/cgi-bin/te . . . / opendoc.htm?tbl=NEWS&page=home&id=3caledld (accessed 30 August 2006). UNHCR 2002b, ‘UNHCR Declares Cessation of Refugee Status for Eritreans’, Press release, 8 May, http://www.unhcr.org/news/NEWS/3cd9111e4.html UNHCR 2005, Table 5, available at http://www.unhcr.org/statistics/STATISTICS/ 4486ceb12.pdf (accessed 20 March 2007)

7 Rights and Decisions to Return: Internally Displaced Persons in Post-war Sudan Munzoul Assal

Introduction1 The previous chapter by Kibreab focused on the situation of Eritrean refugees in the Sudan. In this chapter I examine the question of internally displaced persons (IDPs) in Sudan, which is now a concern of many actors (the Government of National Unity, donors, UN agencies and NGOs and civil society organizations) who are involved in making the post-war arrangements for the country. With more than five million internally displaced persons, Sudan is one of the highest producers of IDPs in the world. The spells of drought during the early 1980s, the civil war in the south (1983–2005) and the ongoing crisis in Darfur are the main reasons for displacement. Although incidents of displacement in Sudan go back in history and have received extensive academic attention (Abu Salim 1979: 44–6; Galal El-Din 1973; McLoughlin 1970: 113), the question of the rights of internally displaced persons has been largely ignored at the levels of both research and policy. Thus far, national policy has merely consisted of ad hoc ministerial decrees tending to respond to emergencies in the chain of events related to displacement (Assal 2006a). The few policies that have been adopted centre around meeting the needs of IDPs (though not adequately), a goal that is shared, to varying degrees, by the state, international agencies and NGOs. Although there has been a substantial body of research on the situation of IDPs in Sudan, most of it does not probe rights directly and does not make inroads into policy processes in ways that enable the systematic institutionalization and realization of rights. While the rights of refugees are much more grounded in international and often national law, as discussed in the introduction to this volume as well as several of the case studies (see Grabska, Trad and Kagan, Suleiman, Kibreab, Harrell-Bond) the rights of internally displaced persons are much less well defined. In addition, the focus of responsibility for fulfilling these rights and accountability for the failure to implement rights of IDPs lies with national 139

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governments, as is also the case for the development-induced oustees (see Mehta, Yong, this volume). The role of the state is tricky because it is both the violator of rights and the arbiter of justice. This chapter addresses the question of the rights of IDPs in Sudan, with a focus on a group of IDPs of diverse ethnic backgrounds in Al Salam camp in Khartoum. The discussion centres around three rights: the right to education, the right to livelihood, and the right to return/integration. It specifically endeavours to find out how and in what ways IDPs are denied access to these rights in Sudan. The chapter represents a continuation of my earlier work on IDPs (Assal 2002, 2004, 2006a). Following this short introduction, I shall discuss the context in Sudan, focusing on its complexities and recent developments and the implications of these for the question of rights. In the next section, state policies and the role of NGOs will be addressed. The third section will focus on the need to adopt a rights-based approach, with accompanying issues of responsibility and accountability, in the search for a solution for IDPs. The rights of IDPs will be discussed in the context of IDPs’ ideas on return and integration. The main argument that underlines the chapter is that the IDPs’ rights were not only violated when they were displaced, but these people have also lacked the opportunity to exercise rights in host areas. For political reasons as well as discriminatory policies, successive governments in Sudan have neglected the basic rights of IDPs (as is the case for oustees in the context of dam-based displacement in India and Mayalsia; see Mehta and Yong in this volume). Problems relating to the specific Sudanese context and the lack of international consensus combine to obstruct the realization of economic, social and cultural rights, as well as civil and political rights of IDPs in Khartoum. Evidence from the Al Salam camp reveals that the rights of IDPs are frequently violated, including the right to education by the imposition of fees.

Methodology My engagement with the question of internally displaced persons goes back to 1995 when I undertook a study on the impact of displacement on gender roles and relations. The findings of that study were published in 2002 (Assal 2002). Since then, my engagement with forced migration continued, focusing on refugees and internally displaced persons. I am a Sudanese anthropologist, living and working in Khartoum. While I have not been displaced during the war in Sudan, my long engagement with forced migration brought to my attention questions which were not initially readily visible. I cannot claim to have a comprehensive knowledge about the life-courses of IDPs, and I cannot claim to be completely neutral. The hardships and problems these people go through have affected the way I look at their rights in the Sudanese context: a context marred by conflict and contradictions. It is through a rights-based approach, the cornerstone of this volume, that I

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address the problems and future prospects of IDPs in Khartoum. It is hoped that policy-makers and activists take note of the findings of this chapter, and the wider reflections of this book, when they design policies that affect IDPs’ lives. The research for this chapter was conducted by myself and a research assistant in Al Salam camp during December 2005 and January 2006. Al Salam camp was chosen because it is the biggest IDP camp in Khartoum. Furthermore, it is undergoing a process of reorganization intended to incorporate IDPs’ views on the government-led integration initiative, which began in 2003.2 Data were gathered through qualitative interviews, group discussions and direct observation. Interviews were conducted with members of communitybased organizations, traditional leaders, government officials responsible for IDP issues and with members of popular committees. Group discussions with women and men provided insights about people’s attitudes to rights of return/integration, and education. Questions directed towards local community-based organizations centred on their activities, members, funding sources, approaches to advocating the rights of IDPs and links to international NGOs and authorities.

The Sudan context Sudan represents a case of protracted conflict in Africa. With a total population of 33.4 million and occupying 8 per cent of the African continent, the country has not experienced genuine stability since its independence in 1956. The civil wars in Sudan over resources (oil and water), political dominance and power have segmented Sudan since independence. Over and above the human cost, the war has severely damaged livelihood structures and the nation’s infrastructure. Finally, the Government of Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A) concluded a peace agreement in January 2005. The Comprehensive Peace Agreement (CPA) provides for a six-year interim period, during which South Sudan will enjoy autonomous governance, followed by a referendum in 2011 to enable the people of South Sudan to decide whether to secede. The CPA guarantees the following human rights: the right to life, liberty and security of persons, the abolition of slavery, the abolition of torture, fair trials, freedom of thought, conscience, religion and expression, freedom of assembly, the right to vote, equality before the law, freedom from discrimination, and gender equality. In addition, the provisions on wealth sharing address the need to allocate significant reconstruction resources to all states, particularly the war-affected areas. In light of the fact that the Sudanese state has a long history of violating civil and political rights with impunity, the peace agreement was indeed a major development. However, implementation of the agreement is experiencing difficulties. First, there is

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a lack of harmony in the Government of National Unity (GNU) that mainly represents the National Congress and the SPLM/A. Disagreements over the formation of commissions, distribution of oil revenues, and the three contested areas (Abyei, the Nuba Mountains and the Blue Nile) undermine the implementation of the agreement. Second, the questions of Darfur and eastern Sudan also pose threats to the sustainability of the peace process in the south.3 Third, although pressure from the international community could be positive, too much of it may be detrimental. The political bickering within the GNU is creating confusion about who is responsible for what and who is doing what, specifically with regard to rights. IDPs are caught in this confusion: are they the responsibility of the GNU or the Government of Southern Sudan (GoSS)? Alternatively, are they the responsibility of the international community? These questions will be addressed later in the chapter.

Putting a finger on the problem The long civil war in the south and the current crisis in Darfur produced millions of IDPs whose lives have been affected to varying degrees. As a result of forced displacement, there are severe inequalities in access to rights that are grounded in citizenship. The IDPs’ rights were not only violated when they were displaced, but these people have also lacked the opportunity to exercise rights in host areas. Displacement has challenged the relationship between the state and its citizens. Being an internally displaced person4 (through conflict or ‘development’) is not a legal status, and therefore IDPs may not have legal grounds for claiming rights additional to those shared with other citizens (Vincent 2000). At the same time, the UN Guiding Principles (GPs) explicitly acknowledge the fact that IDPs are more vulnerable than other citizens. This means that they have a right to special attention, and the GPs provide a kind of affirmative action for IDPs. Yet the GPs also emphasize that IDPs have the same rights and obligations as other citizens. Thus, despite good intentions, the GPs do not provide the IDPs with any additional rights that might address the conditions of their vulnerability.5 An additional shortcoming is that the GPs also confer responsibility for guaranteeing rights of IDPs on the state, which, in the case of Sudan, is the main perpetrator of displacement and violator of rights (see Muggah, this volume, for a detailed discussion of IDP protection regimes). Categorizing people as IDPs implies assigning them a temporary identity (see the discussion of labels and categories in the introduction to this volume). While the intention of such categorization is good in that, through it, people can be assisted, the label also becomes a social category and can be a liability (Brun 2003: 376). In Sudan, the fact that ‘IDP’ is supposed to denote a temporary category has resulted in reluctance on the part of the authorities to guarantee them social and economic rights. Despite the lengthy periods

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for which many IDPs have stayed in some of the camps in north Sudan (fifteen years in some cases), many camps did not receive extension of services. For example, Al Salam camp in Omdurman still has no access to water or electricity. For political reasons as well as due to discriminatory policies, successive governments in Sudan have neglected the basic rights of IDPs. Their reluctance to sanction legal, political, social and economic rights has led to conflicts over resources, in which identity issues become part of the problem (Assal 2006b). Stripped of their agency, IDPs are regarded as objects of charity. Commonly, IDPs have been referred to as naziheen in Sudan. The word naziheen (displaced) is a derogatory term that takes away the dignity and rights of those it labels. Often seeing them as a security threat, the government has tried to control IDPs through enforcing strict discriminatory policies against them. For example, in 1992, IDP settlements considered by the government to be illegal were bulldozed, and IDPs around Khartoum were forcibly evacuated to designated camps that lacked basic services. Many IDPs rejected the evacuation and returned to the areas from which they had been evicted. The art of labelling is directly related to the lack (or attainment) of rights (Grabska and Mehta, this volume). It is questionable whether the label naziheen is useful at all, at least for some segments of IDPs. Discussions with IDPs in Al Salam camp revealed that the term is not valued by all, particularly those who opt for integration where they currently live. Although useful for bureaucratic purposes, for those who were born and raised in Khartoum, imposing this identification badge on them is something they resent. In recent years, the government has shown a tendency to oppose the label naziheen. The authorities argue that IDPs are Sudanese citizens who have the right to live anywhere in the country (Banaga 2001). Yet there is little evidence (in terms of actual policy) that the government is serious about this. Thus the authorities’ opposition to the label naziheen appears to be no more than a politically correct gesture, or at most a way of abdicating responsibilities for IDPs. Without a label, it can be said that they have no more rights than other citizens, and yet they continue to be discriminated against. When the CPA was signed in January 2005, the question of durable solutions to displacement in Sudan came to the forefront. The government and the SPLM/A seemed interested in IDPs for different reasons. While the SPLM/A emphasized return of IDPs to their former areas, the National Congress Party has embarked (since 2003) on a process of integrating IDPs in Khartoum by providing them with legal residential plots. These contradictory policies have confused IDPs who are yet to decide whether to return or stay in Khartoum. The CPA stresses the right of IDPs to choose among three options: return, integration or relocation. However, the agreement does not elaborate on the mechanisms necessary for the reintegration of IDPs into areas of origin. Furthermore, despite the CPA, the government still considers IDPs around Khartoum as a threat. Following riots in August 2005, IDPs and

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other disadvantaged groups (migrants, informal sector employees, hawkers, etc.), who are labelled ‘criminals’, were held responsible for the rampage that overwhelmed Khartoum. As a result, IDP camps came under tight security surveillance and IDPs residing in unauthorized areas were relocated. The confusion of IDPs over whether to return or stay in Khartoum also relates to the behaviour of the international organizations (UN agencies and non-governmental organizations). Since the start of the peace process in 2002, NGOs have scaled down their interventions in IDP camps in Khartoum. Some NGOs left work in the camps to community-based organizations and cut down their support for education and other livelihood programmes. Furthermore, international NGOs put a strong emphasis on return over other alternatives, often neglecting the preferences of IDPs. Return is certainly one viable scenario for those IDPs who are willing to go home. However, since the peace agreement was signed, little has been done to prepare the areas to which the IDPs will return. Questions around access to land and property, education and health services, security and the existence of land mines still remain unanswered. Moreover, some areas in the south are still far from being safe for IDPs, as demonstrated by recent unrest in Upper Nile, Western Equatoria and Bahr el-Jebel. In February 2006, a group of returnees from Khartoum was attacked en route to their home areas in Abyei. Given this, many IDPs are likely to remain in Khartoum for some time. Elsewhere (Assal 2004), I have argued that the policies and programmes implemented in recent decades fall short of addressing the rights of IDPs. It is imperative that the different scenarios for the future of IDPs are worked out through a rights-based approach (see the introduction to this volume for further discussions of the rights-based approaches in forced migration). Adopting a rights-based approach requires looking beyond the obvious causes of displacement (civil wars and natural disasters). It also requires looking at how rights in the national constitution and international conventions are played out in local contexts (Assal 2006a; see also Mehta and Yong in this volume for the discussion of oustees and rights at the national level). Before proceeding to the empirical discussion, I will briefly look at the relevance of a rights-based approach for IDPs, as well as the practical and conceptual challenges which the adoption of this approach poses.

Necessity of and challenges to a rights-based approach To begin with, it is necessary to clarify what is meant by a rights-based approach. As used here, a rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed towards promoting and protecting human rights (Robinson 2000: 2; see also Introduction, this volume). It is essential that this approach integrates the principles of the international human rights system into policies and

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processes of development. A rights-based approach includes the following constituent elements: (1) linkage to rights; (2) accountability; (3) empowerment; (4) participation; and (5) non-discrimination and attention to vulnerable groups. The necessity to move from a needs-based to a rights-based approach in forced migration is gaining currency. As other chapters in this volume show, scholars of forced migration studies emphasize the importance of shifting the balance from settlement-based relief and welfare-oriented efforts towards more rights-based development, which could lead to treating individuals as responsible actors capable of making decisions about their own lives (Mehta and Gupte 2003: 31). Nonetheless, there are both conceptual and practical challenges facing a rights-based perspective. Conceptually, there is no single universally accepted rights-based approach (see Grabska, this volume, for the discussion of different perceptions of rights in case of refugees in Egypt). Practically, the absence of common norms, the problems inherent in international human rights law and the discrepancy between national and international interests contribute to the difficulty of implementing a rightsbased approach. Further, there are challenges to a rights-based approach specific to the Sudanese context, explained below. Following Mehta and Gupte (2003: 26), the rights of forced migrants can be grouped into two categories: negative and positive rights. The former category includes political and civil rights, while the latter includes social and economic rights. In the case of Sudan, there has been a wholesale violation of these rights, not only with regard to IDPs but also with regard to the general citizenry. The realization of positive rights is dependent on socio-economic differentiation and the distribution of life chances among the country’s inhabitants. Nonetheless, the lack of negative rights certainly affects the distribution of chances, meaning that the realization of negative rights ensures people’s entitlements and guarantees their basic human needs. Without civil and political rights, people in any given society cannot claim their social and economic entitlements. And since IDPs are considered a special group due to the loss of their original places of residence as a result of ongoing conflict, realizing their rights requires affirmative action. In Sudan, a rights-based approach has been absent for decades. One reason for this is that the normative standards or constituent elements of such an approach do not go well with totalitarian policies. Another reason is that by not adopting a rights-based approach, governments relegate responsibility for IDPs to the international community, which does not have the legal mechanisms to enforce rights, hence simply struggles to meet needs. Governments can, thereby, also avoid IDPs’ grievances. However, the introduction of policies that are rights-oriented in the CPA is one step towards a better future for IDPs: it allows scope, for example, for including the right of IDPs to choose whether to return or resettle. The problem is that the agreement does

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not clearly spell out mechanisms to implement rights-enhancing policies, and the national government still continues its discredited repressive policies that violate IDPs’ freedoms with impunity.6 In 1990, the government abandoned its relief policies, without putting any alternative in place. At that time, the authorities were experimenting with relocating IDPs to the so-called ‘productive’ areas in the country (mechanized agricultural schemes in eastern Sudan), where refugees from neighbouring countries are resettled (Kibreab 1990 and this volume). The government’s rationale behind this policy shift was to promote IDPs’ self-reliance, since the authorities believed that relief distribution breeds dependence and fatalism among the displaced. But pressure from the UN thwarted implementation of the policy. Quite often, the government marshals issues of sovereignty to block international interventions, particularly those relating to human rights (Assal 2006a). While the peace process provided opportunities for NGOs and civil society organizations to engage in lobbying and advocacy around the rights of IDPs (to education, livelihood and return/integration), their engagement is weakened by state blockages, lack of preparedness and the unpredictable policies of international organizations. As Robert Muggah shows in this volume in his discussion of the emerging IDP regime, the lack of a clear legal basis for IDPs’ rights also represents an impediment to engagement. IDPs are citizens, but they are also ‘IDPs’. In other words, they are a special category of citizens because their conditions are abnormal compared to those of their fellow compatriots. Moreover, the passing of the new ‘Voluntary Work Law’ in 2005 represents a step back in the government’s commitment to peace building, to the extent that the new law cripples civil society organizations and gives the Humanitarian Aid Commission (HAC) legal powers, including the power to impose fines and cancel the registration of NGOs.7 A possible consequence of this law, should it be practically enforced, is that it increases the vulnerability of IDPs by restricting funding for incipient IDP community-based organizations. A major challenge for the realization of rights at the present time is that there is not a clear policy in place to realize any of the options available for IDPs (integration, return or relocation), either by the government or by the international community. The efforts of national and international NGOs have resulted in the provision of basic education facilities in IDP camps. However, the simple provision of education does not fulfil the right of IDPs to education: the condition of IDPs in the context of Sudan is a political question, not only a humanitarian issue that can be addressed through committing monetary funds. It is also a question of power differentials and labelling. By way of closing this discussion, let me emphasize two points. First, the question of rights must not be looked at in the abstract. Rights can only be

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thought of and realized in a given context. Hence, the empirical data on IDPs are important. Second, while Sudan’s record on violating rights is impressive, it is precisely for this reason that a rights-based approach is both appropriate and necessary.

IDPs in Khartoum: characteristics and main features A precise figure for the total number of IDPs in Sudan does not exist. Apart from the fact that the numbers are constantly fluctuating, there are differences of opinion as to who should be included, and when a person has become or ceases to be internally displaced. Some scholars (Shami 1990) question the very usefulness of operating with a definition, arguing for instance that forced migration, whether cross-border or internal, should be dealt with comprehensively. However, for analytical and practical purposes, it is valuable to have a common perception. The UN defines IDPs as: persons or groups of persons who have been forced to flee or leave their homes or places of habitual residence, in particular, as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border. (Hampton 1998: xv) A lack of consensus over the exact number of IDPs in Sudan affects the way their conditions are understood. And since their conditions are not properly understood, the realization of their rights is also affected. Different reports suggest that until 2002, Sudan had a total of four million IDPs, constituting the highest number of internally displaced persons in the world. This figure now exceeds five million as a result of the civil war in Darfur, which erupted in 2003 and led to the displacement of more than 1.5 million persons (Assal 2006c). The distribution of IDPs within the country and the conditions under which they live are issues of contention between UN agencies, NGOs and the government. A recent comprehensive report by CARE and the International Organization for Migration (IOM) (2003) provided a figure of 49,090 as the total number of IDP households living in camps in Khartoum. The same report provides a figure of 326,209 as the total number of IDPs in the four major camps in Khartoum and other selected squatter settlements in the national capital. Due to the volatile political situation in the country, these figures must be treated with caution. IDPs in Khartoum make up approximately 40 per cent of the capital’s current population;8 they also represent almost half of Sudan’s displaced population. According to the Humanitarian Assistance Commission (HAC), there are between 1.8 and 2 million IDPs in Khartoum. Of these, 273,000 live in camps established by the government during the early 1990s and the rest

148 Forced Displacement Table 7.1 Estimated population of the four IDP camps in 2004 (HAC) Camp Wad Al Bashir Al Salam Jebel Awlia Mayo Total

Number of households

Total population

7,000 18,000 8,000 9,000 42,000

45,500 117,000 52,000 58,500 273,000

Source: fieldwork 2005.9

live in squatter settlements and other residential areas in Khartoum. Based on HAC’s estimates, the four camps (Wad Al Bashir, Al Salam Omdurman, Jebel Awlia and Mayo Farms) host respectively 45,500, 117,000, 52,000 and 58,500 IDPs (Assal 2004) (see Table 7.1). They mainly come from the western and southern regions of Sudan including Greater Kordofan, Greater Bahr Al Ghazal, Greater Darfur, Unity and Nile states (Jonglei, Blue and Upper Nile and Unity states) and Greater Equatoria. The empirical conditions of IDPs in camps around Khartoum have been the subject of many recent studies (Abdel Ati 2004; Assal 2004; Banaga 2001; El-Nagar 1996; Hamid 1992, 1996; Inter-Agency Report 2004, NRC 2004; Osman and Sahl 2000). I have also argued elsewhere (Assal 2004: 32) that there has been a considerable shift in connections from areas of origin to current places of residence. Some displaced persons have been living in Khartoum since the mid-1980s and have therefore established connections – a situation which necessitates a reconsideration of the labels used to identify them such that they are able to exercise their rights as dignified citizens, while not depriving them of exercising the right to return, if or when they choose to do so.

Al Salam camp: education, livelihoods and community-based organizations Overview Al Salam camp, widely known as Jabarona, which literally means ‘we were forced’, is one of the four official IDPs camps in Khartoum. Calling the camp Jabarona is indicative of how the relocated groups felt about their new location, which borders the desert. Jabarona is located on the western periphery of Omdurman, about a twenty-minute drive west of Souq Libya. The camp was established in February 1992 to host IDPs expelled from different parts of Khartoum (Assal 2004). In 2003, the authorities started a process of reorganizing the camp to upgrade it to a normal residential area. People who were living in the camp

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at the start of the process were given tags or cards to ascertain their eligibility for plots. The process of demolition started on 11 November 2003, and the camp was divided into twelve blocks, each containing 2,080 plots. By the end of 2005, a total of nine blocks had been surveyed and organized. Organization of the remaining blocks is underway.10 Since 2003, the authorities have bulldozed thousands of mud-brick houses in the camp. A government official at the Migrants’ Housing Office said that the demolitions were part of a larger replanning process which should bring residents vital services such as electricity and water.11 Some 25,000 families had applied for the new government-allocated plots. Of these families, 11,000 could afford a plot and had the necessary documents, such as a birth certificate and a medical assessment of age, to make the purchase. It must be stressed that those who are entitled to plots have been residents since at least 1997. Those who arrived after 1997 will be considered only after the long-term IDPs are served. The process of reorganizing the camp has affected service provision. For instance, 7,000 toilets used to exist in the camp – one for every three families. At the time of our study, most of them had been destroyed, leaving most people without access to toilet facilities.12 A member of Al Wifaq CBO, the first women’s organization in Al Salam camp, said: Health services have suffered as a result of the withdrawal of international aid organizations. Medical services are scarce now and have to be paid for. In the afternoon, no emergency services are available as the remaining doctors work half-days. There is one nurse who helps with the delivery of the babies of approximately 12,000 families. Another concern of inhabitants is the recent increase in crime, due in part to the camp reorganization. The leader of one popular committee in the camp commented: ‘In an incident of armed mugging that occurred two months ago, a local inhabitant was attacked with a knife in order to take his money. Pulled down fences enable thieves to have easy access to homes; empty plots hinder any rescue effort by others.’13 Education There are eighteen primary schools and five kindergartens in the camp. Seven of these are government schools, and four of them are not functioning at the present time. There are no secondary schools. The Ministry of Education supervises the performance of these schools and pays salaries of teachers in government schools. Since pupils are a mixture of Muslims and Christians, both Christianity and Islam are taught in all schools. As the fieldwork revealed, some schools were overcrowded with a teacher– student ratio reaching on average 1:40, and an extreme example of one school where for every teacher there were 118 pupils (Assal 2006a). These

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schools suffer other problems as well, including the payment of teachers. For instance, Al-Tilal, a popular school, pays its teachers from tuition fees, as do three others. Since the Ministry of Education does not pay salaries to non-government schools, these schools crowd classrooms in order to raise income for salaries. The problems of education in the camp can be categorized into: (i) problems that relate to the schools themselves, such as poor construction, poor equipment, lack of teaching facilities and illustration materials, congestion and crowding, lack/shortage of school textbooks, and lack of recreational and cultural activities, which is partially due to a lack of trained teachers who could supervise these; (ii) problems related to the teachers, which include lack of qualified staff due to lack of training, poor salaries, which force teachers to engage in ‘extra-curricular activities’ as an additional source of income, large numbers of students, and the fact that many teachers come from outside the camp which implies high transportation costs; and (iii) problems related to the curriculum.14 These combined problems affect IDPs’ right to education as well as their livelihoods. Children who do not go to school end up joining the labour market. Each pupil is required to pay enrolment fees determined by the Ministry of Education, in addition to monthly fees. The local authorities and school management also impose additional fees. The construction of new classrooms and the maintenance of existing ones are the responsibility of parents. The high school dropout rate – 48 per cent in 2005 (CPI 2006: 27) – is generally attributed to the inability of families to pay school fees and provide their children with school uniforms, as well as to the families’ need for their children’s labour. The fees are lower, however, at church-affiliated schools compared to government schools. The imposition of educational fees in Al Salam camp represents a breach of Principle No. 23 of the UN Guiding Principles on Internal Displacement,15 and a violation of Article 13 of the 2005 Interim Constitution of Sudan.16 The right of IDPs to education is, thus, far from being realized. People endeavour to educate their children through self-help (building and maintaining schools and paying tuition fees). Some also receive assistance from international sources such as UNICEF, among others. In 2005, for example, UNICEF provided 6,230 children with school supplies and trained 400 teachers.

Livelihoods Remaining in a situation of protracted displacement, IDPs live in the north of Sudan as second-class citizens facing discrimination and difficulties in accessing the labour market, social services and benefits. This situation impacts their ability to obtain jobs and become self-reliant. Until 1998, IDPs in Al Salam camp depended on relief rations provided by NGOs which covered around 70 per cent of households’ needs for food (Assal 2004).

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Following the halt of relief distribution in 1998 and the departure of most international NGOs from Al Salam camp in 2003, the livelihoods of IDPs were put under significant stress. Previously, IDPs had received sufficient free food rations, so seeking employment was not a priority for the majority of people. Until 1998, only a few men worked in building and construction sites in Khartoum, while women engaged in informal activities (tea selling, working in the homes of affluent people, and brewing local beer). According to the omda (traditional leader) of Dinka Aweil, ‘When relief was cut, 90 per cent of men depended on women who work either as housemaids in Khartoum or brewing aragi [local alcoholic drink]. When some sultans [traditional leaders] and other IDPs were recruited in the Popular Police Forces, unemployment was reduced.’17 Local community-based organizations (CBOs) estimate the current unemployment rate in Al Salam camp at 90 per cent. Since most of the inhabitants are illiterate and unskilled, they have great difficulty finding jobs. Those who are lucky get jobs with the police, in schools in the camp, or in factories outside the camp area. The salaries of those who are working are not enough to cater for family needs. There is an overwhelming dependence on women, and some families subsist on only one meal during the day.18 Women and youth carry the burden of putting food on the table. The youth go to work in Khartoum, stay for the whole week and come back for the weekend. Women commute daily and come back in the evening to bring food. Like education, the right to livelihood, enshrined in Principle 18 in the UN Guiding Principles, has not been guaranteed for the IDPs.19 Community-based organizations in Al Salam camp A growing awareness of and noticeable efforts to articulate IDPs’ rights are evident in Al Salam camp. This is discernible from the presence of community-based organizations which lobby and advocate for realizing the rights of the displaced. These incipient civil society organizations have different programmes to deal with the problems of the camp, but finances present a basic constraint. The leader of one of these organizations lamented: Donors do not come directly to us. Instead they come through intermediaries to provide their support for our community-based organizations. The intermediaries (NGOs) present their programmes to us for implementation. We are the ones who know the conditions, priorities and how to deal with them. Donors should come to us first.20 At the present time there are ten CBOs in Al Salam camp, of which only four are registered and hence legally recognized by the authorities. They include (1) Sawa Sawa; (2) Al Wifaq; (3) Peace and Development; and (4) Tallora. Some of these organizations are responsible for water projects (Sawa Sawa); others (Al Wifaq) assist widowed, orphaned and deserted women by providing a

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revolving fund and training. Peace and Development engages in petty trading and the construction of toilets, and Tallora’s activities include fighting blindness, running two kindergartens and other projects. The membership of these organizations is drawn from different parts of the community and the organizations receive funding from international NGOs and other funding bodies. These CBOs are closely linked to the IDPs, to the extent that they are locally based and their members are IDPs resident in the camp. Therefore, they are in a position to know and identify the issues and hence pursue the rights of their constituents. Tallora, for instance, is engaged in helping IDPs get identification cards, the possession of which determines entitlement to residential plots in the area, among other things. These organizations also work with authorities to provide better services to IDPs. Their main concern is the bureaucracy of donors who fund through intermediaries, often crippling the implementation of projects which are rarely sensitive to local priorities. These CBOs focus on IDPs’ rights (health, education and housing) and their approach comprises lobbying and advocacy, soliciting financial assistance from international NGOs, and partnering with other civil society organizations. They seek to achieve their goals by capitalizing on the participation of community members.

Return/integration options and their implications for rights The option of return/integration of IDPs represents a policy challenge for the Government of National Unity and the Government of Southern Sudan. It also represents a challenge for donors and international organizations providing return and development assistance. Many factors contribute to this situation. First, strategies that would enable the implementation of the different options directed at solving the problems of IDPs are unclear. The government policy of reorganizing the IDP camps is perhaps an exception, although it is also sending a contradictory message with regard to return or integration options. Second, the focus by donors and international humanitarian and development organizations on the right to return ignores other key rights, such as livelihoods and education, for IDPs who still live in camps. Third, despite numerous studies on IDPs, still little is known about IDPs’ own intentions or priorities regarding their future options. IDPs in Al Salam camp corroborate that there are different opinions regarding return.21 For instance, Nuba men in Al Salam camp would prefer to stay in Khartoum. The reasons listed include: (i) seeking the best future for their children; (ii) the persistence of instability in the Nuba Mountains (some had visited the Nuba Mountains in recent years and realized that it is still not safe); and (iii) ownership of a residential plot in Khartoum. Similar views were also expressed by Nuba women who argued that it is better for their children to be raised in Khartoum: ‘Our children who were born and grew up

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here do not know what it looks like in the Nuba Mountains. The little that they know is relayed to them by elders.’ Nuba youth themselves, however, are ambivalent. The Dinka provided a contrasting picture. Among a group of twenty Dinka men, sixteen said they would return immediately. They argued that the difference in livelihood patterns between the north and south puts strains on them: ‘In the south, we depend on cattle and farming, and it is easy to live without cash’, one man argued. The end of war in the south was also cited as a reason to go home. But importantly, the stress on cultural identity was key: ‘Our children are living in a totally different society, and they are losing their cultural identity’, an elderly Dinka man lamented. Although the Dinka are enthusiastic about going back, their return is conditional on attaining reasonable rehabilitation in their home areas: health and education were mentioned as the most important aspects. Those who preferred to stay in Khartoum cited better education for their children.22 Dinka youth concurred with their elders on the question of return, emphasizing a crisis of cultural identity as a reason for return. Those who would not go back reasoned: ‘There is nothing in the south to go for. We do not even know how to herd cattle or cultivate.’ In contrast to the elderly and young men, Dinka women were less positive about going back. They would not sacrifice the education of their children: ‘If we must go home, we will split our families; some members will stay here and others go to see what is taking place there’, one woman explained.23 Decisions to stay or return are linked to well-being and future opportunities. IDPs are active agents in deciding their own fates, and as such, assistance programmes related to return must take notice and incorporate their agency in decision-making processes. While helping them to exercise the right of return, donors should mainstream rights-based approaches in their programmes, to ensure sustainable and equitable access to livelihoods while IDPs are still in Khartoum. One way of doing this is to ensure that rights-based approaches are included in the project cycles of all programmes that are funded or implemented by NGOs. The preceding discussion of local CBOs has revealed that there is still far to go before the rights of IDPs are realized in the camp. The intentions of IDPs to return should be treated with caution, however. In light of the slow implementation of the peace agreement and little progress in making original areas safe for return, IDPs are likely to continue to stay in Khartoum in the near future. This raises the question: how long should the label naziheen continue? Should it cease to exist once the IDPs return to their original areas, or should it cease to exist when they are integrated in the host communities? But these polemical questions cannot be addressed here. However, neither the return of IDPs to their original areas nor their integration into host communities implies that their rights are automatically safeguarded.

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Conclusions Many years of protracted displacement, poor or inadequate responses from national governments and the international community, and the huge numbers of IDPs in Sudan produce a difficult policy environment. Realizing the rights of IDPs contained in the UN Guiding Principles for the displaced is a task yet to be accomplished for the Sudanese IDPs. There is no doubt that protecting IDPs and guaranteeing their rights is the primary responsibility of the Government of National Unity and the Government of South Sudan. As Sudanese citizens, IDPs fall under the direct protection of their own government, although requiring special consideration due to their condition (as is also the case for oustees; see Mehta, Morvaridi, and Yong, this volume). This means that enforcing a rights-based approach with the five constituent elements mentioned earlier is also the primary responsibility of the two governments. A prerequisite for fulfilling this responsibility is dealing with both the root causes of displacement and its consequences. Thus far, little has been done. The Comprehensive Peace Agreement provided a framework for dealing with root causes by addressing injustices in the IDPs’ areas of origin. However, a commitment of political will on the part of the Government of National Unity and the Government of South Sudan is needed to realize the provisions of the CPA and hence enforce a rights-based perspective in solving the problems of IDPs. At present, such political will is absent. The uncertain future of Sudan – whether to remain united or divide into two countries – certainly influences this situation. The duty of the international community to provide technical and financial assistance for the realization of rights for IDPs is imperative and no less important than national responsibility. For the international community’s duty to be effectively fulfilled, a consensus has to be created around a framework for international assistance and cooperation, and also around a clear rights-based approach. So far, the international community has been showing a remarkable lack of vision, not only with regard to realizing rights, but also with regard to political solutions in general in Sudan. The challenges for strengthening the emerging IDP regime are discussed in the chapter by Robert Muggah in this volume. The problems related to the specific Sudanese context, and the lack of international consensus combine to obstruct the realization of economic, social and cultural rights, as well civil and political rights of IDPs in Khartoum. Evidence from the Al Salam camp reveals that the rights of IDPs are frequently violated, including the right to education by the imposition of fees. In the national context, this is a violation of a constitutional right (Article 13 of the Interim Constitution). Although many laws protecting basic rights exist in the Interim Constitution and other national legislation, they are not enforced, calling into question the state’s sense of responsibility towards its citizens.

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Despite bleak conditions and prospects for IDPs in Khartoum, the vacuum of providing services and access to rights for IDPs is partially filled by the interventions of community-based organizations, which are striving to deal with the problems facing IDPs. But they are poorly funded and organizationally weak – problems that are arguably the responsibility of donors and the national government. The government merely legalizes their status through registration, but does not assist CBOs logistically. Since these CBOs are locally based, work with IDPs and understand their problems, they need to be supported and given access to participation in decision-making at local and national policy levels. Their work around raising awareness of rights among the IDPs in the camps has had an impact, as shown in this chapter. The question of return is another area of concern which, if not carefully addressed, will jeopardize the rights of IDPs. The absence of databases on IDPs and lack of knowledge about their attitudes towards return represent policy challenges. The unpredictable policies of international NGOs and the lack of preparedness on the part of national NGOs (due to a lack of funding, organizational lethargy and the state’s policies) make it difficult to send home willing IDPs. The national politics of the Government of National Unity and the Government of South Sudan also frames the extent to which IDP return is voluntary. Each side had been trying to ‘win’ IDPs before the national census took place in November 2007. The government in Khartoum tries to prevent the IDPs from returning to the south, whereas the GoSS puts pressure on IDPs to come back. The future of Sudan is at stake and IDPs are part of that political struggle. The IDPs themselves show mixed attitudes towards both return and integration into host communities. As several case studies in this volume show, access to rights, livelihoods and justice influences the overall well-being of displaced people and their decisions concerning return. Likewise in Sudan, for IDPs, livelihood opportunities, and the enjoyment of and access to rights and services are important factors influencing their decisions regarding return or integration (Kibreab, this volume, also discusses the case of refugees in the Sudan). Thus the likelihood of fulfilling rights, in particular in terms of social services, is the dominant determinant of their future place of residence.

Notes 1. The research on which this chapter is based was made possible by generous funding from the Development Research Centre on Migration, Globalization and Poverty, University of Sussex. I acknowledge this support with gratitude. I would like to thank sincerely Dr Laura N. Beny (University of Michigan) for her insightful comments on an earlier draft of this chapter. Thanks are also extended

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2. 3.

4.

5.

6.

7.

8.

9. 10. 11. 12. 13. 14. 15.

16.

17. 18. 19.

20.

to the editors, Katarzyna Grabska and Dr Lyla Mehta, for their comments and suggestions. The research was carried out in collaboration with Forced Migration and Refugee Studies at The American University in Cairo. Since 2003, Darfur has been in a crisis which has resulted in the death of tens of thousands of people, the burning of villages and the displacement of millions. Although an agreement was signed in 2006 in Abuja, the crisis is ongoing. The conflict in eastern Sudan was ended with an agreement signed in October 2006 in Asmara, Eritrea. Tensions, however, persist. See further discussion of the contradictions and challenges of an emerging regime for the internally displaced in the chapter by Robert Muggah in this volume. For comparison with oustee situations in India and Malaysia see Mehta and Yong, respectively, in this volume, who tackle similar dilemmas around rights. In a broad sense, vulnerability is defined as a set of conditions and processes resulting from physical, social, economic and environmental factors, which determine the susceptibility of a community to the impact of hazards. Although both the CPA and the Interim Constitution provide a specific clause that sanctions freedom of movement, entry to and exit from the four IDP camps in Khartoum is still monitored by security forces and employees of the Humanitarian Aid Commission (HAC). This law was passed in 2005 by a presidential degree. It was considered unconstitutional by civil society and human rights organizations. It contains restrictive clauses that render voluntary work almost impossible. According to the 1993 population census, Khartoum had a population of 2.8 million. However, this seems to be a gross underestimation. According to population projections, the current population of Khartoum is between 5 and 7 million. Interview, Director, Humanitarian Assistance Commission (HAC), Khartoum State, December 2005. Interview, Sultan Angoy Atiab, President of Block 50 Popular Committee, December 2005. Interview, Asia Obeid, social worker, Migrants’ Housing Office 21 December 2005. Interview, Fibiano Malwal, President, Sawa Sawa Organization, 7 December 2005. Interview, Sultan Angoy Atiab, ibid. Interview with Badawi Abulwahid, Dar Al Salam Educational Office, 12 December 2005. Article 23 stipulates that ‘the authorities concerned shall ensure that such persons, in particular displaced children, receive education which shall be free and compulsory at the primary level.’ It must be stressed that general education in Sudan suffers problems similar to those in IDPs’ schools. In March 2006, for example, primary and high secondary school teachers filed a complaint against the delayed payment of their salaries (Al-Rai Al-aam, Saturday, 11 March 2006). Interview with Abdelrahman Yell, the omda of Dinka Aweil, 29 December 2005. Interview, Sultan Kiir Agor, 18 December 2005. Principle 18 stipulates that ‘at the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide internally displaced persons with and ensure safe access to: (a) essential food and potable water; (b) basic shelter and housing; (c) appropriate clothing; and (d) essential medical services and sanitation.’ Interview, Fibiano Malwal, President, Sawa Sawa Organization, 7 December 2005.

Rights and Decisions to Return 157 21. Group discussion, Nuba men and women, Al Salam camp, January 2006. 22. Group discussion, Dinka men and youth, Al Salam camp, 3 January 2006. 23. Group discussion, Dinka women, Al Salam camp, 7 January 2006.

References Abdel Ati, H. 2004, ‘Displacement and Poverty in Khartoum: Two Faces of the Coin?’ A report for MEAwards, Cairo: Population Council. Abu Salim, M. I. 1979, The History of Khartoum (in Arabic), Beirut: Dar al-Jeel. Assal, M. A. M. 2002, ‘A Discipline Asserting its Identity and Place: Displacement, Aid and Anthropology in Sudan’, Eastern Africa Social Science Research Review 18(1): 63–96. Assal, M. A. M. 2004, ‘Displaced Persons in Khartoum: Current Realities and Post-war Scenarios’, MEAwards, Cairo: Population Council. Assal, M. A. M. 2006a, ‘Whose Rights Count? National and International Policy Responses to the Rights of IDPs in Sudan’, report for DRC project ‘Rights Based Approaches to Forced Migration’, Sussex: IDS. Assal, M. A. M. 2006b, ‘Identity and Resource-based Conflicts in Sudan’, Development 49(3): 101–5. Assal, M. A. M. 2006c, ‘It is All About History Repeating Itself: the State and the Involution of Conflict in Darfur’, Journal of Darfurian Studies (sample issue), 1(1): 6–22. Banaga, S. 2001, Displaced Persons and Peace Opportunities with Emphasis on Khartoum State (in Arabic), Khartoum: Centre for African Research and Studies. Brun, C. 2003, ‘Local Citizens or Internally Displaced Persons? Dilemmas of Long Term Displacement in Sri Lanka’, Journal of Refugee Studies 16(4): 376–97. CARE and IOM 2003, ‘Sudan IDP Demographic, Socio-Economic Profile for Return and Reintegration Planning Activities: Khartoum IDP Households’, Khartoum: CARE and IOM. CPI (Child Care Initiative) 2006, ‘Vulnerable Children in Khartoum: Status, Problems, Needs and Services Offered’, CPI Publication Series, No. 6, Riyadh, Saudi Arabia. El-Nagar, S. 1996, ‘Displaced Women in Khartoum: Problem Analysis and Recommendations for Action’, a report for WFP, Khartoum. Galal El-Din, M. 1973, ‘Internal Migration in Sudan since World War II with Special Reference to Greater Khartoum’, PhD dissertation, University of London. Hamid, G. 1992, ‘Livelihood Patterns of the Displaced Households in Greater Khartoum, Sudan’, Disasters 16(3): 231–9. Hamid, G. 1996, Population Displacement in Sudan: Patterns, Responses, Coping Strategies, New York: Centre for Migration Studies. Hampton, J. 1998, Internally Displaced People: a Global Survey, London: Earthscan. Inter-Agency Report 2004, ‘Khartoum Inter-Agency Rapid Assessment Report on the Conditions of IDPs’, unpublished report, Khartoum. Kibreab, G. 1990, The Sudan: From Subsistence to Wage Labour: Refugee Settlement in the Central and Eastern Regions, Trenton, NJ: Red Sea Press. McLoughlin, P. 1970, ‘Labour Market Conditions in the Three Towns 1900–1950’, Sudan Notes and Records 15. Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-Based Approaches in Forced Migration’, Sussex: Development Research Centre on Migration, Globalization and Poverty. NRC (Norwegian Refugee Council) 2004, ‘Profile of Internal Displacement: Sudan’, Geneva: Norwegian Refugee Council.

158 Forced Displacement Osman, E. and I. Sahl 2000, ‘Displacement and Poverty: a Situation Analysis’, report for the Agency for Cooperation and Research in Development (ACORD), Khartoum. Robinson, M. 2000, ‘Development and Rights: the Undeniable Nexus’, presentation to the World Social Forum on Development, 26–28 June, Geneva. Shami, S. 1990, The Social Implications of Population Displacement and Resettlement: an Overview with a Focus on the Middle East, Cairo: Population Council. UN 1995, ‘Compilation and Analysis of Legal Norms: Report of the Representative of the Secretary-General’, E/CN.4/199. UN 2005, ‘UN Assistance to IDPs and Returnees in Sudan, January to June 2005’, Issue 1, September, Sudan, available at http://www.unsudanig.org/rrr/index.php?fid=reports Vincent, M. 2000, ‘IDPs: Rights and Status’, Forced Migration Review, 8: 29–30.

8 Rights, Needs and Responsibility: Challenges to Rights-Based Advocacy for Refugees’ Health and Education in Lebanon Samira Trad and Michael Kagan

Introduction This chapter highlights challenges to rights-based strategies to improve refugees’ social and economic welfare in Lebanon. As Palestinian refugees belong to a special category of refugees in Lebanon and their situation is discussed by Jaber Suleiman in this volume, we will exclusively focus on the conditions and policies affecting other refugee nationalities present in Lebanon. We argue that social and economic rights must be seen in connection with two other interrelated factors. First, though in theory social and economic rights do not necessarily depend on formal recognition of refugee status, their realization is likely to be impeded where (as in Lebanon) a government fails to recognize refugees’ basic civil status. Second, it is difficult to implement a theoretical right without a clear understanding about who is responsible for realizing and implementing the right. In this chapter, we focus on strategies that are rooted in legal conceptions of rights, both in international and domestic human rights law. We use the terms rights-based and human rights interchangeably to refer to such strategies. For these purposes, health and education are useful issues to focus on because in international law they are rights that do not necessarily depend on a foreigner’s legal status, and because both require active institutional involvement to make theoretical rights a reality. In the case of refugees, it is essential to pinpoint who is responsible for providing rights. As we will argue, lack of domestically recognized civil status for refugees has the effect of deflecting responsibility from a host government towards the United Nations and the non-governmental sector. Diffusion of responsibility produces a situation where it is difficult to actually implement theoretical rights. 159

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Mehta and Gupte have proposed that the main difference between rightsbased and needs-based approaches to refugee policy is the degree to which the beneficiaries are involved in decision-making (Mehta and Gupte 2003). In theory, a rights-based approach should be less top-down and should involve refugees in more influential roles. But the way in which rights approaches increase refugee agency in policy-making is complex. We argue that human rights, as a set of norms rooted in law, can be a very topdown means of decision-making, which does not always reflect the desires of refugees. Human rights law does not necessarily always vindicate the powerless. Human rights law provides a structure for analysis to determine which claims are legitimate, and which are not. This chapter begins with a summary of our methodology, including both interview research methods and background about our own professional perspectives. We then summarize the legal and social context in which refugees in Lebanon find themselves and examine the rights that refugees are theoretically guaranteed by law. With this background, we examine the ways in which responsibility for refugee policy in Lebanon has been shifted from the government to the United Nations, and the challenges that result from this shift, including discouraging refugee involvement in setting policy. As a conclusion, we examine the links between refugee rights, recognition of refugee status and the assignment of responsibility.

Methodology We are not and were not neutral researchers. The lead author of this study, Samira Trad, is the director of Frontiers (Ruwad) Association, a Lebanese NGO devoted to advocating refugee rights through research and legal counselling. She has been a leading refugee rights activist in Lebanon since 1999. The co-author, Michael Kagan, is an American lawyer who has been a consultant with Frontiers since 2003. At the time of research, Frontiers was completing its own study of social and economic livelihoods of refugees in Lebanon and part of our findings are based on this study. While we are hardly neutral, our purpose in this research was not to advocate a particular viewpoint. Instead, we wanted to promote refugee rights advocacy by taking a critical look at the challenges facing anyone who wants to take a rights-based approach to refugee policy in Lebanon. We wanted to problematize the rights-based approach in order to help us and other advocates refine our own work. Our view going into the research is that refugee rights advocates, ourselves included, are often not conscious enough of weaknesses of our own approach, and this reduces our capacity to overcome challenges. This chapter is about the practice of refugee policy in Lebanon, and about the degree to which this policy is determined by rights as guaranteed in

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international law. It is not about how organizations advocate refugee rightsbased policies, although it does discuss reasons why refugees are not always involved in shaping policies that affect them. We focus on policy rather than advocacy because one of our major concerns is about the assignment of responsibility for guaranteeing refugee rights. In Lebanon, there is a considerable degree of confusion about whether responsibility for refugee policy rests with the Lebanese government, the UN High Commissioner for Refugees, or both. It is not possible to analyse strategies for refugee advocacy without first examining which institution is responsible for refugee policy. The assignment of responsibility will effectively determine whether advocates aim to change the policies of the government or the UN, a question likely to impact the strategies they choose to pursue. This study was limited in time1 and scope, and we hope that it will encourage further in-depth research and studies in the future. The interviews were conducted in 2005, but many of the problems concerning the protection of refugee rights that we mention had occurred over the previous years. In this study, we use the term ‘refugee’ somewhat loosely to refer to foreigners in Lebanon who believe at least subjectively that they cannot go back to their countries of origin because they would be in danger there. This is a broader definition than the legal criteria for refugee status. However, because the social and economic rights which we were addressing are guaranteed in international law independent of refugee status, we wanted to address the situation of a broader category of migrants in Lebanon beyond formally recognized refugees. In addition, because similarly to the situation in Egypt (see Grabska, this volume) there is no reliable mechanism for determining who is a refugee in Lebanon (Kagan 2006: 9–12),2 addressing only those people formally recognized as refugees would exclude those who may have been denied that status recognition in error. As Kagan has argued elsewhere, reliance on UNHCR refugee status determination tends to produce a systematic undercounting of urban refugees in the developing world (Kagan 2007). With these considerations in mind, we focused our research on foreigners who either are recognized as refugees by the UN High Commissioner for Refugees, have pending applications with the UNHCR, or who were previously registered refugees or asylum seekers with that organization. We also interviewed a small number of people who never applied to the UNHCR for refugee status. Between May and December 2005, we interviewed twenty-five refugees,3 using questionnaires that were structured but allowed in-depth encounters to document respondents’ perceptions of the policies and the execution of policies regarding the right to education and to health care. The refugee group was pre-selected to cover the broader spectrum/profile of the existing population. It included four who were community leaders, two Sudanese and two Iraqis. The others were recognized refugees, asylum seekers with pending applications to the UNHCR, people who never applied, closed cases

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(asylum seekers who have received final rejections from the UNHCR) and cancellation cases (people formerly recognized by the UNHCR but who have been stripped of their recognition because of alleged fraud). Fifteen of them were Iraqis, eight were Sudanese, one Egyptian and one Congolese. Four of those interviewed were female. We also interviewed staff members of six non-governmental organizations working with refugees in Lebanon, as well as staff members of the UNHCR office in Beirut. We requested interviews with officials at the ministries of health, labour and interior, but succeeded in obtaining an interview only with the Ministry of Health. The subsequent discussion is based on our fieldwork, other studies carried out by Frontiers in the past years and our knowledge of the issues as people actively involved in refugee policy and advocacy in Lebanon.

Legal and social context In Lebanon, the vast majority of refugees are Palestinians who have been exiled from their homes inside what is now Israel. Social, economic and civil rights are a major challenge for Palestinians, but for different reasons than non-Palestinians. Most Palestinians in Lebanon do not fall under the mandate of the UN High Commissioner for Refugees, although there are thousands who actually lack government registration or that of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) (Frontiers Association 2005b; for further discussion see Suleiman, this volume). Apart from Palestinians, there are several thousand other refugees in Lebanon, but exact numbers are difficult to produce. The UNHCR’s statistical report for 2005 notes 1,078 refugees and 1,450 asylum seekers in Lebanon, but these numbers appear to refer to cases, not persons (a single case can include several family members) (UNHCR 2006: Table 1). As these statistics reflect, the largest numbers of officially recognized refugees in Lebanon are asylum seekers with pending cases. Once they are rejected by the UNHCR, they are no longer recorded in official statistics. If they remain in Lebanon, they become an essentially invisible population. Nevertheless, what is clear is that the largest numbers of non-Palestinian refugees in Lebanon are Iraqi, followed by Sudanese. The available information paints a fairly dire picture of non-Palestinian refugee protection in Lebanon. The country is not a signatory to the 1951 UN Refugee Convention and has no refugee legislation or refugee status determination procedure of its own. The UNHCR carries out refugee status determination (RSD), provides some minimal material assistance to refugees, and refers many or most refugees for resettlement to the US, Canada or Australia, and some Scandinavian countries such as Sweden and Finland.4 Lebanon’s protection of refugees was based on an unwritten 1963 oral ‘gentleman’s agreement’ between the government of Lebanon and the UNHCR,

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allowing the UNHCR to operate in the country. This agreement broke down after 1999 (ACSRA 2000, 2001, 2002). Refugees have been vulnerable to frequent arrest and in many cases deportation. Detention conditions are reported to be poor, according to refugees interviewed by human rights organizations (see Frontiers Center 2003a). In terms of health and education, refugees are dependent on UNHCR assistance, which is often limited. With so little legal foundation for protection in Lebanon, refugees rely on the availability of third country resettlement in order to find long-term stability. This reliance on the hospitality of other countries created a serious crisis when resettlement opportunities declined after the 11 September 2001 attacks in the United States. Kagan (2006: 6–7) explains this problem as follows: Resettlement quotas are small relative to the global refugee population, and processing is slow. Refugees hence need to be able to spend significant time – in many cases, years – in their first country of asylum. In Lebanon, where the government did not recognize even a temporary right of residence for refugees, refugees faced a serious protection crisis when resettlement opportunities dwindled. After September 11, 2001, the US government temporarily suspended its refugee resettlement program while it devised new security screening measures. An apparent watershed in Lebanese refugee policy occurred in 2003 (Frontiers Center 2003b). In September 2003, the Directorate General of General Security signed a Memorandum of Understanding (MOU) with the UNHCR, the first such written agreement in Lebanon’s history. The MOU’s main contribution to refugee rights was an acknowledgement by the Lebanese government that asylum seekers and refugees could remain in the country temporarily. Though a breakthrough in Lebanon, this commitment stopped well short of the principle of non-refoulement, the rule of international law that prohibits forced return of any foreigner to a country where their life or freedom would be in jeopardy, and provided no guarantees against detention. What rights do refugees have? Discussion of refugee rights usually begins with international refugee law. Yet for social and economic rights, refugee law is just one of several sources of law. Since Lebanon has not ratified the 1951 Convention relating to the status of refugees, it is especially important to look at the rights refugees and other foreigners may have in Lebanon by virtue of other bodies of human rights law, especially other human rights treaties ratified by Lebanon. International law permits states to control immigration and to control their borders. This implies the authority to restrict entry to foreigners and to deport illegal migrants so long as deportation would not put their life or freedom in danger (CERD 2004: para. 27). Lebanese courts have confirmed

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that the decision to remove a foreigner from Lebanon cannot be executed where this would expose him or her to the risk of torture, as provided for in Article 3 of the Convention against Torture. For example, in the case of a recognized Sudanese refugee, Makiram din Nutout, whose entry into Lebanon was illegal, the court of first instance, relying on the Torture Convention, refused to deport him since returning him to his country would place him at risk of torture, based on his belief in a particular religion. States may restrict the economic rights of foreigners, especially their rights to employment, property and other forms of trade and professional life. Yet the authority to control migration does not mean that states may ignore the social rights of foreigners so long as they remain present. One of our findings is that Lebanon’s refusal to sign the Refugee Convention has produced a widespread belief that the country has opted out of providing any rights to refugees and forced migrants. Legally, this is not so. The International Covenant on Economic, Social and Cultural Rights (ICESCR) can be a source of rights for unrecognized foreigners, but it contains significant ambiguity. In most of its key articles, it guarantees rights to ‘everyone’, as we will detail shortly. Yet its Article 2(3) provides that developing states ‘with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals’. Critically, this permission to exclude foreigners applies only to economic rights; if a right can be defined as social or cultural, foreigners should be included. If the right is economic, they can be legally excluded. The Covenant does not define the difference between economic and other types of rights. Although health and education impose monetary costs on a state, they should be considered primarily social rights, not economic rights. Education is dealt with in Article 13, which provides, ‘The States Parties to the present Covenant recognize the right of everyone to education.’ It justifies this right as a means of fulfilling ‘full development of the human personality’, and as essential for the enjoyment of other human rights. The ICESCR provides for health rights in Article 12: ‘The States Parties . . . recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ In his recent comprehensive treatise on refugee rights in international law, Hathaway found that health care is clearly established as a non-economic right, making refugees clearly entitled (Hathaway 2005: 512–13). But he reports that there is confusion about whether education can be considered an economic right, because it has economic, social and cultural aspects (ibid.: 601). We argue that the ambiguity about education rights is very slight, and that there is no rational reason to distinguish health and education for these purposes. Education has economic character only because it costs money to provide and because it enhances a person’s economic productivity and earning power. But the same can be said of health. In this respect, a huge range of

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social programmes provided by governments have economic impact. Were education to be considered an economic rather than a social right, the entire concept of social rights would be severely limited and a wide body of human rights law effectively emaciated. Health and education rights are guaranteed to children in terms identical to the ICESCR. The Convention on the Rights of the Child (CRC), which guarantees children’s rights regardless of their parents’ legal status (Article 2(1)), guarantees children ‘enjoyment of the highest attainable standard of health’ (Article 24). It also mirrors the ICESCR in guaranteeing compulsory education at the primary level, and higher education as allowed by a country’s resources (Article 28). The inclusion of identical rights in the CRC is important because children are not usually economic actors in the sense of being threats to the national economy. The Fourth Geneva Convention relating to the Protection of Civilian Persons in Time of War also contains ample provisions for health care and medicine (Articles 3, 14, 16, 18, 19, 20, 23). Since this is a purely humanitarian convention, it adds weight to the argument that health care is a mainly social right. Like the ICESCR, the Convention on the Elimination of All Forms of Racial Discrimination allows states to make ‘distinctions, exclusions, restrictions, or preferences . . . between citizens and non-citizens’. Yet, as the Committee against Racial Discrimination advised in 2004, this does not permit wholesale marginalization of non-citizens. The Committee called on states to ‘remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health’ (CERD 2004: para. 29). While permitting restrictions on the right to work (para. 35), human rights law requires removal of the limits on non-citizens to education (para. 30) and health care (para. 36). The Lebanese Constitution also guarantees many rights regardless of citizenship, although its terms are somewhat ambiguous. The Constitution’s chapter 2 is entitled ‘The Rights and Duties of the Citizen’, which suggests an exclusion of foreigners. Its provision for equality (Article 7) is limited to citizens, because it states that ‘All Lebanese are equal before the law.’ However, its protection against arbitrary arrest and detention (Article 8) makes no such limitation, stating that ‘no one may be arrested . . . except according to the provisions of the law’. The Constitution, which does not deal with health issues, guarantees free education without restriction only to Lebanese (Article 10). Hence, the Constitution’s text is inclusive of all people in its general provisions, but restricted to Lebanese nationals in its more specific ones. Social and economic protections for refugees in Lebanon Human rights reports on refugees in Lebanon discuss social and economic rights rather inconsistently. Even with personal familiarity with refugee policy in Lebanon it is somewhat difficult for us to paint a coherent picture of

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what services are available in the educational and health fields. This lack of data is indicative of the degree to which health and education for refugees are dealt with by a diffuse group of individuals and organizations. There is no systematic strategy for delivering on refugees’ rights, and although many actors are involved, no one takes meaningful responsibility for coordinating the work. The only major recent report to address social and economic rights of non-Palestinians is the US Committee for Refugees and Immigrants’ World Refugee Survey 2005. According to this report (US Committee for Refugees 2005: 15), refugees in Lebanon had no right to work, which shifted the burden to the UNHCR: The MOU required UNHCR to provide assistance to refugees if their need constituted a public burden. UNHCR covered 85 percent of the health fees for recognized refugees, and some non-governmental organizations occasionally subsidized assistance and medical care to non-recognized refugees. A report published by Frontiers Association provides additional information about the legal framework governing access to health and education for refugees. According to this report, children can be registered for Lebanese schools regardless of their status in Lebanon, but school registration normally requires UNHCR papers or proof of legal residency (Frontiers Association 2005a: 6). The report also includes assessments by NGO and refugee leaders that school attendance wanes at higher grade levels. This is due to school fees rising in the higher grades and families feeling economic pressure to send their children to work (Frontiers Association 2005a: 7).

Who decides/who provides: the question of responsibility Mehta and Gupte (2003) argue that the decisive difference between a needs-based approach to refugees and a rights-based approach is that in a rights-based framework refugees are conceived as having entitlements guaranteed by law. Because they are guaranteed rights by law, under a rights-based approach refugees have greater agency by which they can make major decisions that affect their lives. By contrast, in a needs-based approach, the service providers define the refugee’s needs and how to meet them, making the refugee an essentially passive recipient. As a result, the interests of donors and humanitarian agencies are often determinative (ibid.). Humanitarian agencies often portray refugees as passive and helpless, rather than as active agents who can assert their own interests (Rajaram 2002: 247). A study of UNHCR operations in Guinea argues that the UNHCR has, at least until recently, not consistently involved refugees in evaluating programmes aimed at serving them (Kaiser 2004). In part, this resulted from a tendency to see

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refugees as groups rather than as individuals, with a corresponding concern that groups could not be sampled in a representative manner. Yet, beyond questions of methodology, UNHCR staff often do not perceive refugees to have a substantive role in programming decisions (ibid.: 198). The needs–rights dichotomy is just the first of two key variables that must be examined to understand challenges to refugee rights in the formulation of policy. It is equally essential to examine whether responsibility for forming refugee policy is assigned (or perceived to be assigned) to a host government, to the international community, or to private organizations. As Mehta and Gupte (2003) describe, one of the challenges to the notion of universal refugee rights is that rights are often connected to membership in a political community and to the concept of citizenship. This reflects the general assumption that the authority responsible for guaranteeing rights must be a government of a sovereign state. Yet, assignment of responsibility to sovereign states is often challenged in the case of refugees and other migrants. Refugee law is constructed as much to serve state interests as refugees. Hathaway (1990: 133) observes: Current refugee law can be thought of as a compromise between the sovereign prerogative of states to control immigration and the reality of coerced movements of persons at risk. Its purpose is not specifically to meet the needs of the refugees themselves (as both the humanitarian and human rights paradigms would suggest), but rather is to govern disruptions of regulated international migration in accordance with the interests of states. Literature analysing refugee policy in Africa has illustrated that states may use refugee law for their own interests in order to shift the responsibility for refugees from themselves to the international community. In the global South, responsibility for guaranteeing refugee rights is often assigned, de facto and in some cases de jure, to the United Nations (Verdirame 1999), so that the UNHCR sometimes wields more real power over refugee policy than nominally responsible governments (Verdirame and Harrell-Bond 2005). Yet, while it is quite powerful in some settings, the UNHCR is also hindered by a general lack of political weight vis-`a-vis governments, especially given that the UNHCR is dependent on governments for money and access (Loescher 2001: 138). A state can transform the legal category of refugees into a means of constraining refugees rather than protecting their rights by deferring responsibility for their protection to the UNHCR, an agency that may not be fully able to guarantee refugees’ rights. For example, in a study of the evolution of refugee policy in Sudan, Gaim Kibreab explains that Sudan developed a legal regime for determining refugee status in order to marginalize refugees from the rest of society (Kibreab 1996: 138–9).

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The assumption that the United Nations, rather than the host government, bears primary responsibility for anyone with the label ‘refugee’ has been formalized in Lebanon, similar to the case of refugees in Egypt (see chapters by Grabska and Ainsworth, this volume). For Palestinians, UN responsibility is a long-standing feature of a policy in which the UNRWA provides most essential services to refugees. For others, the 2003 agreement between Lebanon and the UNHCR imposes on the latter full responsibility for the socio-economic livelihoods of refugees and asylum seekers. As forced migrants often arrive or remain in a country with no legal status and because they are present ‘illegally’, states are more resistant to the idea that they should be able to claim rights of any kind. Lebanese law explicitly blocks access to health care for any foreigner who could obtain assistance from international agencies.5 Several private organizations (some of them based in refugee communities) seek to compensate for this gap through a range of inexpensive insurance plans and other services. The Lebanese Ministry of Health takes the position that refugees, and for that matter any illegal foreigners, have no rights to health care.6 In our interview, the Deputy Director General of the Ministry appeared uninterested in whether they have needs. From his perspective, the Ministry of Health should treat refugees for illnesses only when they pose a danger to the Lebanese public. In this way, the Deputy Director General of the Ministry of Health appears to take neither a rights- nor a needs-based approach. He did not see the exclusion of refugees as a means of enforcing immigration law; he commented, ‘We are not the General Security here.’7 But he believed that people who enter the country illegally should fall under the responsibility of humanitarian organizations rather than the government. He reported not being aware of any legal obligation by Lebanon to serve refugees, and that any such agreement would need to include the allocation of additional funds for the services. In our interviews in Lebanon, UNHCR staff view their agency’s policies on health and education as based on the principle that refugees have rights to health care and education, and that the state (as opposed to the UNHCR) should primarily be responsible for realizing these rights. UNHCR staff noted that refugee rights are not limited to the 1951 Refugee Convention, as we also argue in this chapter. Yet they also noted that Lebanon believes that social and economic rights are contingent on state resources. The UNHCR operates on the assumption that Lebanese authorities will serve refugees only if the UN pays the costs of the services. In other words, the UNHCR bears de facto responsibility for serving the refugees, although it considers that the government bears the de jure responsibility for their welfare.8 Lebanon represents a particularly extreme example of a state deferring responsibility for refugee policy to the international community (embodied by the UN). This shift of responsibility does not necessarily contradict a rights-based approach to refugee policy; one can imagine a world where

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UN protection would be the ideal. Indeed, one of the reasons that this phenomenon occurs in the first place is that UN agencies have a mandate to protect human rights. However, in the world as it exists, this transfer of responsibility to the UN runs up against some major obstacles. To start, human rights law (including the Refugee Convention’s Article 35) considers UN agencies as only supervisory bodies for human rights protection. Where the UN wields significant direct power over vulnerable individuals, it lacks reliable accountability mechanisms (Chimni 2005; Kagan 2006; Pallis 2005). Shifting responsibility to the UN can result in a diffusion of responsibility, leaving refugees effectively unprotected. In other words, rights-based approaches to refugee policy can be misused if there is no clearly responsible and accountable authority that has the actual power to guarantee refugee rights. In Lebanon, the hallmarks of this responsibility shift are the dual systems of refugee status determination and resettlement, both operated mainly by the UNHCR, though in some cases resettlement cases are processed by embassies without UNHCR involvement. The UNHCR handles the case-bycase application of the refugee definition, and then refers many or most recognized refugees to third countries for resettlement. Under the Lebanese MOU, the host government only allows refugees to remain for a maximum of twelve months while they wait for their cases to be processed. The process is in many ways highly legalized in form, in the sense that it assigns specific entitlements to people who meet the refugee definition. Both the UNHCR and resettlement governments apply the Convention refugee definition to determine eligibility. However, this shift in responsibility is highly problematic because the two key benefits offered to refugees – temporary protection from deportation and resettlement to a third country – are not actually under UN control. Although the UNHCR is responsible for processing cases and is the main agency relied on by the refugees, only the Lebanese government can decide not to deport foreigners, and only third country governments can decide to accept them for resettlement (Kagan 2006: 12–14). Despite these problems, the refugees we interviewed generally shared the Ministry of Health’s perceptions that responsibility for refugees should rest with the UN. The majority believed that the Lebanese government is not directly responsible for them because it lacks resources, because it has not signed the Refugee Convention, or because they have entered the country illegally. Some refugees did mention government responsibilities in different ways, at least for those refugees recognized by the UNHCR. Most said that the government does have a role in facilitating the work of the UNHCR and NGOs. It also has a role in allowing children into schools when necessary. A few said that Lebanon should develop an official structure to deal with refugees, yet others said there is no need for Lebanon to have a refugee policy. For them, government involvement was primarily a negative influence

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that produced fear of arrest, detention and deportation. All said that the main thing they wanted from the government is simply to be left alone. Despite the fact that refugees repeatedly mentioned lack of legal status and security as the source of their difficulties, when asked about solutions, none mentioned any efforts to advocate their rights to Lebanese government authorities. It is striking that refugees seemed to accept government incapacity rather easily, but simultaneously expected the UNHCR and NGOs to have extensive resources and potential power. In part, this observation parallels Kibreab’s findings that refugees perceive humanitarian agencies to be both unaccountable and possessing limitless resources (Kibreab 2004). This was reflected in refugee comments that they believe the UNHCR and NGOs to be essentially corrupt. Several said that the UNHCR and NGOs receive vast amounts of money, and some said that making money is the main driver of NGO policy. Refugees from Iraq believed that the UNHCR had benefited from the Oil-forFood Programme without passing on the resources to Iraqi refugees.9 Because they see the UNHCR as potentially capable of resolving their problems, the refugees saw malevolent motives behind failures to meet expectations. As the UNHCR is not able to meet all the needs of the refugees, many believed it wanted to make refugees fed up and, thus, give up asking for their rights; most believed that the UNHCR deliberately left refugees waiting for long periods in order to pursue a policy of eventually disregarding them. For the refugees, it was extremely important that the UNHCR and NGOs have mandates to assist them. The fact that they claim to act for the benefit of refugees appears to generate a greater sense of expectation and corresponding disappointment; the government, by contrast, openly denies it has any obligations to refugees. Refugees repeatedly stressed that the UNHCR speaks in their name, and therefore has a responsibility to assist them. Refugees also said that NGOs are responsible to serve them simply because they have organizational mandates that say they aim to assist refugees. The literature critiquing needs-based aid to refugees has long observed that refugees often adapt behaviours that are reactive to the aid systems that exist (Harrell-Bond 1987). Kibreab explored this problem in an insightful analysis of the reasons why refugees ‘cheat’ humanitarian agencies, for instance misrepresenting or withholding facts to gain more food rations or other services (Kibreab 2004). He observed that refugees are often much more willing to cheat large humanitarian agencies than each other. He noted that refugees have the same material interest to cheat each other as the agencies, but that they tend not to do so. The reason, he concluded, was that refugees had a different perception of both the circumstances and the legitimacy of aid agency policies. Refugees perceived each other as potentially hurt by cheating, and feared loss of social standing if they betrayed trust. Kibreab (2004: 24) explains:

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Firstly, to the refugees UNHCR, governments and NGOs are faceless entities which unlike human beings cannot be subject to harm, suffering or injustice . . . Secondly, the rules and norms that regulate the agencies’ activities incorporate none of the elements of the informal institutional rules which generally regulate access to, control over and use of resources among the refugees . . . Thirdly, most of the agencies are managed or in the refugees’ view ‘owned’ by people who share little or nothing with them in terms of ethnicity and in most cases religion . . . Fourthly, nearly all the refugees I worked with during the last two decades did not know how the agencies that assisted them raised the money or the commodities they distributed to refugees. The majority of people I talked to believed that the resources of the agencies were inexhaustible. These findings are echoed in our own interviews with refugees in Lebanon, who often believed that the UN and other organizations could do more if they wanted to.

Challenges to refugee mobilization and involvement in setting policy A number of studies have suggested that involving refugees in policy-making is a difficult ideal to achieve. The report of the 2005 International Association for the Study of Forced Migration noted, ‘One of the significant problems of the rights-based approach and the focus on refugee-led solutions arises when refugees do not have the resources to adequately defend their rights themselves’ (Collyer 2005: 251–2). In our interviews, refugees expressed two prevailing themes. First, they viewed the UNHCR as a powerful agency capable of solving their problems. Second, they saw themselves as not capable of doing a great deal to assert their own rights. Instead, to a great degree they transferred to the UNHCR and to some extent NGOs the responsibility to speak on their behalf. The refugees we interviewed universally reported that they were not involved in policy-making by the UNHCR or NGOs. They reported that lack of consultation went beyond a rights-based/needs-based dichotomy; they are not even asked what their needs are. From the refugees’ point of view, the organizations decide what to do based on what suits the organizations’ needs. They complained that the UNHCR is essentially inaccessible to them, with basically no one to talk to; they said that their calls or mail are not answered, and that the UNHCR does little to explain its policies and less to actually involve refugees in setting policy. Refugees reported a widespread sense of pessimism about the potential for them to advocate their own rights or interests in Lebanon. They attributed this to two factors. First, they said that they live under such stress in their effort to meet their daily needs and avoid arrest that it is difficult to devote

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energy to any joint advocacy efforts, although refugees did sometimes assist each other during times of personal emergency (such as health crises and arrests). They also said that previous efforts to form refugee committees had not been successful, sometimes because the refugees themselves did not use the committees effectively. Second, refugees repeatedly stated that they felt that advocating their rights to the UNHCR could backfire because it did not welcome their voices. For the refugees, the vast power that they perceived in the UNHCR put them in a vulnerable position and made them afraid to be open with the organization. One refugee confessed that he dared not raise his voice because he is illegally in the country, and the UNHCR could silence him if it wanted to do so. Others said that when refugees established community organizations, the UNHCR allowed them to function only so long as they did not raise criticisms or serious issues. As Kaiser has noted in a study of refugee policy in Guinea, the problem with refugee involvement in setting policy is not limited to UNHCR’s willingness to listen. When refugees do not feel secure, they are unlikely to mobilize to voice their concerns. When they are denied the right to work, their ability to support themselves and others is reduced. Refugees who are denied fundamental rights may nevertheless depend on others to advocate for them. Denial of rights can render refugees to see themselves as helpless and voiceless, which reinforces the way humanitarian agencies tend to portray them. But helplessness and dependency are not the only challenges to refugee advocacy. We would submit that refugee rights and refugee mobilization to speak on their own behalf are in fact quite distinct. As Paul W. Kahn has explained, law is by its nature a top-down institution, in which ‘authority flows from a hierarchical point, directing the behaviour of political institutions as well as ordinary citizens’ (Kahn 1999: 128). Indeed, human rights law often calls for a court or human rights enforcement body to cancel decisions by democratically elected governments, a process that is nothing if not top-down. There is no guarantee that human rights law actually represents the wishes of refugees; a rights-based approach could therefore actually lead to policies that refugees will oppose. UNHCR staff in Beirut highlighted the fact that refugees sometimes want things that are contrary to human rights principles. The UNHCR has sponsored a new community centre for refugees that is open daily and offers vocational and computer courses as well as meeting space. The centre organizes occasional workshops for refugees to discuss their difficulties and puts a special focus on programmes aimed at empowering women. Though it highlighted the role of the new community centre in increasing UNHCR contact with refugees, the UNHCR noted that in the area of promoting education for all refugee children and in paying close attention to the needs of women it was protecting rights while ignoring objections from other refugees. In our interviews, male refugees often objected to the focus

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on women, and some told us they would prefer to send their children to work rather than school. For the UNHCR, the fact that refugees complained about pro-women and pro-child policies seemed to operate as a justification for excluding refugees from policy-making. We do not doubt the desirability of increasing the role of refugees in setting refugee policy. But, similar to the argument put forward by Grabska in this volume, we do wish to question whether a rights-based approach on its own is a sufficient strategy to accomplish this. Needs-based and rights-based policies can both be set through top-down decision-making. The difference between them is that needs-based policies tend to be set by the interests and priorities of an institution, while rights-based policies are supposed to be set in compliance with an independent set of guiding rules and principles. Where refugees have the realistic option of asserting their rights against an institution, for instance by going to court, the rights-based approach can certainly increase refugees’ agency and voice on critical issues. But this does not mean that refugee rights and refugee law are always exactly what refugees would want.

Concluding remarks Understanding perceptions of rights and responsibility As a conclusion, we wish to propose an analytical matrix by which to understand the role and effectiveness of rights-based approaches to refugee policy. Our matrix is built on the premise that there are two key questions that must be asked. First, is refugee policy based on rights drawn from law, or is it based on the interests of policy-making institutions? Second, who is responsible for refugees (the government or the UN)? These two questions can be answered independently from each other. However, one of the challenges in rightsbased refugee advocacy is that the agency that is perceived to be responsible is not necessarily actually capable of living up to expectations. Our finding is that the assertion of refugee rights faces some resistance from government officials, and sometimes from UN agencies as well. However, we argue that challenges to rights-based refugee policy also come from two other directions. First, there is no clarity about who should be responsible for delivering refugee rights. Second, refugee involvement in policy-making is stymied by lack of security and the fact that refugees are often suspicious of humanitarian agencies’ motives. In actual practice, health and educational services to mostly recognized, non-Palestinian refugees in Lebanon are delivered by the UNHCR and NGOs in programmes that are managed from the top down and driven by resource and donor priorities. Many refugees are not covered by these services. In essence, the practice on the ground follows a needs-based model in which refugees are passive recipients of charitable services. Yet, this practical reality contrasts with the official viewpoints of the key stakeholders involved.

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In particular, the UNHCR endorses human rights rather than needs as the foundation for its programmes. Refugees expected the UNHCR and NGOs to protect their rights even though the agencies claimed to lack resources and the government in theory has more responsibility in international law. In general there is a mismatch between the institution that refugees and some NGOs see as primarily responsible for refugees (the UNHCR) and its actual capacity to meet expectations. In the matrix below, we can see the confusion and disagreement among different stake holders.

Policy set based on law-based entitlements (Rights-based)

UNHCR policy

Refugee perception

Actual UNHCR practice

Policy set based on institutional priorities without regard to law/entitlements (Needs-based)

Ministry of Health viewpoint State responsibility

UN responsibility

One of the notable results of our interviews is that nearly all respondents perceived that the UNHCR, rather than the government, is responsible in practice for refugees, although some NGO staff questioned whether this should really be the case. Yet both the UNHCR and NGO staff stressed the political and resource constraints on UNHCR activities. Refugees believed the UNHCR to be unwilling to implement their rights, while the agencies tended to describe their problems and inabilities. Either way, stakeholders saw refugee policy as a kind of trap, in which responsibility rests with an agency that either cannot or will not deliver on refugee rights. With this pessimistic view, agencies set policy based on their perception of their limited capacity in what amounts to a resource-driven, top-down decision-making mechanism. Rights are easily talked about, but rights-based approaches are not actually implemented.

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What can be done differently? While social and economic rights are in theory independent of refugee status, it is essential to address the ways in which they are linked in practice. Lack of legal status is often the central practical obstacle to refugees’ enjoyment of education and health care in Lebanon, and a cornerstone of refugee policy (or lack thereof). This is not because of a legal linkage per se, but because of the effect that non-recognition of status has on the perceptions of key decision-makers, and even on refugees’ own perceptions. When a state fails to recognize a foreigner’s status as a refugee, it signals to key actors that the state is deferring responsibility for the person’s social and economic situation on to others. Any rights-based approach to refugee policy must carefully assess the question of who is responsible for realizing refugee rights. Most international law assigns responsibility to sovereign governments. By neglecting to establish a legal framework for refugee protection, governments often manage to shift responsibility to the United Nations. The fact that the UNHCR has a mandate to protect refugees leads refugees to have very high expectations for the agency, but the UNHCR is not necessarily equipped to meet these expectations. At the same time, NGOs and human rights organizations often lack clarity about who should be responsible for refugee policy, especially in countries like Lebanon that have not ratified the Refugee Convention and where the UNHCR is responsible for determining whether a person is a refugee. Lack of clarity about who bears responsibility for different aspects of refugee policy is likely to produce lack of clarity about how to promote refugee rights effectively. In terms of refugees’ capacity to mobilize on their own behalf to improve their social and economic standing, legal status and basic security are essential issues. Lack of legal status often leads refugees to fear arrest, detention and deportation. This fear in turn impairs their ability to take actions that might improve their social and economic well-being, either through mobilization or through measures of self-help. Refugees who lack legal status are likely to be passive in the face of policies that leave them feeling frustrated and abandoned. The fact that social and economic rights often depend on obtaining legal status and basic security does not mean that social and economic rights are secondary issues. The deferral of responsibility from the state to other actors can produce a narrowing of rights and a rewriting of legal standards. In Lebanon, the UNHCR carries out its general mandate to promote refugee protection by trying to prevent the deportation of refugees and to secure their release from detention. The agreement between the UNHCR and Lebanon focuses on securing a very limited right of residence for refugees, and formalizes the UNHCR’s responsibility for refugees’ social and economic interests. This goes against the requirements of international treaties, which as we

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have discussed place responsibility on governments for the social and economic rights of ‘everyone’. It also effectively limits the concept of protection to the principle of non-refoulement, although the right to work, obtain education and access health care are also essential and are also guaranteed by international law. Notes 1. The research period was nine months and was completed in 2005. The study was funded by the Development Research Centre on Migration, Poverty and Globalization at the University of Sussex and was carried out in partnership with The American University in Cairo’s Forced Migration and Refugee Studies. 2. Although the UNHCR conducts refugee status determination, its procedures have several key gaps. Applicants do not have access to the evidence used in their cases, there is no independent appeal, and rejected applicants are not usually given reasons for rejection. 3. The field research was conducted with the assistance of two interviewers, Berna Habib and Farid Qamar, and with Berna Daou who compiled interview transcripts. 4. Refugee resettlement involves the voluntary agreement of a third country to allow a refugee to immigrate there, usually because he or she cannot remain in his or her first country of asylum. 5. Legislative Decree No. 16662, ‘Determining persons who have the right to be treated in public hospitals’, 18 June 1964, Article 7. 6. Interview with the Director General of the Ministry of Health, 7 October 2005. 7. Ibid. 8. UNHCR interview, 21 October 2005. 9. In fact, the UNHCR was not a part of the Oil-for-Food Programme.

References Ad Hoc Committee for the Support of Refugees and Asylum-Seekers (ACSRA) 2000–2, Activity Reports, Beirut, Lebanon. Chimni, B. S. 2005, ‘Cooption and Resistance: Two Sides of Global Administrative Law’, Working Paper 16, IILJ, available at http://www.iilj.org/papers/2005.16Chimni.htm Collyer, M. 2005, ‘The Search for Solutions: Achievements and Challenges’, Journal of Refugee Studies 18(3): 247–57. Committee on the Elimination of Racial Discrimination (CERD) 2004, ‘General Recommendation No. 30, Discrimination Against Non-Citizens’, 1 October 2004, available at http://www.unhchr.ch/tbs/doc.nsf/0/e3980a673769e229c1256f8d0057cd3d? Open document Frontiers Association 2005a, ‘What Rights Do Refugees Enjoy in Lebanon?’, Beirut, available from www.frontiersassociation.org Frontiers Association 2005b, ‘Falling through the Cracks: Legal and Practical Gaps in Palestinian Refugee Status’, available from www.frontiersassociation.org Frontiers Center 2003a, ‘Refugee Protection in Lebanon 2003’, available from www.frontiersassociation.org Frontiers Center 2003b, ‘Activity Report’, No. 7, Beirut. Harrell-Bond, B. 1987, Imposing Aid, Oxford: Oxford University Press. Hathaway, J. C. 1990, ‘A Reconsideration of the Underlying Premise of Refugee Law’, Harvard International Law Journal 31(1): 129–83.

Rights, Needs and Responsibility 177 Hathaway, J. C. 2005, The Rights of Refugees Under International Law, Cambridge: Cambridge University Press. Kagan, M. 2006, ‘The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination’, International Journal of Refugee Law 18(1): 1–29. Kagan, M. 2007, ‘Legal Refugee Recognition in the Urban South: Formal v. De facto Refugee Status’, Refuge 24(1). Kahn, P. W. 1999, The Cultural Study of Law: Reconstructing Legal Scholarship, Chicago: University of Chicago Press. Kaiser, T. 2004, ‘Participation or Consultation? Reflections on a Beneficiary-based Evaluation of UNHCR’s Programme for Sierra Leonean and Liberian Refugees in Guinea, June–July 2000’, Journal of Refugee Studies 17(2): 185–204. Kibreab, G. 1996, ‘Eritrean and Ethiopian Urban Refugees in Khartoum: What the Eye Refuses to See’, African Studies Review 39(3): 131–78. Kibreab, G. 2004, ‘Pulling the Wool Over the Eyes of the Strangers: Refugee Deceit and Trickery in Institutionalized Settings’, Journal of Refugee Studies 17(1): 1–26. Loescher, G. 2001, The UNHCR and World Politics: a Perilous Path, Oxford: Oxford University Press. Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-based Approaches in Forced Migration’, Working Paper T4, University of Sussex, Institute of Development Studies. Memorandum of Understanding (MOU) 2003, between the Director General of the General Security and the Regional Office of the United Nations High Commissioner for Refugees, Lebanon. Pallis, M. 2005, ‘The Operation of UNHCR’s Accountability Mechanisms’, Working Paper 12, New York University Institute for International Law and Justice. Rajaram, P. K. 2002, ‘Humanitarianism and Representations of the Refugee’, Journal of Refugee Studies 15(3): 247–64. UN High Commissioner for Refugees (UNHCR) 2006, Global Refugee Trends (provisional). US Committee for Refugees 2005, World Refugee Survey 2005, available from http://www.refugees.org/uploadedFiles /Investigate/Publications & Archives/WRS Archives/2005/guinea sudan.pdf Verdirame, G. 1999, ‘Human Rights and Refugees: the Case of Kenya’, Journal of Refugee Studies 12(1): 54–77. Verdirame, G. and B. Harrell-Bond 2005, Rights in Exile: Janus-Faced Humanitarianism, Oxford: Berghahn Books.

9 Indigenous Peoples, Displacement Through ‘Development’ and Rights Violations: the Case of the Orang Asli of Peninsular Malaysia Carol Yong Ooi Lin

Introduction While the previous chapters have engaged with the situation of people displaced due to conflict, war, persecution and political discrimination, the next two chapters examine the situation of those who are affected by development-induced displacement (DID) and displaced by infrastructure projects such as large dams. As discussed in the book’s introduction, DID is on the rise, affecting the lives of millions across the globe every year. Large infrastructure projects such as dams have far-reaching impacts on ecosystems and river basins, and notably on the millions of people who must be resettled. Existing dams have displaced around 40–80 million people worldwide in the last fifty years (WCD 2000), most of whom are indigenous and minority peoples. For example, of fifty large dams surveyed, 54 per cent (twenty-six cases) were found to resettle a majority of indigenous or tribal people and other ethnic minorities (Scudder 2005). Development-induced displacement has been the subject of scholarly (e.g. McCully 2001; Oliver-Smith 2002; Scudder 2005; Yong 2006a) and activist scrutiny (e.g. IRN1 ; The Corner House2 ; WRM3 ). Even major international donors and agencies have contributed a number of studies (e.g. Picciotto et al. 2001; World Bank 1994, 2004). Studies are also now linking DID, indigenous peoples and human rights issues (e.g. Colchester 1999; KHRP 2003, 2005; Yong 2006a). One of the seventeen thematic reviews of the World Commission on Dams (WCD), by far the most comprehensive review of large dams, focused particularly on indigenous peoples and ethnic minorities (WCD 2000; see also Mehta, this volume). Although eight years have passed since the WCD process, dams underway or planned continue to displace millions and induce widespread human rights violations, especially of vulnerable groups such as indigenous peoples. 178

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This chapter seeks to contribute to studies of DID, human rights and indigenous peoples, drawing on field research on the Orang Asli, the indigenous peoples of Peninsular Malaysia. I stayed with two dam-displaced Orang Asli communities – the Temuans and Jahais – over a period of twelve months in 2002–3, as part of my doctoral thesis fieldwork. Fieldwork took place in two Temuan villages, Kg. Peretak and Kg. Gerachi Jaya in Kuala Kubu Bahru where the Sungai Selangor Dam was located, and in one Jahai regroupment village in Banun, Gerik affected by the Temenggor Dam.4 The methods used to collect data in the three villages included in-depth interviews with key informants identified through snowballing, small group discussions and participant observation. I also did a rapid observation in adjacent Orang Asli villages in Kuala Kubu Bahru and Gerik and one Malay village in Banun, to compare the extent to which forced displacement and resettlement – from dams and other wider processes of development – have implications for the Orang Asli involved. Over the past twenty years of activism and research work, I have travelled extensively to villages in both east and west Malaysia where the indigenous peoples live. Over this time, it has become clear that indigenous peoples have been rapidly dispossessed of their land and resources, often through ‘development’ processes. It is for this reason that I chose to investigate the impacts of dams and forced displacement on the Orang Asli in Peninsular Malaysia and found that the problems that they encountered are similar to those faced by indigenous peoples all over the globe (see Colchester 1999; WCD 2000). The term ‘indigenous peoples’ has, strictly speaking, no accepted definitions. The absence of a universally accepted definition reflects, and also reinforces, a lack of consistency across nation-states concerning who can be counted as indigenous. Some Asian governments, for example, hold that the term ‘indigenous peoples’ does not apply to many groups within their boundaries who regard themselves as indigenous, or to non-state groups holding particular rights under international law such as the indigenous Jumma Peoples of the Chittagong Hill Tracts (CHT) (Barnes et al. 1995). A further aspect of this problem is that different Asian governments use different terms to identify the peoples concerned, such as ‘aboriginal tribes’ (Taiwan), bumiputera (Malaysia), ‘cultural minorities’ (Philippines), ‘minority nationalities’ (China), ‘scheduled tribes’ (India), and so on. Indigenous peoples, activists and the UN institutions, continue to deliberate on the meaning of the term ‘indigenous’, and ‘peoples’, as discussed shortly. In this chapter, indigenous peoples refer to specific groups of people with culturally distinctive identities, including marginalized ethnic groups within a country, whose territories and ancestral lands have been administratively annexed by invasion and colonization and who have been denied their human rights. Indigenous peoples continue to suffer from both discriminatory and assimilationist state policies, as also experienced by the refugees and IDPs discussed

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in the previous chapters of this volume. The chapter begins by presenting the situation of indigenous peoples, rights violations and forced displacement through the development process, particularly around dams. Next, the chapter examines indigenous rights as articulated in international laws, emphasizing the right to land and resources and provisions regarding forced relocation, and assesses whether these instruments are adhered to and applied to protect indigenous peoples’ rights. The chapter then draws on research in Malaysia to show how development processes, especially dam projects, that prompted the forced displacement and resettlement of the Orang Asli have undermined their rights to land and livelihood. The discussion highlights that, contrary to official views that development projects for the Orang Asli take place to ‘modernize’ them, ‘development’ is used to appropriate Orang Asli traditional territories. My research reveals that there is a need to critically examine the process of ‘development’ and displacement arising due to dam construction, as the Orang Asli generally do not get the benefits out of these so-called development projects. Land is pivotal to Orang Asli existence, identity and well-being. Thus providing security of tenure to Orang Asli lands remains crucial, and the right to access, use and manage their resources has to be guaranteed in development policies that are committed to rights-based approaches. Furthermore, the Orang Asli, as the indigenous peoples of Peninsular Malaysia and elsewhere, are citizens of Malaysia. They are thus entitled to the protection of customary systems of land and resource use and have the legitimacy to demand the same rights and consideration as other groups of citizens without discrimination, as enshrined in international and national laws. But this can only take place if there is recognition of Orang Asli existence and rights in all aspects of social, economic, environmental, cultural, political and educational practices.

Indigenous peoples, forced displacement and rights violations For several centuries, indigenous peoples have struggled against having their lives, land and resources controlled through military conquest or direct colonization. This began in colonial times with colonialists dispossessing indigenous peoples by plundering, occupying or forcing them off their traditional territories, enforcing the laws and practices of the dominant European cultures, and subjecting them to previously unknown illnesses, for example (Burger 1990). Indigenous women experienced an additional vulnerability to sexual violence and violations (Vinding 1998). The colonizers justified disregarding the sovereignty and rights of indigenous people by discursively constructing their societies and cultures as primitive and undeveloped (Apffel-Marglin 1998; Shoemaker 1995).

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The Orang Asli of Malaysia also experienced this kind of treatment under colonialism.5 The British colonizers considered the Orang Asli – then known as aborigines – as ‘backward’ and ‘uncivilized’ forest people living in isolation: ‘the wild tribes’. Such descriptions were used either to justify civilizing the ‘savages’ through European education and Christian proselytizing, or to constrain Orang Asli customary practices. During the Malayan Emergency (1948–60), when the colonial government was at war with the communist insurgents, the Orang Asli were forcibly evicted from the forest and put inside guarded forts, which the colonizers considered safe from the communists. Harper (1998: 946) contends that ‘The experience of war was a revolution on the social life of the orang asli . . . it jeopardized the subsistence they drew from the forest and exposed them to new forms of political exploitation.’ In the aftermath of colonialism, processes of displacement, dispossession and marginalization continued (Howitt et al. 1996), under such guises as ‘modernization’, ‘national integration’ and state-directed social change. Indigenous peoples and ethnic minorities in many parts of the world continue to face various forms of discrimination, cultural oppression, economic deprivation, physical oppression, forced assimilation and genocide (Zhu and Blackford 2005). As Brody (2002: xiv) acknowledges: Indigenous peoples for the most part live in poverty and endure a sense of profound cultural and spiritual loss, watching their resources, the homes of their gods – be they forests, mountains, fish or the earth itself – being used to make others wealthy . . . Alongside losses of land are parallel losses to other sources of wellbeing: languages, belief systems, links between generations and self respect. Development projects – dams, logging, mining, highways and airport projects, tourism development, thermal and nuclear plants, military bases, oil pipelines, shrimp farming and commercial plantations, to name some examples – impinge on indigenous peoples’ rights for a number of reasons. Such projects have been demonstrated repeatedly to be unpromising for indigenous peoples, who must pay the inevitable price of forced resettlement (Colchester 1999; WCD 2000). In addition to losing land rights, livelihoods and resource bases, which are often undervalued even if compensated, resettled people also lose their social networks and control over development according to their own needs and strategies. Although development is intended to benefit the majority, the common occurrence is that only a few reap the benefits and indigenous people are rarely among those that do.6 Today, many Third World governments pursue development models founded on the same assumptions as the colonizers: that indigenous peoples

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are backward and need to be modernized. In Turkey, for example, Morvaridi here in this volume and elsewhere (2004) argues that development elites and planners perceive Kurds’ ethnic identity to be amongst the traditional obstacles to development, but that this can be overcome through the course of ‘modernization’. When displacement results from development projects, it is often justified as a sacrifice for the greater public good, the costs of which to those affected can be offset by compensation (Dwivedi 1999). This is also shown in the case of displacement caused by the Narmada Valley Dam project presented in this volume by Lyla Mehta. In practice, however, compensation processes are frequently deeply flawed, and the displaced can often be ‘victimised yet again by the arbitrariness of a compensation process that was supposedly established to help them’ (Schleifer 2007; see also the chapters by Morvaridi and Mehta, this volume). Hirsch argues that dam compensation usually fails because of the reluctance of state and dam proponents to accept that there are multiple levels of sovereignty over the resources on which dams encroach. In addition: Resource values destroyed by dams are very difficult to replace in standard compensation and resettlement procedures, given the limited role of affected people in planning and the reductionism that simplifies complex aspects of culture, settlement, local history and relations between people and their resource base into a monetary figure or a settlement program designed by external consultants. (Hirsch 1996: 221) What can be done about legal and restitution issues of forced displacement resulting from development processes? Do legislative and international regimes provide an effective framework for recognizing indigenous rights? The following section will attempt to address these questions.

Indigenous peoples’ rights in international instruments The concept of indigenous peoples’ rights was first adopted by the International Labour Organization (ILO), which began to study the condition of indigenous workers as early as 1921.7 Until the 1970s, the ILO was the only member of the UN system to have adopted the first international legal instruments to protect the rights of indigenous and tribal peoples, in large part due to the widespread exploitation of indigenous labour by dominating cultures then, as now. The two ILO Conventions most relevant to indigenous peoples are ILO 107 and ILO 169.8 The Indigenous and Tribal Populations Convention (ILO 107) was adopted in 1957, with explicit emphasis on integration and assimilation of indigenous peoples into the states in which they live, with certain protective measures. The prevailing bias of the 1950s was that indigenous and tribal peoples were ‘backward’

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societies which could not survive in their existing form, and which therefore had to be brought into the mainstream through integration and assimilation. Such paternalistic approaches were criticized and rejected by many indigenous peoples, not least because they obscured ideas for protective measures and were rooted in a lack of respect for indigenous culture and identity. In 1989, the ILO revised and replaced the earlier policy with Convention 169 on Indigenous and Tribal Peoples, with a number of provisions that sought to support indigenous and tribal peoples’ concerns relating to land rights, resettlement, development projects, cultural and other issues (Kingsbury 1995). Thus, for example, Article 16 states that indigenous and tribal peoples cannot be relocated from their lands except in accordance with the principle of free, prior and informed consent. Despite these provisions, however, the WCD found more than ten years later, inter alia, that • Indigenous and tribal peoples and vulnerable ethnic minorities have suffered disproportionate levels of displacement and negative impacts on livelihood, culture and spiritual existence. • Among affected communities, gender gaps have widened and women have frequently borne a disproportionate share of the social costs and were often discriminated against in the sharing of benefits.9 There are substantial deficiencies and inadequacies in ILO 169, particularly concerning language and provisions on self-determination, lands, territories, resources and relocation, consent and meaningful indigenous participation in the revision processes (MacKay 2003). Further, its implementation leaves much to be desired since it is a procedural convention recognizing only procedural, not substantive, rights.10 Moreover, states are not obliged to conform. What happens when there are contradictions between international standards and national law, between indigenous peoples’ interests and national or private development? Generally there is lack of political pressure on governments and project authorities to comply with international norms: negative social attitudes towards indigenous peoples, as groups and as individuals, often works in favour of processes to ‘modernize’ them. In some countries where indigenous peoples have expressed a desire to do so, indigenous peoples’ organizations have supported the ratification of ILO 169, despite its limitations, because ratification brings access to ILO’s complaint and oversight mechanisms in which indigenous peoples can raise concerns about their human rights situations and challenge state actions or policies (MacKay 2003). Within the UN framework, indigenous peoples received considerable attention when in 1971, a Special Rapporteur, Jos´e R. Martinez Cobo, was appointed for a study on the problem of discrimination against indigenous

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populations, recommended by the Sub-Commission on Prevention of Discrimination and Protection of Minorities. 11 One of the important milestones of the Cobo study was the working definition on ‘indigenous peoples’, now widely adopted by indigenous and non-indigenous groups alike, which reads (cited in Colchester 1999: 5): Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. Indigenous peoples’ issues further advanced with the creation of the Working Group on Indigenous Populations (WGIP) in 1982. The WGIP accepted the Cobo definition of an indigenous person as identified through the following criteria:12 (a) priority in time with respect to the occupation and use of a specific territory; (b) the voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) self-identification as well as recognition by other groups, or by state authorities, as a distinct collectivity; and (d) an experience of subjugation, exclusion or discrimination, whether or not these conditions persist. In 1985, the WGIP drafted the Declaration on the Rights of Indigenous Peoples (E/CN.4/1995/2). Over the following twenty years, intensive negotiations transpired between indigenous peoples and nation-states to seek recognition and protection for indigenous peoples’ rights. Indigenous peoples demanded ‘the right to autonomy and self-determination’ and, by virtue of this, the same rights as applied to non-indigenous peoples in accordance with the Charter of the UN, the Universal Declaration of Human Rights and international human rights law. The Declaration on the Rights of Indigenous Peoples claims rights, inter alia, to be free from any kind of discrimination, to freely express their distinctive identities within indigenous collectives, to determine their own political, social, economic and cultural status and institutions, and to negotiate and agree upon their role in the conduct of

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public affairs. It also recognizes the principle of free, prior and informed consent when policies, programmes and development projects affect indigenous peoples, and includes provisions that prohibit any action which dispossess indigenous peoples of their lands, territories or resources and any form of relocation which may violate or undermine their rights. With its decision of September 2007, the United Nations General Assembly, the highest body of the United Nations system, adopted the United Nations Declaration on the Rights of Indigenous Peoples.13 This is a significant step in the history of indigenous peoples’ struggles. The Declaration, as Les Malezer, Chair of the Global Indigenous Peoples’ Caucus points out, does not represent solely the viewpoint of the United Nations, nor does it represent solely the viewpoints of indigenous people. ‘It is a Declaration which combines our views and interests and which sets the framework for the future. It is a tool for peace and justice, based upon mutual recognition and mutual respect.’14 Another important aspect is that nation-states will have the legal obligations to recognize and respect rights accorded to indigenous peoples on the international stage – this is a substantive right that requires the state to produce results (MacKay 2003). But the adoption of the Declaration is only a first step to a change in attitude of the international bureaucracy. Notwithstanding this positive development, it is hard to predict whether the respective states will formally recognize and establish systems for the furtherance of indigenous rights, or whether their votes are merely another stage in an ongoing historic session. It is an undeniable fact that the rights of indigenous and minority peoples continue to be at risk, as I argue below, of efforts by the state to manipulate or exercise control over their traditional territories and resources, or to redefine their property regimes. Traditionally, indigenous and minority peoples inhabit resource-rich areas, which are much sought after and, in many instances, claimed through the ‘legitimacy’ of existing colonial and postcolonial states (see Brody 1981; Howitt et al. 1996). Historically, and even to this day, the prevailing notion of the dominant groups is that indigenous peoples still are ‘backward’ peoples that must inevitably give way to progress (WRM 2005: 10–11; Yong 2003, 2006a, 2006b). Thus indigenous peoples are often the targets of intervention on the part of dominant groups. In the process, indigenous communities become marginalized and suffer increasingly greater economic disparity in relation to the ‘others’ (Nicholas 2000, 2002). When this happens, women often bear the brunt of difficulties, as they are already burdened due to existing gender inequalities in the family, community and society. Thus they have diminished opportunities to influence the use, management and control over their traditional territories and the resources found therein. In Malaysia, like in other contexts, patriarchal tendencies and male biases within the state and in Orang Asli society itself

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combine to marginalize women in relation to land and other entitlements (Yong 2006a: 80–1). Crucially, gender is often overlooked in current development frameworks. Gender determines the way women and men relate to each other and governs how society – the state, the family, the market – assigns power, roles, responsibilities, resources and rights to women and men (Moore 1988; Ng 1999). I have noted elsewhere (Yong 2006a) that the assumption of ‘woman’ and ‘man’ as homogeneous groups with women typically subsumed under the general category of ‘people’ has had consequences for access to and control over resources, earnings from forest products, access to leadership positions, power, wealth and influence. Among the existing UN declarations, only one deals specifically with women’s issues – the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Hence more effort is required to fully recognize and respect the status and rights of women in particular amongst indigenous and minority peoples, in national and international laws. Increasingly, there is also a need to appeal to the right to development. The Declaration on the Right to Development adopted by the UN General Assembly in 1986 can potentially safeguard indigenous peoples so that they are no longer trampled in the name of ‘development’, but only if states accept the responsibility vested in them in Article 2, Clause 3, which reads: States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the wellbeing of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom. In reality, however, there are conflicts between governments and indigenous peoples regarding what ‘national development’ or ‘development’ might mean. These conflicts of interest raise questions over whether universal frameworks can adequately guarantee the rights of indigenous peoples, and over what ‘development’ with the free and informed consent of indigenous peoples might look like. There is also a concern that some powerful states can generate pressure on the UN to influence how high indigenous peoples’ issues rise on the UN agenda. In addition, not all states have ratified the binding agreements such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on the Elimination of All Forms of Racial Discrimination which might be drawn on to protect indigenous peoples’ rights. This also affects other displaced groups, such as refugees and IDPs, as the previous chapters by Kibreab, Grabska, Trad and Kagan demonstrated; in the following chapter Mehta highlights how the Indian state constantly

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violates its human rights commitments to the largely tribal population in India’s Narmada Valley.

Indigenous peoples of Malaysia The dominant ethnic groups in Peninsular Malaysia are Malays, Chinese and Indians. In Sabah and Sarawak, the natives, respectively known as Anak Negeri and Dayak and Orang Ulu, form the majority population. Nationally, however, Sabah’s Anak Negeri and Sarawak’s Dayak and Orang Ulu groups are perceived as ethnic minorities because they have been categorized together with the Orang Asli as bumiputera and they account for just 11.8 per cent of the national population.15 The Orang Asli comprise just 0.5 per cent of the national population. They are identified for administrative purposes by three distinct categories – Negritos, Senoi and Aboriginal-Malays – and further divided into eighteen ethno-linguistic subgroups. The smallest group is the Negritos, just 3 per cent of the Orang Asli population. The Senoi are the largest group with about 54 per cent of the Orang Asli population, followed by the Aboriginal-Malays at about 43 per cent (JHEOA 2001). In defining who the indigenous peoples are, the Malaysian government coined the term bumiputera – son of the soil – to distinguish the Orang Asli, the natives of Sabah and Sarawak, and ethnic Malays from non-Malay ‘others’ like the Chinese and Indians.16 Largely conceptualized and understood as meaning ‘(ethnic) Malay’, ‘an aborigine’ and ‘a native’, bumiputera status provides for preferential treatment in education and training, employment and business opportunities, and ownership or control of resources such as land (Mohamed Suffian 1972 cited in King 1995: 290). The Federal Constitution (Article 153) has a legal definition of ethnic Malays and the natives of Sabah and Sarawak concerning special rights and privileges such as socio-economic benefits, reservation of quotas for permits, scholarships, etc. While there is general agreement that the Orang Asli are also bumiputera, the exercise of special rights and privileges for the Orang Asli as provided by the Constitution is not clear. In fact, the Orang Asli are socioeconomically far behind the dominant category of bumiputera, the ethnic Malays, and, to a lesser extent also the natives of Sabah and Sarawak. The paradox here is that, despite being Malaysian citizens, the widespread lack of understanding of Orang Asli social, political and cultural life has entrenched an attitude among many government agencies, decision-makers and planners, politicians and others that the Orang Asli are ‘nomadic, backward and uncivilised people’ wanting modernization (Edo 1998: 2). This is very often the reason for denying the Orang Asli their claims to equal rights as accorded to the ethnic Malays or the natives of Sabah and Sarawak. Largely, this is because the label bumiputera is being interpreted restrictively, determined partly by the expressed policy of ‘integrating the Orang Asli with

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the mainstream society’, specifically with the ethnic Malays (Nicholas 2000; Winzeler 1997; Yong 2006a). Besides, the very fact of having a specific department – the Jabatan Hal Ehwal Orang Asli (JHEOA) – to govern them has left many Orang Asli feeling further alienated from the current dominant or majority populations. The distribution of rights, privileges and opportunities to the Orang Asli is state-directed rather than arising from substantive rights born of the state’s recognition of and respect for the rights of Orang Asli as citizens. As Dentan (1997: 129) remarks, ‘Orang Asli are the forgotten Malaysians.’ Malaysia has ratified the Declaration on the Right to Development and the Biodiversity Convention (CBD), among others, although it placed certain reservations.17 However, it has not yet ratified the ILO Conventions 107 and 169, raising the question as to whether it does fully recognize indigenous peoples’ rights. As noted above, the status of the Orang Asli is usually subordinated to that of the ethnic Malays and, in many respects, is less recognized than that of the natives of Sabah and Sarawak. In fact, Orang Asli traditional territories have often been contested by the Malay ruling class, because the latter have perceived themselves historically18 and today as having a special status and supremacy status over the Orang Asli. Kessler (1992: 139) has argued that the Malays claimed themselves as indigenous people and therefore felt they were ‘entitled to make theirs the nation’s definitive, paradigmatic cultural identity’. Since the 1980s, there has been a conscious effort by the government to regard Orang Asli as Malays and Muslims, with conversion to Islam as a benchmark. The purpose, on the one hand, is to assimilate the Orang Asli into the mainstream, while, on the other hand, legitimizing the transfer of political control over the Orang Asli lands and resources through the JHEOA. Consequently, the state is able to appropriate Orang Asli land for implementing dams and other mega projects.

The Orang Asli in Malaysia’s development Malaysia’s landmass is approximately 32.86 million hectares, incorporating eleven states in Peninsular Malaysia and Sabah and Sarawak on Borneo Island. Its population was estimated as 26.13 million in mid-2005,19 with 80 per cent in Peninsular Malaysia and 20 per cent in Sabah and Sarawak. The Orang Asli remain the most marginalized and poorest peoples in Malaysia. The Malaysian Human Rights Commission’s (Suhakam) census of 1997 revealed that 81.45 per cent of 18,234 Orang Asli families were categorized as poor and 48.85 per cent were considered the hardcore poor.20 The report also stated that 49.4 per cent of the Orang Asli community had no electricity supply, while 53 per cent had no clean water supply. In comparison, the general incidence of poverty in Malaysia declined from 16.5 per cent in 1990 to 5.1 per cent in 2002, while the incidence of hardcore poverty

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dropped from 3.9 per cent in 1990 to 1.0 per cent in 2002. The state’s intention to ‘modernize’ the nation and its people, purportedly in pursuit of gaining ‘developed nation’ status by the year 2020, has invariably neglected the Orang Asli except when late-arriving peoples like the Malays, the British and the independent Malaysian state coveted their resources and/or their political status (Nicholas 2000). The Malaysian state intensified control over the Orang Asli by introducing various policies and programmes ostensibly for Orang Asli development. These included protectionist efforts against communist infiltration, land control legislation and practices including gazetting lands as Orang Asli areas and reserves without providing security of tenure or protection against acquisitions and relocations, and promoting tourist resorts and activities. Apart from regroupment schemes, the state has also pursued large dam projects which have caused cultural and socio-economic disruption to Orang Asli communities as well as appropriating their traditional lands, and which epitomize the expropriation of Orang Asli territories in the guise of their ‘modernization’. Further, Orang Asli rights have been mandated to a minister in charge of Orang Asli matters and a ‘Special Agency’ exclusively for the administration of the Orang Asli, the Department of Aboriginal Affairs. This department was created in 1954, later renamed in Malay the Jabatan Hal Ehwal Orang Asli (JHEOA), and has since been reorganized several times. The JHEOA directorgeneral administers rights over Orang Asli lands, and until today, no Orang Asli has held this position.21 In 1961, the government adopted the ‘Statement of Policy Regarding the Administration of the Orang Asli of Peninsular Malaysia’ to closely supervise the security of the Orang Asli, particularly those remaining in the jungle area (Hooker 1991). In 1993, the JHEOA replaced this policy with a ten-point strategy, one of which was to encourage Orang Asli in interior areas to accept Regrouping Schemes as an effective means of improving their living standards and turning their settlements into economically viable units. Nicholas (2000: 138) contends that much of this is mere rhetoric because the state still perceives the Orang Asli to be ‘homogenous, discrete aggregates that can be moved about, or rearranged, to meet economically-determined or politically-designed objectives’. Orang Asli status and land rights in the national context Until the 1950s, prior to using the term ‘Orang Asli’ (meaning ‘first peoples’) the British colonialists applied derogatory terms such as sakai (slaves). The colonial government was then at war with communist insurgents. The insurgents had referred to the Orang Asli as ‘Orang Asal’ meaning ‘original peoples’ – the positive meaning of the word was aimed at gaining Orang Asli support in terms of food, labour and intelligence. Paralleling the insurgents, the colonial government adopted a less derogatory term so that the Orang Asli would not support the communists. The colonial government

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also enacted the Aboriginal Peoples Ordinance, 1954 (amended in 1967 as the Aboriginal Peoples Act and further revised in 1974) wherein Section 3(1) defines an Orang Asli as:22 (a) any person whose male parent is or was a member of an aboriginal ethnic group, who speaks an aboriginal language and habitually follows an aboriginal way of life, customs and beliefs, and includes a descendent through males of such persons; (b) any person of any race adopted when an infant by an aborigine, who has been brought up as an aborigine, habitually speaks an aboriginal language, follows an aboriginal way of life, customs and beliefs and is a member of an aboriginal community; or (c) the child of any union between an aboriginal female and a male of another race, provided that the child habitually speaks an aboriginal language, follows an aboriginal way of life, customs and beliefs and remains a member of an aboriginal community. Although this constituted a distinct definition of an Orang Asli, in practice, however, the Orang Asli lack the power to exercise their rights or assert their self-identity in terms of economic, cultural, spiritual and political development. This is due to a culmination of historical and other factors that have ‘subjugated’ the Orang Asli. For one, the Orang Asli have become exceedingly dependent on the JHEOA, and Section 3(3) of the Aboriginal Peoples Act notes that ‘Any question whether any person is or is not an aborigine shall be decided by the Minister.’ Furthermore, the prejudice embodied in historical descriptions of the Orang Asli as ‘jungle dwellers’, ‘backward’ and ‘na¨ıve’ (Gomes 2004: xiii) remains to this day, and thus the Orang Asli continue to be treated as inferior to the rest of the Malaysian population. Moreover, in Malaysia, land matters are under state jurisdiction. For the natives of Sabah and Sarawak, the state can circumscribe the rules governing customary land rights or use their powers to oppose native titles and rights, whilst in Peninsular Malaysia, the federal government wields wider power than the state level governments. As such, it is federal, not state, development policies for developing Orang Asli land that dictate the terms of Orang Asli access and rights to their lands. As exemplified in the Sungai Selangor Dam project, elaborated later, the state may declare (gazette) any area predominantly or exclusively inhabited by Orang Asli to be an Orang Asli reserve, in which case others cannot appropriate it. Conversely, if the state wishes to acquire the land, it can revoke this status and the Orang Asli must move with no obligations to compensation or substitute land (Edo 1998; Nicholas 2000; Williams-Hunt 1995). This centrally driven ‘decision-making’ has the undisguised aim of appropriating Orang Asli land and resources. This fits Scott’s analysis of ‘state simplifications’ for the purpose of ‘legibility and control’ and ‘forms of knowledge and manipulation

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characteristic of powerful institutions with sharply defined interests’ (Scott 1998: 11). Winzeler (1997: 2) argues that: In European colonial regimes or present-day countries . . . ethnic and tribal minorities often tend to occupy regions that contain valuable resources – land, minerals, timber and water – which are considered necessary for the overall development of the country. In so far as indigenous peoples, who are also often an important source of labour for the extraction of resources, object to such developments, their interests are regarded (at best) secondary to what metropolitan governments see as the greatest needs of the national society.

‘Development’ consequences and violations of Orang Asli rights As seen above, the British colonialists, taking on for themselves the role of protectors of the ‘primitive’ and ‘backward’ Orang Asli who were in need of government paternalism had, among other activities, legislated the Aboriginal Peoples Ordinance and a special agency to administer the Orang Asli. Additionally, Orang Asli scattered in the jungle were mass relocated to guarded compounds and later to resettlement and regroupment schemes. In order for the state to monitor the movements of the Orang Asli and their support for the communists, the regroupment schemes were made more ‘legible’ (Scott 1998) under the guise of the communist threat. Thus, thousands of Orang Asli were herded by the military or police into convoys of trucks and transported to large camps behind barbed wire (Dobby 1952; Noone 1972). Homes, farmlands, crops and food stocks were destroyed and bombed. Hundreds of Orang Asli died from the physical and psychological shock; many simply lost the will to live (Hood 1984). Others attempted escape or sought protection from the communists or relatives. After the British left, the post-colonial government preserved the model of a paternalistically benevolent state calling for the ‘protection’ of the Orang Asli. Through strategies including integration, assimilation and regroupment, the government successfully asserted control over the Orang Asli.23 The resurgence of the insurgents in the 1970s helped fuel the ‘necessity’ for regrouping the Orang Asli, and the military recommended establishing twenty-five schemes under the Titiwangsa Regroupment Programme to be implemented over ten to fifteen years from mid-1970 (Jimin 1978) and the relocation of about 24,567 Orang Asli scattered in the interior of Perak, Kelantan and Pahang’s forests (Itam Wali 1993). The regroupment of Orang Asli, often without their prior and informed consent, is an ideal instrument from the perspective of the state to ‘develop’ the Orang Asli. As such, the Malaysian regime, with its own interpretation of universal frameworks, as described above, has the power to depart from the

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obligations assumed under the various conventions and instruments, particularly the protection of indigenous peoples’ rights, the right to development and to sanction forced relocation by ‘development’ projects. The unwillingness of the Malaysian regime, despite numerous calls from Malaysian civil society, to ratify ILO 169, for example, further raises questions as to whether the behaviour of the Malaysian government and the development options taken conform with international laws and decisions, in which indigenous rights are enshrined. Moreover, the judgement of the High Court in an Orang Asli case – the Adong bin Kurau & Ors v Kerajaan Negeri Johor (Johor State Government) & Anor [1997] 1 MLJ 118,24 clearly states that: . . . the Aboriginal peoples’ rights over land include the right to move freely about their land without any form of disturbance or interference and also to live from the produce of the land itself. Indigenous peoples often occupy resource frontiers that are increasingly coveted by the state and development corporations. The majority are forcibly relocated from their lands and homes where projects of the state and other powerful vested interests can be implemented, resulting not only in personal losses but also in violation of the community’s customary land and ancestral rights (Ghai 1994). As Howitt et al. (1996: 1) argue, ‘Tensions between indigenous peoples and modern nation states take many forms, but none is quite so definitive as the question of resource sovereignty.’ I now illustrate these issues by examining dam-based displacement and the Orang Asli.

Dam projects undermining Orang Asli rights to land and livelihoods The number of dam-displaced people in Malaysia cannot be ascertained due to unconfirmed data, but several major dams have been built thus far, invariably affecting indigenous communities. In Sarawak, the Batang Ai Dam displaced around 3,000 indigenous Ibans in 1981, whilst the Bakun Dam affected over 9,000 indigenous people despite it being shelved and revived several times since 1989. Sabah’s Babagon Dam affected four indigenous Kadazandusun villages, one of which was totally submerged affecting some 200 persons. The peninsula’s Orang Asli have been affected by the Kenyir, Linggiu, Nenggiri, Sungai Batu, Sungai Selangor and Temenggor Dams, to mention only a few. The resettlement experience of those in the way of dams is not a happy one (Yong 2003). Yet, the current development agenda has identified 260 suitable dam sites and 47 more dams needed in Peninsular Malaysia by 2010 to meet the power demands of urban centres and industry (Tan 1997). Clearly, indigenous peoples both living within and depending on ancestral lands and river basins where potential dams will be built are increasingly at risk. Despite

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the growing controversies surrounding them and the several alternatives that have been proposed (see WCD 2000), dams such as the Temenggor in Gerik and the Sungai Selangor in Kuala Kubu Baru continue to be the preferred option for water resource and energy development rather than sustainable alternatives like gravity pumps or solar technology. This is because such projects in Malaysia, India (see the next chapter) and elsewhere continue to symbolize modernization and progress and are promoted by political and business elites as the only way to increase the generation of hydro-electric power to support the demand for electricity and water supply from industries and the urban populations. Thus, the two dam projects presented here reveal that ‘development’ imposed on the Orang Asli prioritizes state and private economic interests over Orang Asli interests. The two different dam projects have an interval of almost twenty-five years. The 127-metre Temenggor Dam resettled nearly 1,000 Orang Asli, mainly the Jahais, a subgroup of the Negritos, and over 500 ethnic Malays, while the 110-metre Sungai Selangor Dam displaced 339 Temuans, a subgroup of the Aboriginal-Malays. Whilst the justification is that development projects are needed to modernize the Orang Asli into the mainstream, the state also maintains that this minority population needs to make sacrifices for the benefit of the majority population and the nation. Orang Asli are subjected to changes even without resettlement, but resettlement processes accelerate and exacerbate changes that are superimposed on the communities through dominant values ascribed to land claims and property. It is apt to apply Scott’s analysis that state development projects continue to be replicated despite their flawed processes because of an ‘ideology of high modernism’. The quest to consolidate control over its territory and power drives the state to devise numerous schemes intended to improve the human condition, but which end up ‘tragically awry’ (Scott 1998: 4). The Sungai Selangor Dam project clearly showed how it was implemented to enable state control over the Orang Asli. Not only did the Selangor government award the thirty-year concession for the Sungai Selangor Water Supply Scheme Phase 3 (SSP3) to Syarikat Pengeluar Air Sungai Selangor Sdn Bhd (SPLASH)25 without open tender, but it also approved the project despite forty-five conditions in the Environmental Impact Assessment (EIA). SMHB, an engineering consulting firm appointed by the SPLASH consortium, conducted the EIA. SPLASH successfully used the media to launch a sophisticated public relations package to create the general belief that people needed the Sungai Selangor Dam to supply water and to avoid the recurrence of the 1998 water crisis in the metropolis of Klang Valley.26 This was possible due to adequate resources, support of the Selangor state government and a savvy website for media publicity. Moreover, the state and SPLASH had asserted that the water demand for 2005 was projected as 3,858 mld while the existing water supply system could only produce about 3,565 mld (SOSS 1999), and that this justified the building of the Sungai Selangor Dam.

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Two Orang Asli villages, Kampung Gerachi and Kampung Peretak, were displaced and the affected Temuan were squeezed into restricted and generally low-potential areas in the new resettlement sites (Nicholas 2000; Rosli 2001). An area of 595.25 hectares, encompassing the two villages, had been approved for gazetting as Orang Asli reserve in 1965. However, in 1997, the Selangor government claimed it as state land to legitimize the construction of the dam. The state dismissed the fact that it was reserve land on the grounds that it was ‘never approved for gazetting in the first place’ and later on as ‘a typographical error’ (Nicholas 2000: 35). Upon resettlement, each family in Kampung Gerachi was offered only 2.4 hectares of land, and in Kampung Peretak 0.4 hectares, as compensation by the Selangor state government (fieldwork data): a total of 104.4 hectares. The Temuans lost up to 70 per cent of their traditional land as a result of their displacement (Meng 1999; Nicholas 2000). Traditional lands and forests play many crucial roles in Temuan household livelihoods, as with other Orang Asli subgroups; the rich resources of the forests, land and rivers assure the individual families of some food availability. Dam relocation reconstituted individual and community relations to the forest, thereby affecting livelihoods. Forest-dependent communities such as the once-nomadic Jahai, who were displaced in the 1950s for security reasons, and later, in mid-1970 by the Temenggor Dam, were similarly affected. Food and other subsistence needs were neglected by the authorities in the isolated resettlement scheme, and foraging and hunting areas were limited, resulting in a decline in food varieties and nutritional status. Unlike Malay reservation lands which are only permitted to be owned and controlled by ethnic Malays, and are rarely subject to state or outsider interference, Orang Asli lands gazetted as reserves can be degazetted without their knowledge, violating the principle of FPIC formulated in international laws and the WCD. In Selangor state, for example, between 1990 and 2002, a total of 7,994.5 hectares of Orang Asli reserves and approved lands were degazetted without consent or adequate notice. Nicholas (2000) revealed that only 51.185 hectares (0.28 per cent) of the 18,587 hectares of gazetted Orang Asli reserves were securely titled. Clearly, Orang Asli are actually only ‘tenants-at-will’; the government perceives their lands as belonging unconditionally to the state and Orang Asli land rights are hence subordinated to state interests (Edo 1998).

The ‘right’ way forward This chapter has briefly outlined the recent history and present situation of indigenous peoples, rights violations and development-induced displacement. It has also provided examples of international instruments with special provisions on the recognition of indigenous rights, and questioned their significance. In Malaysia, the relationship of the state vis-`a-vis the Orang Asli

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clearly expresses deep asymmetries of power. State and federal governments have yet to sincerely recognize Orang Asli customary rights to their traditional territories, and the problematic process of gazetting and degazetting Orang Asli reserves continues to threaten the security of their traditional territories and resources. Colonization and domination over long periods of time has subjugated many once self-governing and autonomous indigenous peoples. Yet, indigenous groups and organizations have stood up to declare their right of autonomy, rights to development and other human rights. Indigenous struggles for greater recognition of their rights are important steps in achieving more justice and redress for past mistakes. It is important to uphold the rights of indigenous peoples – one of the main calls of the UN WGIP and Right to Development – irrespective of gender and other social differences. Development is not just about economic growth but also concerns ‘the freedom to choose one’s destiny’. The pursuit of development cannot be used to justify the neglect of basic rights of minority groups or to create hierarchies in the ordering of rights. Based on the several international and national provisions for indigenous peoples discussed in this chapter, the Orang Asli as indigenous peoples are entitled to the right to selfgovernment and sovereignty, to retain their cultural distinctiveness and to pursue their own life projects, as well as to participate in economic development and decision-making processes as equals and to enjoy the benefits associated with them. Moreover, as outlined earlier, the right to development embodies economic, social, cultural, civil and political rights, and the fundamental respect for human rights. Denial of any of these rights for the Orang Asli is tantamount to denying the right to development itself.

Notes 1. IRN (International Rivers Network): http://www.irn.org 2. The Corner House, an environment and social justice NGO based in the UK: http://www.thecornerhouse.org.uk 3. WRM (World Rainforest Movement), an international rainforest movement headquartered in Montevideo, Uruguay: http://www.wrm.org.uy 4. Elsewhere I have examined the implications of dam-induced resettlement in Sabah (Yong 2001, 2003). 5. Malaysia – then known as Malay peninsula – was briefly colonized by the Portuguese in 1511, followed by the Dutch in 1641. The British ruled from 1876 to 1957, though they were interrupted during the Japanese occupation of Malaya (1942–5). In 1963, the Federation of Malaysia was established by bringing together the regions of what is now Peninsular Malaysia, the Borneo territories of Sabah and Sarawak and the island of Singapore. In 1965, Singapore seceded and became a separate republic. Here I am only dealing with British rule and the Orang Asli. 6. See, for example, http://www.dams.org/wcd ovbr.pdf:3

196 Forced Displacement 7. Information in this section relating to the ILO and indigenous peoples is reproduced from MacKay (2003). 8. For the full text of ILO Convention 107, concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, see http://www.ilo.org/ilolex/english/convdisp1.htm (accessed 21 January 2006); for the ILO Convention 169, concerning Indigenous and Tribal Peoples in Independent Countries, see http://www.ilo.org/ilolex/english/convdisp1.htm (accessed 21 January 2006). 9. See http://www.dams.org/wcd ovrb.pdf/p12 10. ILO 169 sets forth procedures that the state is required to follow and comply with in relation to indigenous peoples, which means that the emphasis is on whether the state has followed the correct procedures, such as consultation, participation, ennviornmental impact assessments, etc., rather than requiring them to recognize and respect the substantive rights therein and produce concrete results. 11. Study of the Problem of Discrimination against Indigenous Populations (5 volumes). United Nations document: E/Cn.4/Sub.2/1986/7 and Add.1-4. Volume V – Conclusions, Proposals and Recommendations E.86.XIV.3 12. Erica-Irene Das, Chair-Rapporteur of the UN Working Group on Indigenous Populations (Colchester 1999: 5). 13. The vote won with an overwhelming majority in favour (143) with only four negative votes cast (Canada, Australia, New Zealand, United States) and eleven abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Columbia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, Ukraine). 14. Statement of the Indigenous Peoples’ Caucus Regional Steering Committee on ‘United Nations General Assembly adopts The United Nations Declaration on the Rights of Indigenous Peoples’, dated 13 September 2007. 15. Department of Statistics, Malaysia 2005 cited in http://www.pmo.gov.my (accessed 15 January 2006). 16. Nevertheless, the indigenous peoples prefer to call themselves Orang Asal (meaning ‘original peoples’), a term derived from a 1993 national workshop on indigenous land rights. 17. United Nations Economic and Social Council. Distr. GENERAL. E/CN.4/1998/28/ Add.1, 12 March 1998. Commission on Human Rights. Fifty-fourth session, Item 6 of the provisional agenda. ‘Question of the Realization of the Right to Development’, Report of the Secretary-General submitted in accordance with Commission resolution 1997/72. Addendum. 1 . . . I. ‘Replies Received from Governments’. A. Malaysia. For details, see http://untreaty.un.org/G9810887 UN Dec on right to dev and Convention on Biological Diversity. Distr. GENERAL. UNEP/CBD/BS/COP-MOP/1/15. 14 April 2004 (accessed 6 March 2007). 18. This supremacy included enslaving Orang Asli especially amongst the Malay raja ruling class in the early nineteenth century. 19. Department of Statistics, Malaysia 2005 cited in http://www.pmo.gov.my (accessed 15 January 2006). 20. ‘Suhakam suggests special attention for Orang Asli to eradicate poverty’, Bernama Nationals News Agency online. Available from: http://www.bernama.com (accessed 26 October 2005). See also Suhakam (Malaysian Human Rights Commission): http://www.suhakam.org.my 21. I am not advocating that having an Orang Asli head will necessarily protect the rights of the Orang Asli – a suggestion belied by the various headmen who ‘betrayed’ their people by signing off Orang Asli lands to the state and

Displacement Through ‘Development’ 197

22.

23.

24.

25.

26.

development agencies. I am merely pointing out that, as Nicholas (2000: 108, 140 n4) argues, ‘the JHEOA has persistently ignored calls by both Orang Asli and non-Orang Asli observers for it to be managed by the Orang Asli themselves’. The Aboriginal Peoples Ordinance of 1954 was later revised as the Aboriginal Peoples Act (1974). The 1954 Ordinance was enacted during the Malayan Emergency, ostensibly for the British colonial administration to introduce some regulations for the protection and control of the Orang Asli. This piece of colonial legislation remains in use by the present Malaysian government. This is not to suggest that the Orang Asli have remained passive recipients of development. I have discussed Orang Asli resistance to forced displacement and resettlement in Yong (2006a: Chapter 7). See also Appeal Court Kerajaan Negeri Johor & Anor v Adong b Kurau & Ors [1998] 2 MLJ 158. Source: SUHAKAM (2002), available online: http://www.suhakam.org.my/bm/dokumen sumber/index.asp http://www.suhakam.org.my/bm/dokumen sumber/terperinci.asp?id=31 http://www.suhakam.org.my/docs/document resource/orangasli.pdf (accessed 12 September 2006). SPLASH is a consortium of state and private agencies, respectively the Kumpulan Darul Ehsan Berhad, a government investment arm (30 per cent), The Sweet Alliance (40 per cent), and Gamuda Berhad (30 per cent). See http://www.splash.com.my/site/site1.htm (accessed 20 September 2005).

References Apffel-Marglin, Frederique (ed. with PRATEC) 1998, The Spirit of Regeneration: Andean Culture Confronting Western Notions of Development, London and New York: Zed Books. Barnes, R. H., Andrew Gray and Benedict Kingsbury (eds) 1995, Indigenous Peoples of Asia, Monograph and Occasional Paper Series No. 48, Association for Asian Studies, Inc. Ann Arbor, Michigan. Brody, Hugh 1981, Maps and Dreams, London: Faber and Faber. Burger, Julian, with campaigning groups and native peoples worldwide 1990, The GAIA Atlas of First Peoples: a Future for the Indigenous World, London: Robertson McCarta Limited. Colchester, Marcus 1999, ‘Sharing Power: Dams, Indigenous Peoples and Ethnic Minorities’, Indigenous Affairs, 3–4 (June/December): 4–54, International Work Group for Indigenous Affairs (IWGIA), Copenhagen. Dentan, Robert Knox 1997, ‘The Persistence of Received Truth: How the Malaysian Ruling Class Constructs Orang Asli’, in R. Winzeler (ed.), Indigenous Peoples and the State: Politics, Land and Ethnicity in the Malayan Peninsula and Borneo, Southeast Asian Studies, Monograph 46, New Haven: Yale University Press, pp. 98–133. Dobby, E. H. G. 1952, ‘Resettlement Transforms Malaya: a Case-history of Relocating the Population of an Asian Plural Society’, Economic Development and Cultural Change 1: 153–89. Dwivedi, Ranjit 1999, ‘Displacement, Risks and Resistance: Local Perceptions and Actions in the Sardar Sarovar’, Development and Change 30(1): 43–78. Edo, Juli 1998, ‘Claiming Our Ancestors’ Land: an Ethnohistorical Study of Sengoi Land Rights in Perak, Malaysia’, PhD thesis, Australian National University, Canberra. Ghai, Dharam 1994, ‘Environment, Livelihood and Empowerment’, Development and Change 25: 1–11.

198 Forced Displacement Gomes, Alberto G. 2004, Looking for Money: Capitalism and Modernity in an Orang Asli Village, Center for Orang Asli Concerns, Melbourne: Subang Jaya and Trans Pacific Press. Harper, T. N. 1998, ‘The Orang Asli and the Politics of the Forest in Colonial Malaya’, in Richard H. Grove, Vinita Damodaran and Satpal Sangwan (eds), Nature and the Orient: the Environmental History of South and Southeast Asia, Delhi: Oxford University Press, pp. 936–66. Hirsch, Philip 1996, ‘Dams and Compensation in Indo-China’, in Richard Howitt, John Connell and Philip Hirsch (eds), Resources, Nations and Indigenous Peoples: Case Studies from Australasia, Melanesia and Southeast Asia, Melbourne: Oxford University Press, pp. 212–22. Hood, Salleh 1984, ‘Orang Asli Perceptions of the Malay World: a Historical Perspective’, Ilmu Masyarakat 6: 68–76. Hooker, M. B. 1991, ‘The Orang Asli and Laws of Malaysia with Special Reference to Land’, Ilmu Masyarakat 18: 51–79. Howitt, Richard, John Connell and Philip Hirsch (eds) 1996, Resources, Nations and Indigenous Peoples: Case Studies from Australasia, Melanesia and Southeast Asia, Melbourne: Oxford University Press. Itam Wali bin Nawan 1993, Rancangan Pengumpulan Semula (RPS) ‘Orang Jahai: Kajian Kes Mengenai Perubahan Sosial di RPS Air Banun’, Jabatan Anthropologi dan Sosiologi, Universiti Kebangsaan Malaysia, Bangi. [The Jahai: a Case Study of Social Change in the Air Banun Regroupment Scheme. Anthropology and Sociology Department, National University of Malaysia, Bangi]. JHEOA 2001, ‘Profile of the Orang Asli in Peninsular Malaysia’ (data based on Population Census Monograph, Department of Statistics), Jabatan Hal Ehwal Orang Asli, Kuala Lumpur. Jimin Idris 1978, ‘The Regroupment of the Orang Asli Within the Titiwangsa Region of Peninsular Malaysia’, MPhil thesis, St John’s College, University of Cambridge. Kessler, Clive S. 1992, ‘Archaism and Modernity: Contemporary Malay Political Culture’, in Joel S. Kahn and Francis Loh (eds), Fragmented Vision: Culture and Politics in Contemporary Malaysia, Sydney: Allen & Unwin, pp. 133–57. KHRP 2003, ‘ ‘‘This is the Only Valley Where We Live’’: the Impact of the Munzur Dams’, Report of the KHRP Fact-Finding Mission to Dersim/Tunceli. Kurdish Human Rights Project (KHRP), London. KHRP 2005, ‘The Cultural and Environmental Impact of Large Dams in Southeast Turkey’, Fact-Finding Mission Report, February. Written by Maggie Ronayne, National University of Ireland, Galway and Kurdish Human Rights Project (KHRP), London. King, Victor T. 1995, ‘Indigenous Peoples and Land Rights in Sarawak, Malaysia: To Be or Not To Be a Bumiputra’, in R. H. Barnes, Andrew Gray and Benedict Kingsbury (eds), Indigenous Peoples of Asia, Monograph and Occasional Paper Series, 48, Association for Asian Studies, Inc., Ann Arbor, Michigan, pp.1289–306. Kingsbury, Benedict 1995, ‘ ‘‘Indigenous Peoples’’ as an International Legal Concept’, in R. H. Barnes, Andrew Gray and Benedict Kingsbury (eds), Indigenous Peoples of Asia, Monograph and Occasional Paper Series, 48, Association for Asian Studies, Inc., Ann Arbor, Michigan, pp.13–34. MacKay, Fergus 2003, ‘A Guide to Indigenous Peoples’ Rights in the International Labour Organization’, Forest Peoples Programme, Moreton-in-Marsh. McCully, Patrick 2001, Silenced Rivers: the Ecology and Politics of Large Dams, London: Zed Books.

Displacement Through ‘Development’ 199 Meng Yew Choong 1999, ‘Little Say about Compensation’, The Star, 21 September, Petaling Jaya. Moore, Henrietta L. 1988, Feminism and Anthropology, Cambridge: Polity Press. Morvaridi, Behrooz 2004, ‘Resettlement, Rights to Development and the Ilisu Dam, Turkey’, Development and Change 35(4): 719–41. Ng, Cecilia 1999, Positioning Women in Malaysia: Gender and Class in an Industrializing State, New York and London: St. Martin’s Press. Nicholas, Colin 2000, ‘The Orang Asli and the Contest for Resources: Indigenous Politics, Development and Identity in Peninsular Malaysia’, IWGIA Document No. 95, COAC, Petaling Jaya and IWGIA, Copenhagen. Nicholas, Colin 2002, ‘Organising Orang Asli Identity’, in Geoffrey Benjamin and Cynthia Chou (eds), Tribal Communities in the Malay World: Historical, Cultural and Social Perspectives, Institute of Southeast Asian Studies, Singapore, pp. 119–36. Nicholas, Colin, Tijah Yok Chopil and Tiah Sabak 2002, Orang Asli Women and the Forest, Petaling Jaya: COAC. Noone, Richard 1972, Rape of the Dream People, London: Hutchinson. Oliver-Smith, Anthony 2002, Displacement, Resistance and the Critique of Development: From the Grassroots to the Global, Final Report prepared for ESCOR R7644 and the Research Programme on Development Induced Displacement and Resettlement, Refugee Studies Centre, University of Oxford, July. Picciotto, Robert, Warren van Wicklin and Edward Rice (eds) 2001, Involuntary Resettlement: Comparative Perspectives, World Bank Series on Evaluation and Development, Volume 2. New Brunswick and London: Transaction Publishers. Rosli Omar 2001, ‘Sungai Selangor Dam: Orang Asli and the Environment’, in Kua Kia Soong (ed.), People Before Profits: the Rights of Malaysian Communities in Development, Petaling Jaya: SIRD and SUARAM, pp. 79–82. Schleifer, Yigal 2007, ‘Recent Study Estimates 1.2 Million Kurds Forcibly Displaced’, Eurasia, 10 January. Scott, James 1998, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, New Haven and London: Yale University Press. Scudder, Thayer 2005, The Future of Large Dams: Dealing with the Social, Environmental and Political Costs, London: Earthscan. Shoemaker, Nancy (ed.) 1995, Negotiators of Change: Historical Perspectives on Native American Women, New York and London: Routledge. SOSS 1999, ‘Joint Press Statement by Concerned NGOs and Individuals on the Selangor River Dam’, Save Our Sungai Selangor, 24 July, Kuala Lumpur. Tan Pek Leng 1997, ‘Malaysia’, in Raina Vinod, Aditi Chowdhury and Sumit Chowdhury (eds), The Dispossessed: Victims of Development in Asia, Hong Kong: ARENA Press, pp. 219–55. Vinding, Diana (ed.) 1998, Indigenous Women: the Right to a Voice, IWGIA Document No. 88, Copenhagen. Williams-Hunt, Anthony 1995, ‘Land Conflicts: Orang Asli Ancestral Laws and State Policies’, in Razha Rashid (ed.), Indigenous Minorities of Peninsular Malaysia: Selected Issues and Ethnographies, INAS Kuala Lumpur, pp. 36–47. Winzeler, R. (ed.) 1997, Indigenous Peoples and the State: Politics, Land and Ethnicity in the Malayan Peninsula and Borneo, Southeast Asian Studies, Monograph 46, New Haven, Yale University. World Bank 1994, ‘Resettlement and Development: the Bankwide Review of Projects Involving Involuntary Resettlement 1986–1993’, World Bank, Washington, DC, pp. 5–22.

200 Forced Displacement World Bank 2004, Involuntary Resettlement Sourcebook: Planning and Implementation in Development Projects, International Bank for Reconstruction and Development/World Bank, Washington, DC. World Commission on Dams (WCD) 2000, Dams and Development: a New Framework for Decision-Making, London: Earthscan, http:///www.dams.org (accessed 12 March 2006). World Rainforest Movement (WRM) 2005, Indigenous Peoples: Their Forests, Struggles and Rights, World Rainforest Movement, Montevideo. Yong Ooi Lin, Carol 2001, ‘Gender Impact of Resettlement: the Case of Babagon Dam in Sabah, Malaysia’, Gender, Technology and Development, 5(2). Yong Ooi Lin, Carol 2003, ‘Flowed Over: the Babagon Dam and the Resettlement of the Kadazandusuns in Sabah’, Centre for Orang Asli Concerns, Subang Jaya. Yong Ooi Lin, Carol 2006a, ‘Dam-based Development in Malaysia: the Temmenggor and Sungai Selangor Dams and the Resettlement of the Orang Asli’, doctoral thesis submitted to the University of Sussex. Yong Ooi Lin, Carol 2006b, ‘Autonomy Re-constituted: Social and Gendered Implications of Dam Resettlement on the Orang Asli of Peninsular Malaysia’, Gender, Technology and Development 10(1), Special Issue. Zhu, Yuchao and Dongyan Blackford 2005, ‘Ethnic Minority Issues in China’s Foreign Policy: Perspectives and Implications’, Pacific Review 18(2): 243–64, http://www.tandf.co.uk/journals (accessed 24 September 2005).

10 Why are Human Rights Violated with Impunity? Forced Displacement in India’s Narmada Valley1 Lyla Mehta

Introduction Displacement arising through the building of infrastructure projects such as mines, large dams and roads gives rise to radical and rapid changes in the environment, livelihood strategies, social and gender relations, economic activities and world views. A vast body of research has documented the impacts of development-induced displacement on displaced people, often known as ‘oustees’ (e.g. Cernea 1997; McDowell 1996; Mehta forthcoming; Scudder and Colson 1982; Yong 2006). In some cases, relocation and resettlement have led to new social and economic benefits for the oustees (see Koenig 1995: 39). Largely, though, displacement arising through ‘development’ allows for very limited choice and agency since state-sponsored resettlement processes are either totally ad hoc or border on social engineering (see also Yong, Morvaridi, this volume). They are usually traumatic, protracted and difficult processes that uproot people from their familiar environment and lead to general impoverishment and a decline in the standard of living of the affected people (see Cernea 1997, 2000; McDowell 1996). Furthermore, people confronted by displacement live in resource-rich yet remote areas and have a history of social, economic and political marginalization and vulnerability. Consequently, they lack political clout (see Scudder 1996). Take India, for example, where almost half the people displaced for national ‘development’ since independence are adivasis2 (so-called tribal peoples), who live in remote and isolated areas (Fernandes and Thukral 1989). For decades, most of them were bypassed by state planning and development processes concerning welfare, health and education. Hence, many of them have been unaware of their official rights, and their bargaining power has been weak. The Impoverishment Risks and Reconstruction (IRR) model, developed by former World Bank sociologist Michael Cernea, has been key in showing how 201

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displacement goes hand in hand with physical, social and economic exclusion. By explicitly proposing eight risks, it spells out how impoverishment occurs through displacement. More importantly, it highlights measures that need to be undertaken to diminish risks and reconstruct livelihoods (Cernea 1997, 2000). Still, the mere focus on mitigating impoverishment risks often adopts the perspectives of planners and policy-makers and fails to advocate explicit partisan interventions for both displaced people and vulnerable groups within displaced communities such as women (see Mehta forthcoming). Thus, several authors are now calling for supplementary approaches that focus on the impacts or risks of displacement with research that hones in squarely on the rights of displaced people, their perceptions of loss/risk and rights, and the means through which their rights can be protected and strengthened (Dwivedi 2002 ; Mehta and Gupte 2003; Robinson 2003). Some of these rights include the right to information, housing, livelihood, development and even the right to veto such projects. Why is this important? Despite the existence of several national and international human rights instruments to protect displaced people, to which I turn shortly, oustees continue to lack access to basic rights and often encounter gross human rights violations (see Yong, this volume). This is despite dynamic protest movements that are largely concerned with safeguarding their basic rights.3 This chapter thus asks: why do rights continue to be violated with impunity? Do the necessary accountability mechanisms exist to hold the powerful to account? Is there an ambiguity about responsibilities and duty-bearers when displaced people’s rights are violated? These questions constitute some of the core arguments of this volume, pointing at contradictions and challenges in the debates around rights of the displaced. The chapter argues that rights continue to be violated with impunity for the following reasons. First, due to sins of omission, states may not be able to deliver rights to citizens, or citizens may not be aware of them or have the capacity to mobilize. The chapter by Grabska on Egypt (this volume) highlights such sins of omission. In the context of oustee displacement though, largely, rights are violated due to sins of commission. In such situations, states or non-state actors such as the World Bank may knowingly put vulnerable people’s rights at risk or even violate them for a variety of reasons. These issues are examined by looking at the case of the Narmada Project in India, famous for both massive displacement and protest. This chapter draws on research and experiences in the Narmada Valley since the early 1990s. I first went to the Narmada Valley as a Master’s student in 1991 where I undertook research on gender and displacement in the context of large dams. While I was there, I was struck by the amazing protest movement, raising questions about both the project and the wider development paradigms it represented. I went back in 1993 to spend time with the protest movement. On this visit and in the subsequent ones over the years, I visited and stayed in many villages, built relations with many villagers, resettled

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people and activists and participated in many protest actions. In 2000, I returned to the Narmada Valley to systematically research gender, displacement and resistance issues, this time as a professional researcher, and I have gone back every two years since. The research then drew on participant observation, semi-structured interviews and ethnographic fieldwork. I have also been involved in advocacy work in the UK on large dams and displacement and have worked as a consultant for the World Commission on Dams. More recently, DRC funding enabled me to look explicitly at human rights violations. My writing on displacement thus draws on extensive research as well as personal experiences and direct engagement with on-the-ground action and wider policy processes. The Narmada case highlights serious accountability gaps, contradictions in assigning responsibilities for both rights realization and rights violations and tremendous anti-poor and elite biases in the existing institutions that are supposed to provide welfare to the oustees and protect their rights. I also demonstrate that there are serious shortfalls of political will to take rights seriously or to address the power differentials that allow some actors to continue violating rights with impunity.

Displacement politics Displacement accompanying large infrastructure projects remains an unresolved issue within ‘development’. Post-colonial development policy and planning has largely followed the utilitarian and Benthamite logic of ‘the greatest happiness for the greatest number’ (Rayner 2003). This has allowed for millions to be displaced in the interest of the ‘common good’ (Roy 1999). In the 1950s, industrial and infrastructure projects were considered to be the path to development, and projects such as large dams generating water and power were supposed to help India ‘catch up with the West’ and promote modernity. It was unquestioned then that such mega-projects would require the displacement of large numbers of people. Forced uprooting was considered to be the ‘cost’ of development due to over-arching national interest. By drawing on the notion of ‘eminent domain’, which is linked to the colonial Land Acquisition Act of 1894, the government has the power to appropriate private property which is justified under the guise of ‘national purpose’. However, as James Scott (1998) notes, this high modernism and technical progress often leads to hegemonic planning that has excluded diverse perspectives and alternative paths to development, as well as the agency of local people. Thus, not surprisingly, resettlement schemes have led to impoverishment (Cernea 1997, 2000) and immiseration due not only to their top-down style of decision-making and the suppression of the ousted, but also due to the inability of resettlement schemes to rebuild lives and livelihoods.

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While relocation and resettlement are largely physical and economic initiatives, rehabilitation is more protracted and difficult, as it involves restoring community and individual livelihoods, income, dignity, well-being and the capacity to interact as equals in the new environment (Asif 2000). But as extensive research in India has documented, rehabilitation rarely takes place (ibid.) and certainly not in a socially just manner. Furthermore, many of the purported benefits of this high and large-scale modernism have been exaggerated.4 The conclusions of the World Commission on Dams (WCD) are relevant in this context. An independent commission, the WCD conducted the first comprehensive, global and independent review of performance and impacts of large dams and the options available for water and energy development. It found that: while Dams have made an important and significant contribution to human development . . . in many cases, a highly unacceptable and unnecessary price has been paid to secure those benefits, especially in social and environmental terms, by people displaced, by communities downstream, by taxpayers and by the natural environment. Moreover, the lack of equity in the distribution of benefits has called into question the value of many dams in meeting water and energy development needs when compared with the alternatives. (WCD 2000: xxviii) In recent decades, post-independence India has witnessed the emergence of new social movements which question ‘development’ models and the role of the state in decision-making processes that legitimize the forced displacement of poor and vulnerable people. Nowhere is this more evident than with large dams. While large dams might have made some parts of the desert bloom and led to full granaries and enhanced food security, they have not been without high social and environmental costs (cf. Goldsmith and Hildyard 1992; McCully1996). For the people adversely affected by large dams, they have meant displacement and homelessness. The rivers, expected to harness power and water with the dams, have become rivers of sorrow for the displaced people living on their banks (Thukral 1992). Unfortunately, there is no consensus on how many people have been displaced by large projects such as dams since India’s independence. Estimates range from 21 million to 50 million (see Mehta forthcoming).The planning and implementation of resettlement and rehabilitation have varied from state to state and have largely proceeded on a very ad hoc and incremental basis (cf. Dreze et al. 1997; Fernandes and Thukral 1989; Goldsmith and Hildyard 1992; Thukral 1992). Little wonder, then, that many of the oustees of dams such as the Ukai in Gujarat, Hirakud in Orissa and Bhakra Nangal in the Punjab have joined the ranks of urban slum dwellers and migrant workers or have fallen into cyclical debt bondage. Out of the millions displaced, only 25 per cent have

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been rehabilitated (Parasuraman 1997). As many studies have documented, the rest have had to fend for themselves and have experienced a significant decline in their economic, socio-cultural and nutritional status (see Fernandes and Thukral 1989; Mehta forthcoming; Morse and Berger 1992; Thukral 1992).

The Narmada Project The controversial Narmada Project comprises two mega-dams, 30 large dams, 135 medium dams and 300 small reservoirs and dams. All these projects, if realized, will most certainly totally transform the Narmada river, India’s holy and last free-flowing river. One of the mega-dams, the Sardar Sarovar Project (SSP) is supposed to bring water to some 30 million people and irrigate 1.8 million hectares of land with a capacity of 1,450 megawatts of power (Raj 1991). The 138-metre-high dam, if completed, will submerge 37,000 hectares of forest and prime agricultural land. Apart from the various disputes about its purported benefits and environmental impacts, it has been criticized due to its deleterious human consequences. The project will negatively affect the homes, lands and livelihoods of about a million people. About 250,000 people (largely adivasi) will be directly impacted and lose their homes due to reservoir submergence in Gujarat, Maharashtra and Madhya Pradesh. The rest will be indirectly affected due to canal construction and the downstream impacts of the dam. The World Bank was involved in financing the project in its early years. However, due to massive national and international protest, the Bank was forced to appoint the first World Bank review team that presented its report in 1992 (Morse and Berger 1992). The team, led by Bradford Morse, former head of the United Nations Development Programme, concluded that the project was badly flawed on both social and environmental grounds and advised the Bank to withdraw its funding. It also found that the Government of India had violated the provisions of the Bank’s policies on resettlement, tribal peoples and environment, to which I turn shortly. In 1993, the Government of India cancelled the remaining balance of the loan, and the World Bank withdrew its funding from the project due to national and international criticism. During most of the 1990s, work on the dam had stopped after the Indian Supreme Court passed a stay order on the dam’s construction for six years. On 18 October 2000, the Supreme Court of India delivered its judgement on the Sardar Sarovar Project. In a two to one majority judgement, it authorized construction up to the originally planned height of 138 metres in five-metre increments, subject to receiving approval from the Relief and Rehabilitation Subgroup of the Narmada Control Authority. Since 2000, the dam’s height has increased steadily, and at the time of finalizing this volume it stood at 122 metres. Every increase in height along

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the way, however, has been bitterly opposed by the project-affected people opposing displacement along with the activists of the Narmada Bachao Andolan (Save the Narmada Movement).

The role of protest The dams on the Narmada river are also famous due to the activities of the Narmada Bachao Andolan (henceforth Andolan), one of the world’s most well-known social movements. Over the past twenty years, the Andolan has drawn the plight of the displaced peoples affected by the Narmada dams and the dark sides of such top-down projects to the attention of millions of people all over the world. It has also inspired several social and environmental struggles on the Indian subcontinent and raised questions important for India’s future about sustainable development, participation, the rights of indigenous peoples, the viability or non-viability of large top-down centralist projects and the mobilization of protest. Over the years, the Andolan adopted a strategy of non-cooperation, mass mobilization and non-violent forms of protest, including rallies, picketing, sit-ins, fasts and the more extreme case of jal samapan (save or drown actions). By following the slogan ‘We will drown, but not move’, activist villagers have refused to vacate their ancestral homes and have faced the rising waters of the reservoir during submergence periods. As a result they have faced police atrocities and repressive tactics, including mass arrests, harassment, the molesting of women and the clear felling of their forests. Due to protest in the Narmada Valley, both the Indian government and state governments have had to come up with policies and programmes that, at least on paper, seek to restore and improve the lives and livelihoods of the displaced (see Mehta 2000). This includes the resettlement and rehabilitation (RR) policy for the state of Gujarat which was supposed to be a watershed in RR thinking at the policy level. However, as I demonstrate, it has had implementation problems and has proved to be badly flawed. The protests have also led to several international processes (such as the formation of the WCD) that I discuss shortly. Popular and mass protests, as well as struggles in the courtroom, have highlighted to the Indian middle class (far removed from the realities of tribal life) and citizens all around the globe the range of human rights violations that continue to take place through displacement and resettlement processes.

The human rights of the Narmada oustees Resettlement and rehabilitation must follow the procedures set by the following bodies and policies: the Narmada Water Disputes Tribunal (NWDT) Award – a commission set up by the Indian government to settle conflicts between states over the Narmada river concerning sharing the waters,

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rehabilitation and the height of the dam; the directions of the Indian Supreme Court; the rehabilitation and resettlement policies of the states of Gujarat, Madhya Pradesh and Maharashtra; World Bank policies; as well as India’s human rights obligations. These include international human rights instruments relevant for dam-based displacement such as: • The 1986 General Assembly Declaration on the Right to Development endorses individuals’ rights to enjoy economic, social, cultural and political development to realize fundamental human freedoms. The Declaration also asserts the right of peoples to self-determination and their ‘inalienable right to full sovereignty over all their natural wealth and resources’. While, in principle it could also include states’ right to development, according to Rajagopal’s interpretation, the language makes it clear that ‘local communities and individuals, not states, have the right to development’ (Rajagopal 2000: 5). • The Right to Life and Livelihood is founded in the Universal Declaration of Human Rights (Article 3) and Articles 6 and 11 of the International Covenant on Economic, Social and Cultural Rights (Robinson 2003: 14). • The 1991 International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) recognizes that indigenous and tribal peoples have a right to take part in the decision-making processes of the states in which they live. • In November 2002, the United Nations Committee on Economic, Social and Cultural Rights adopted the General Comment on the Right to Water. • The 1998 Guiding Principles on Internal Displacement. India has also signed these various international human rights treaties which recognize, among others, the rights to life, freedom of movement, choosing one’s residence and an adequate standard of living, including adequate food, clothing and housing. Moreover, the Covenant on Economic, Social, and Cultural Rights requires, for instance, that procedural guarantees be offered by the government, including ‘genuine consultation with the projectaffected people, the issue of adequate notice to all affected persons prior to the date of eviction, and the provision of legal remedies and legal aid where applicable’ (Cullet 2000). India’s Constitution also reinforces several fundamental rights of displaced people who are citizens of India. For example, Articles 21 and 14 of the Indian Constitution enjoin, respectively, that citizens have rights to life and personal liberty and the right to equal protection of the laws. The Narmada Supreme Court judgement of 2000 recognized that resettlement and rehabilitation is a right under Article 21. The Indian state, however, has been resistant to recognizing some international rights regimes, such as the updated 1989 ILO Convention 107 which provides stronger rights to indigenous peoples (Cullet 2000). This is because indigeneity is highly contested in the Indian context, as elsewhere (see Yong, this volume).

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In addition, the guidelines established by the NWDT tribunal in 1979 are key. There is no standard RR policy for all the projects and states. Instead the RR policies of the states of Madhya Pradesh, Maharashtra and Gujarat have different provisions for land allocation, rehabilitation grants, subsistence allowance, transport grants, as well as compensation for land and housing and civic amenities, such as drinking water, electricity, a primary school, place of worship and so on (NCA 2005). World Bank policies were in force when the 1985 loan to the Sardar Sarovar Project was approved. According to legal specialists, the policies continue to apply to the project and will continue to apply until the loan is repaid. The most relevant policy includes the Involuntary Resettlement Policy (OM S233, issued February 1980) which clearly states that settlers’ living standards need to at least match those before resettlement and that the Bank will avoid or minimize involuntary resettlement wherever feasible (Clark and Bhardwaj 2003: 7). Furthermore, the tribal people’s policy (OM S234, issued 1982) clearly states that wherever tribal people are involved, projects must be designed to safeguard the special interests and well-being of tribals. Even though the World Bank is no longer involved in the project, advocacy groups, such as Washington’s International Accountability Project, feel that the World Bank should not be absolved of its responsibility for ensuring that the project continues in compliance with its policies and safeguards. The World Bank’s General Council also clarified that the Government of India is legally obligated towards the Bank to carry out obligations under the loan agreement (Clark and Bhardwaj 2003). Similarly, this should not absolve the central government and the three states from complying with internationally and nationally recognized standards around resettlement and rehabilitation. However, the Bank has failed to exercise its supervision and monitoring obligations. This is often the case with World Bank funded projects where the onus is on the borrower country to comply with policies and guidelines. Thus, there is a complete lack of public accountability on the part of the World Bank. This is particularly problematic for projects involving displacement, since relocation usually takes place many years after the loan is disbursed. Thus local people have no official recourse for redress of violations from the World Bank.

Human rights violations In this section, I highlight how oustees’ positive and negative rights have consistently been violated through the dam’s construction and their subsequent displacement. Both kinds of rights and their violations are experienced in an interconnected way by the oustees (see also Plant 1998). Largely, there has not been compliance of the basic principle of the NWDT Award which stipulates that displaced people must be resettled at least one year before submergence

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and that they should be completely rehabilitated in their new homes six months before submergence. Moreover, increases in the dam’s height have not proceeded hand-in-hand with rehabilitation (Clark and Bhardwaj 2003). Since 1991, every year during the monsoons adivasi villages have been partially submerged by the swollen waters of the Narmada river. A river known to them as ‘Mother’ is converted into a death trap as the rising waters submerge crops and homes. In 1993, I witnessed how villagers in Vagdam (Gujarat) and Manibeli (Maharashtra) lost most of their belongings, houses and lands as they fled from the rising waters. In 2000, I returned to the area to find that many continued to live in makeshift houses high on the hills. They had still not been resettled. In 2001, a fact-finding mission found that a large number of people affected when the dam rose to 90 metres had not been rehabilitated (Clark and Bhardwaj 2003). In 2002, floodwaters during the September monsoon submerged homes, crops and livestock across the Narmada Valley. The residents of the valley, including protesters, stood in rising waters in their homes, and the police arrived to arrest them. A young adivasi woman from Madya Pradesh told a gathering that I attended in 2002: A few months ago, a team surveyed the whole village, the lands, the assets and the resettlement package. The team assured us that they would not allow any submergence to take place until the resettlement process was completed. But still on the day when the water came, 5,000 police personnel came to the village with only four women police. We asked why so many police had come . . . All of a sudden they began dragging us out of our houses. They even dragged out the women who had no clothes with them. They pulled children and even a three-month-old baby who could barely survive without its mother. There was another four-year-old child who was found only after 15 days. On the one hand, our village was filling with water, and, on the other hand, the police were dumping people forcibly in make-shift camps. In 2006, several activists went on a major hunger fast to protest against raising the height of the dam to 122 metres, given that resettlement and rehabilitation of thousands of temporarily and permanently affected families were not completed as per the Narmada Tribunal Award. Even today in 2008, many families still remain in the Narmada Valley without resettlement or rehabilitation. This is in part because they are refusing the problematic land that they have been awarded, and the government has not responded to their demands of just rehabilitation. They have moved to the top of hills and look over what used to be their village lands, now a big reservoir with water that is silted up and often a breeding ground for disease. Every year when submergence occurs, there are problems with the availability of food supply and access to drinking water, due to the destruction

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of crops and the complete transformation of the river (Clark and Bhardwaj 2003). Furthermore, the Indian government is also known to resort to draconian measures to make protest illegal and thus legitimize mass arrests which can severely impinge on displaced people’s civil and political rights, and which also contravene Article 19 of the Indian Constitution which allows people to protest peacefully. In Madhya Pradesh, interviews with oustees and activists over the years have revealed that there is a marked lack of available land and that the authorities often entice oustees to accept cash compensation instead of providing them with land. This is a clear violation of the land-for-land policy which constitutes best practice both in India and internationally. This is because cash compensation tends to be squandered away quickly by oustees who are largely unaccustomed to large monetary transactions. There is also a lack of information about displacement and rehabilitation everywhere, and displaced people experience a great deal of uncertainty (see also the case of Orang Asli oustees discussed by Yong, this volume). It is not uncommon to hear graphic stories about people not being told about the dam, the timing of submergence, who would be submerged and what the entitlements are, thus violating oustees’ rights to information and participation. But even people rehabilitated over a decade ago and living in the 200 resettlement sites scattered across Gujarat are unhappy and lack access to basic rights. Many oustees from Gujarat moved reluctantly but without protest to the plains in the 1980s and 1990s. They had not been in contact with the protest movement and had been more influenced by pro-dam NGOs such as Arch Vahini that viewed RR as a way to ‘develop’ the largely adivasi population. Many of the resettlement sites have poor agricultural land, and lack water and basic amenities. One such place is Malu, a resettlement site in Gujarat. The residents of Malu were moved there in the early 1990s after being displaced from their homes in a hilly forest village, along the banks of the Narmada river. The changes in water access for the displaced people in Gujarat have led to a decline in their sense of well-being because the once taken-for-granted freedoms around water have been taken away. For the residents of Malu, a free-flowing river which once gave them 24-hour access to water has been replaced by various unreliable taps that provide water for very short periods. Displaced people have little control over the operation or maintenance of these taps or indeed over the quantity of water available daily. Poor quality water is also a source of illness such as diarrhoea, vomiting and other waterborne diseases which appear to be rampant in the resettlement village (Mehta and Punja 2006). My research in 2000 showed that the poor quality of water has also led to an increase in mortality. Many households in Malu have lost family members, especially children. The number of children dying in the 0–1 year age group was double that of the host village, and in the 1–5 year age

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group, it was nearly six times higher. The family that looked after me while I stayed there lost two children, their son from septicaemia in August 2000, and in November, their granddaughter died at the age of nine months. In addition, everybody spoke of reduced immunity and weakness. Thus, their rights to both water and health have been violated.

Difficulties in accessing justice To whom can the oustees turn for redress? For oustees who have experienced human rights violations, the first port of call has been the relevant resettlement agency in the three states of Maharashtra, Gujarat and Madhya Pradesh and the bureaucracies concerned (for example, those overseeing resettlement, forest and rural development issues). Largely, however, these various organs are full of biases that make it difficult for oustees to seek redress or claim accountability without the help of mediators such as activists or voluntary organizations. For example, oustees need to endure several bureaucratic procedures (such as endless form filling and meetings) that can be very intimidating for groups, especially adivasis who are not familiar with the written word. In response to the growing complaints by oustees, the Supreme Court in 1999 mandated the setting up of a Grievance Redressal Authority (GRA) for Gujarat, and in 2000 for Madhya Pradesh and Maharashtra, to look into the rehabilitation-related grievances of the project-affected people. Each of these GRAs is headed by a retired Supreme Court or High Court judge. The Rehabilitation and Resettlement Subgroup of the Narmada Control Authority is required by the Supreme Court to consult the GRAs before giving clearance that rehabilitation at a particular height of the dam is complete (Clark and Bhardwaj 2003). In some cases, this has helped, and some oustees have indeed been able to have their problems addressed and even their land changed. But the grievance redressal procedure can also be rather partisan and display elite biases. Interviews with oustees in Malu and elsewhere (as well as personal experiences) suggest that GRA officials often do not visit the affected areas and are not attentive during meetings. Further, the filing of complaints and the endless rounds of meetings can add a new layer of bureaucracy for the displaced. GRA officials were also particularly difficult with me and my co-researcher in 2000. If they succeeded in giving researchers such a hard time, it is not difficult to imagine what they do with oustee groups, who are both intimidated by officials and often cannot read or write. Thus, access to justice and the means to claiming rights for oustees are very problematic. Sit-ins, protests and hunger strikes in front of both capitals and in Delhi have led to ministers, senior bureaucrats, members of the National Human Rights Commission and National Women’s Commission making visits to the affected areas and to resettlement villages. In an incremental way, the

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lot of some oustees has improved as a result of these massive protests. For example, land has been reallocated and basic services have been provided. Nonetheless, despite mass mobilization, high profile campaigns and media presence, rights continue to be violated with impunity in the Narmada Valley. Moreover, the Narmada Control Authority has often agreed to increases in the dam’s height despite illegalities and failures related to resettlement and rehabilitation. The state governments claim that they have already provided RR and that the affected people should address their concerns to the GRA. The central government often passes the buck to the relevant state governments. Due to these institutional failures, there are now calls to refocus attention towards the World Bank. While most displaced people do not want the World Bank to be involved, they continue to hold it responsible for its role in promoting a project that so clearly violates its own policies as well as international human rights standards. Dana Clark of the International Accountability Project (see Bretton Woods Project 2004), therefore, suggests that the Bank should enforce terms of the loan conditions since it has ongoing relationships with both the Indian government as well as with the three states through ongoing irrigation and power sector loans. Moreover, the Board of Executive Directors, which sanctioned the project, needs to have a ‘fiduciary’ responsibility to take action and uphold the integrity of the project. Further, it needs to address the accountability gaps and implementation failures (ibid.). At the moment, though, international financial institutions (IFIs), such as the World Bank, disclaim all responsibility and claim that it is up to the borrowers to fulfil loan agreements. There is also a ‘perverse incentive structure’ which calls for new loans to make good on badly implemented projects, and adjustment schemes which end up benefiting the IFIs. Instead, it has been suggested that an international court of arbitration could decide on how the IFI and borrower countries could share costs in the case of disagreements following complaints filed by governments, NGOs and the affected people (Bretton Woods Project 2004).

Discussion I now attempt to answer the questions raised earlier in the chapter: Which accountability failures and contradictions continue to exist regarding duty bearers, protectors and violators of rights? Why do rights continue to be violated with impunity in forced displacement situations? Institutional mechanisms and accountability structures Accountability is usually seen as the means through which the less powerful can hold the more powerful to account (Goetz and Jenkins 2004).

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Traditionally, it is governments that are responsible for protecting and governing people’s rights and lives, but there is an increasing need to hold other actors (such as the World Bank) to account. Diffuse and unclear rules of accountability on the part of global and non-state players are problematic when most human rights declarations focus on states as the primary dutybearers to deliver and protect rights (see chapters by Muggah, Grabska, Trad and Kagan, Assal, and Yong, this volume). National and international law is both a solid basis for holding governments accountable for protecting human rights, and for promoting national legislative, policy and other initiatives which comply with the international standards that governments have accepted. India has the necessary legislation in place, rights-based elements in its Constitution and a Human Rights Commission that monitors how rights are being violated or realized. The Indian Human Rights Commission has defended oustee rights in the Narmada Valley on a few occasions. But the state governments often have not responded or followed up adequately. The monitoring of human rights violations has not necessarily led to a change in the perception that officials can continue to disregard human rights in order to continue dam-building in the name of ‘development’. Judicial activism has broadly enhanced the voice of the poor and played a very constructive role (Goetz and Jenkins 2004). In India, much is made of judicial activism and the role of the Supreme Court in enhancing the voice of the poor and marginalized. But the Narmada judgement changed this perception. The controversial 2000 Supreme Court decision allowed the dam’s construction to proceed despite overwhelming evidence of its social and environmental problems. It is considered by many to be a highly emotive and non-judicial judgement, making the public interest litigation route unpredictable. Thus the law can be highly arbitrary and influenced by powerful vested interests and narratives, and thus cannot always be relied upon as a panacea for ongoing injustice.5 Finally, even the institutions specifically put in place to address accountability issues may display variable outcomes. Indeed, ostensibly pro-poor institutions can work towards enhancing the interests of the more privileged sections of society; thus even watchdog institutions such as the GRA can display elite biases and are less sensitive to exclusions arising from lack of education or information. Moreover, ‘accountability to less powerful members is rarely a part of the implicit contracts or compacts underlying uneven power relations’ in such institutions (Goetz and Jenkins 2004: 41). Thus bureaucrats may not see it as part of their remit to be sympathetic to issues concerning social justice, equity and human rights. Moreover, institutionalized biases often exist in the interest of the rich, since seeking redress hinges on the ability to communicate in dominant languages, interact with lawyers or have massive endurance. Thus, efforts to institutionalize rights and seek accountability can be thwarted by systematic malfunctions in key

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accountability mechanisms. This need not be due only to elite capture, but also to systematic bias against the poor (ibid.).

Competing rights: duty-bearers and violators The Narmada case highlights problems around apportioning blame for rights violations and identifying who bears obligations and responsibilities to realize rights. This is particularly true in the contemporary world, characterized by processes of economic globalization which have led to the proliferation of demands for new ways of making powerful actors, within and beyond the state, accountable for the impacts of their actions on poor people (Goetz and Jenkins 2004: 28). But economic globalization has also led to the proliferation of new actors. In Narmada, these include transnational alliances between the Andolan and NGOs around the world (such as the International Rivers Network, The Corner House in the UK, and Urgewald in Germany). These alliances have certainly helped pressure global institutions, such as the World Bank, which now has an Inspection Panel to investigate difficult and controversial projects. They also led to the formation of the World Commission on Dams in 2000 and its principles regarding decision-making processes around large dams. The Narmada case also highlights other contradictions with respect to dam-based displacement. Competing rights claims exist due to a lack of clarity around who has rights, whose rights are at risk and who is to be the duty-bearer to protect and fulfil the different rights. Oustee displacement, for example, is legitimized through the over-arching principles of ‘development’ and ‘national purpose’, which have often made it difficult to contest the corrosion of basic rights (see also Yong, this volume). Oustees’ rights are pitted against the so-called rights of the larger population that is expected to benefit from the planned highway, road, park or dam. It is now acknowledged that such social development processes have been skewed in terms of how gains and pains are spread (WCD 2000). Often, a small and elite minority has benefited immensely, while a large silent group has borne disproportionate costs. Their concerns, rights and needs are, however, rarely captured in conventional cost-benefit analyses that tilt in favour of the interests of the rich and powerful. Such cost-benefit analyses are also silent about the hidden costs of such schemes (e.g. a total disregard of nonmonetized resources and exchanges, downstream impacts of dams, and so on). As Robinson argues, ‘Development is a right, but it also carries risks to human life, livelihood and dignity that must be avoided if it is to deserve the name’ (Robinson 2003: 59).6 Still, state governments may often be willing to violate basic rights when they evoke the principle of ‘eminent domain’. Thus oustee attempts to seek redress can be tricky since the state is often both the perpetrator of human rights violations and the arbiter of justice. There is an urgent need for new imaginings and practices in ‘development’ that

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are sensitive to questions of equity and do not further marginalize already marginal groups. Policies and mind sets The RR package associated with the Narmada Project is a definite improvement on previous RR schemes (Parasuraman 1997). The Gujarat policy, for example, includes ‘land-for-land’ compensation and enjoins that the original standard of living of the oustees must be restored if not improved. Oustee household heads and major sons have been promised a minimum of five acres of land, compensation money, transport costs and a house plot. This was unlike any policy in the past and was, in part, responding to protest activities in the 1980s. Still, in practice, it has turned out to be badly flawed since displaced people have struggled to survive in a hostile environment and have encountered tremendous resource loss. In Malu, for example, we were told how compensation had largely focused on ensuring that oustee populations received five acres of land. But not only has land allotment been beset with administrative and logistical hurdles, women and married daughters have also been excluded from benefits. Widows have been cheated by their menfolk and even their sons and have thus been denied their rights to land. The land allocated has not been uniformly good. In Malu, oustees were often allocated waterlogged and stony land which took years to regenerate. The five acres of land have not compensated the oustees for other resources owned in the submerging villages (such as forest and river resources and grazing land for livestock). In general, the policies have not been designed with adivasis in mind and have not taken into consideration the intangible aspects of adivasi economy and culture. Over-emphasis on land has ignored the linkages between the land, forest, river and cattle that were so vital for the people’s economic and cultural well-being. In Malu and elsewhere, even today (some fifteen years after resettlement), health officials constantly visit the resettlement sites and dole out injections and medicine. But health problems persist, largely because officials have failed to understand oustee traumas and stress levels, as well as indigenous medicine which centred on forest herbs. The health services have been effective mainly in increasing bureaucratic control over oustee lives (see Mehta and Punja 2006). Furthermore, massive hurdles exist in implementing the land-for-land policy. This fact, along with the problematic framings of the policy, calls into question the government’s ability to rehabilitate the oustees in a pro-people manner. Rights and struggles over meaning Struggles against forced displacement highlight the high risks of displacement to livelihoods and the gross violations of a range of human rights. Struggles against displacement also extend to the symbolic realm. The Narmada case is particularly evocative. Local people are protesting to save their homes, the Narmada Valley and the Narmada river from damming for

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a variety of reasons. According to local cosmology, the Narmada is Mata (mother) and even holier than the River Ganga. Hence, the damming of the river was initially inconceivable for many of the area’s inhabitants. The river was useful for fishing, washing, bathing and riverbed cultivation in the summer. It also served as an artery for communication with relatives across the bank; it was the home to many holy temples and facilitated the transport of goods downstream (e.g. logs). The river was a kind of map that served as a point of reference for the people and connected its inhabitants with each other. It was also life-giving and the origin of creation in some adivasi knowledge systems, in which reverence for the river suffused people’s daily lives. Thus, struggles in both cases were not merely about the right to water with respect to physical access. Instead, the struggles also incorporated symbolic realms. These symbolic dimensions give rise to notions like, ‘How can they [the state] dam a mother?’ The symbolic meanings, however, are rarely understood by bureaucrats or policy-makers. In resettlement villages, officials believe that taps close to the house are infinitely better than fetching water from the river since they reduce women’s drudgery. By contrast, women had different views about what constituted drudgery since they felt robbed of their autonomy to fetch water from the river whenever they pleased. Thus, policy-makers are often blind to the non-material aspects of water, robbing it of its multifaceted nature and the cultural meanings that people attach to it in everyday contexts. Indifference to rights Oustees encounter refugee-like status in their own countries because their rights are sacrificed in favour of the ostensible rights of the majority population. This raises questions regarding their rights as citizens. There is also a marked lack of official endorsement to shift from policies and programmes that focus on the impacts and risks of displacement to upholding the rights of the displaced. For example, the World Bank, despite being one of the founding members of the World Commission on Dams (WCD), declined to adopt the rules of the WCD as the guiding principles of its operations. The WCD (2000) recommended, amongst other things, a decision-making process that should strive towards balancing the rights and risks of all stakeholders and, in particular, protecting the rights of vulnerable groups such as indigenous peoples. Furthermore, as Clark has demonstrated, the World Bank’s revised resettlement policy of 2001 dilutes some of the strength of its 1980 policy, which clearly states that displaced people should have their original standard of living improved or at least restored (Clark forthcoming). The revised policy no longer applies to those affected by ‘indirect’ impacts of a project (for example, the downstream impacts of a reservoir). Similarly, the focus on restoration of past incomes is a step back from embracing development-oriented objectives of improving livelihoods. It may also seriously disadvantage indigenous peoples, women and ethnic minorities who often lack formal legal rights to

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land, but whose rights are enshrined in customary arrangements. In sum, there is an overall indifference towards furthering the interests and rights of the weak and marginalized.

Conclusion This chapter has examined why rights continue to be violated with impunity in the context of oustee displacement. In part, this has to do with political processes that legitimize the rights violation in the interest of ‘national purpose’ and the ‘majority’. But as this chapter and other work demonstrate, such thinking is called into question when one looks at the political economy of these projects. Rights violations also take place due to sins of omission, which include poor institutional capacity, poor awareness of rights and the lack of means to seek legal redress. Sins of commission, by contrast, take place when rights are knowingly put at risk by governments and actors such as the World Bank and other international organizations mandated with protection of the displaced (as discussed by several authors in this volume, especially Harrell-Bond) due to a lack of commitment to the basic rights of marginalized people, clear anti-poor and elite biases and significant accountability gaps in providing redress for rights violations. In both cases, there is blurriness between policy and practice around rights and their violation, and, at times, there are overlaps between sins of omission and commission. This begs a few questions: Do human rights make a difference to displaced people? Has the protest movement been successful, even if it has not stopped the dam? I would join the other contributors to this volume in arguing that rights do and should matter. The success of high-profile resistance activities, such as those on the Narmada dams, depends on transnational alliances of NGOs, campaigns and movements. International human rights standards, as well as the policy directives of international organizations, such as the ILO and the World Bank, are evoked and adapted to grant salience to local struggles and campaigns. These informal mechanisms of claiming rights and seeking accountability have been powerful agents of change. They have led to cost and time overruns of the projects, even though very few projects have officially been called off. Success has been both symbolic and material. Even though many resisting oustees are still to receive compensation and rehabilitation, they are proud that they have been part of such a dynamic movement. As Noorjibhai, a villager from Mokhdi Maharashtra, told me in 2007: If there had been no protest movement, nobody would have got anything. At least now, many have received some land and compensation. I still refuse to leave my ancestral home. The government is incapable of providing us with just compensation. We are now aware of our rights. We

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have waged battles in the streets of all the major cities. We will continue to fight for our rights. Protest has also transformed public and political attitudes, as well as unleashed debates around social justice in forced displacement. As can be seen from the examples in this volume, more and more displaced people around the world are demanding compliance and answerability concerning their rights. The demands for accountability from those violating their rights will, therefore, increase. Barbara Harrell-Bond in the next chapter provides powerful insights into the struggles that refugees have embarked upon despite their vulnerable and marginalized position in society. Protests will not be going away and the process of rights-claiming by the displaced shows their importance in the lives of displaced people (see also Suleiman, this volume). Invariably, with economic globalization, corporate and state interest in land acquisition for infrastructure projects is also on the increase. Thus, it is urgent to have just infrastructure development processes that minimize displacement at all costs. When that is not possible, displacement must be accompanied by social processes that allow for ‘prior informed consent’ on the part of the project-affected and must be executed in a manner that does not compromise basic rights but makes them beneficiaries of the intended projects. Until now, this has never happened. Due to their marginalized position, oustees are often at the bottom of the pile in every country. There is a clear lack of will to take their rights seriously, and power differentials unfortunately allow for both national governments and global agencies to violate oustee rights with impunity. This is a process that must now be rolled back. Notes 1. This chapter draws on both personal experiences and research in the Narmada Valley. More formal research in 2000 and 2002 was made possible with a DFID/ESCOR funded project on ‘Gender, Displacement and Resistance: Drawing Lessons from the Narmada Experience’. Funding from the Migration Development Research Centre allowed me to make trips in 2004 and 2007 to update my empirical knowledge. I am very grateful to the women and men of the Narmada Valley and the activists of the Narmada Bachao Andolan for their warmth, inspiration and friendship. I also thank the participants at the several workshops on rights and forced migration for their valuable comments. Responsibility for any errors rests with me. 2. Adivasi literally means ‘original/earliest settler’. This term is used to designate the indigenous peoples of India, officially known as ‘scheduled tribes’, who make up about 7 per cent of the entire population. 3. The protests of displaced people become stronger and more visible over the years due to easier access to the media and international coverage. The chapters by Grabska and Harrell-Bond (this volume) show how refugees mobilize around their rights and claim them through protest. Harrell-Bond’s chapter in particular provides reflections on the effectiveness of protests by refugees against an agency that is supposed to protect them, the UNHCR.

Forced Displacement in India’s Narmada Valley 219 4. In my earlier work (Mehta 2005), I have discussed how large dams have been portrayed as the panacea for water scarcity. I demonstrated that water-scarce Kutch in western India, often claimed by government officials to be one of the main beneficiaries of the Sardar Sarovar Project (SSP), does not stand to gain significantly from the dam, but could instead be better served by locally appropriate solutions. For similar analyses see Morse and Berger (1992) and WCD (2000). 5. Even the International Council on Human Rights Policy (ICHRP) notes that when indigenous peoples use the Supreme Court the outcomes can be variable. For example, Oaxaca Indians found that the Mexican Supreme Court refused to accept their evidence (ICHRP 2004: 22). 6. See also Arundhati Roy’s evocative essay on ‘The Greater Common Good’ (1999).

References Asif, M. 2000, ‘Why Displaced Persons Reject Project Resettlement Colonies’, Economic and Political Weekly, 10 June: 2006–8. Bretton Woods Project 2004, ‘World Bank Accountability: Demand for Reparations Won’t Go Away’, Bretton Woods Update, London, UK. Cernea, M. M. 1997, ‘The Risks and Reconstruction Model for Resettling Displaced Populations’, World Development 25(10): 1569–87. Cernea, M. M. 2000, ‘Risks, Safeguards and Reconstruction: a Model for Population Displacement and Resettlement’, in M. Cernea and C. McDowell (eds), Risks and Reconstruction: Experiences of Resettlers and Refugees, Washington, DC: World Bank. Clark, D. forthcoming, ‘Overview of Revisions to the World Bank Resettlement Policy’, in L. Mehta (ed.), Displaced by Development: Confronting Marginalisation and Gender Injustice, New Delhi: Sage Publications. Clark, D. and S. Bhardwaj 2003, ‘The Impact of the 2002 Submergence on Housing and Land Rights in the Narmada Valley’, Report of a Fact-Finding Mission to Sardar Sarovar and Man Dam Projects, Habitat International Coalition, Housing and Land Rights Network, http://www.hic-sarp.org/documents/narmada.pdf (accessed 9 February 2005). Cullet, P. 2000, ‘Narmada Dams and Human Rights’, 17/14 Frontline, http://www.ielrc. org/content/n0003.htm (accessed 18 March 2005). Dreze, J., M. Samson and S. Singh (eds) 1997, The Dam and the Nation: Displacement and Resettlement in the Narmada Valley, Delhi: Oxford University Press. Dwivedi, R. 2002, ‘Models and Methods in Development-induced Displacement’, (Review Article), Development and Change 33(4): 709–32. Fernandes, W. and E. G. Thukral (eds) 1989, Development, Displacement, and Rehabilitation, New Delhi: Indian Social Institute. Goetz, A. and R. Jenkins 2004, Reinventing Accountability: Making Democracy Work for Human Development, Basingstoke: Palgrave Macmillan. Goldsmith, E. and N. Hildyard (eds) 1992, The Social and Environmental Effects of Large Dams, Volume III: a Review of the Literature, Cornwall: Wadebridge Ecological Centre. International Council on Human Rights Policy (ICHRP) 2004, Enhancing Access to Human Rights, Versoix, Switzerland: ICHRP. Koenig, D. 1995, ‘Women and Resettlement’, in R. Gallin, A. Ferguson and J. Harper (eds), The Women and International Development Annual, Vol. 4. Boulder, Colorado: Westview, pp. 21–51.

220 Forced Displacement McCully, P. 1996, Silenced Rivers: the Ecology and Politics of Large Dams, London: Zed Books. McDowell, C. (ed.) 1996, Understanding Impoverishment: the Consequences of Development-Induced Displacement, Oxford: Berghahn. Mehta, L. 2000, ‘Women Facing Submergence: Displacement and Resistance in the Narmada’, in V. Damadoran and M. Unnithan (eds), Identities, Nation, Global Culture, New Delhi: Manohar. Mehta, L. 2005, The Politics and Poetics of Water: Naturalizing Scarcity in Western India, New Delhi: Orient Longman. Mehta, L. (ed.) forthcoming, Displaced by Development: Confronting Marginalisation and Gender Injustice, New Delhi: Sage. Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-based Approaches in Forced Migration’, Working Paper T4, University of Sussex, Institute of Development Studies. Mehta, L. and A. Punja 2006, ‘Water and Well-being: Explaining the Gap between Official and Displaced People’s Perceptions of Water’, in A. Baviskar (ed.), Waterscapes: the Cultural Politics of a Natural Resource, Delhi: Permanent Black. Morse, B. and T. Berger 1992, ‘Sardar Sarovar: Report of the Independent Team’, Ottawa: Research Futures International. Narmada Control Authority (NCA) 2005, ‘Provisions of NWDT Award and States Resettlement & Rehabilitation (R&R) Policies’, http://www.ncaindia.org/rnr prov.htm (accessed 18 March 2005). Parasuraman, P. 1997, ‘The Anti-Dam Movement and Rehabilitation Policy’, in J. Dr`eze, M. Samson and S. Singh (eds), The Dam and the Nation: Displacement and Resettlement in the Narmada Valley, Delhi: Oxford University Press. Plant, R. 1998, ‘Citizenship, Rights, Welfare’, in J. Franklin (ed.), Social Policy and Social Justice, Cambridge: Polity Press. Raj, P. 1991, ‘Facts: Sardar Sarovar Projects’, Gandhinagar: Narmada Nigam Limited. Rajagopal, B. 2000, ‘Human Rights and Development’, World Commission on Dams Submission, http://www.dams.org/kbase/submissions/showsub.php?rec=INS206 (accessed 18 March 2005). Rayner, S. 2003, ‘Democracy in the Age of Assessment: Reflections on the Roles of Expertise and Democracy in Public-Sector Decision Making’, paper presented at the conference ‘Resources: Conceptions and Contestations’, Social Science Research Council, Kathmandu, Nepal, 7–8 January. Robinson, C. 2003, ‘Risks and Rights: the Causes, Consequences, and Challenges of Development-Induced Displacement’, Occasional Paper, Brookings Institution, SAIS Project on Internal Displacement. Roy, A. 1999, ‘The Greater Common Good’, Frontline 16(11), www.flonnet.com/fl1611/ 16110040.htm (accessed March 2005). Scott, James 1998, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, New Haven and London: Yale University Press. Scudder, T. 1996, ‘Development-Induced Impoverishment, Resistance and River-Basin Development’, in C. McDowell (ed.), Understanding Impoverishment: Consequences of Development-induced Displacement, Oxford: Berghahn Books. Scudder, T. and E. Colson 1982, ‘From Welfare to Development: a Conceptual Framework for the Analysis of Displaced People’, in A. Hansen and A. Oliver-Smith (eds), Involuntary Migration and Resettlement: the Problems and Responses of Dislocated People, Boulder: Westview Press, pp. 267–87.

Forced Displacement in India’s Narmada Valley 221 Thukral, E. 1992, Big Dams, Displaced Peoples: Rivers of Sorrow, Rivers of Joy, Delhi: Sage Publications. World Commission on Dams (WCD) 2000, Dams and Development: a New Framework for Decision Making, London and Sterling, VA: Earthscan Publications Ltd. Yong. C. 2006, ‘Dam-Based Development in Malaysia: the Temmenggor and Sungai Selangor Dams and the Resettlement of the Orang Asli’, PhD dissertation, University of Sussex.

11 Protests Against the UNHCR to Achieve Rights: Some Reflections Barbara Harrell-Bond

Introduction Displaced people, be they refugees or oustees, resort to protest as a way of claiming rights and seeking justice when their rights are violated (see chapters by Grabska, Mehta in this volume). It is not unusual to read about refugee protests, hunger strikes, or even suicides in Europe, Australia or North American countries when they have been detained facing prolonged incarceration or immediate deportation,1 but during 2005 there were unparalleled numbers of reports in the international media on refugee protests in the ‘global South’,2 from places ‘as diverse as Ghana, Nepal and Yemen’ (Sylvan 2005: 1). Topping them all, as far as press coverage was concerned, was the sit-in outside the Cairo office of the UN High Commissioner for Refugees (UNHCR) (for example, Associated Press 2005, 2006; Slackman 2005; Whitaker 2006; and also see FMRS 2006 for more press coverage references).3 It also lasted for an unprecedented length of time – three months – from the end of September until 30 December (see Grabska, this volume, and Gomez et al. 2005a, 2005b).4 The difference with these protests that are happening in the ‘global South’ is that refugees are demonstrating against the UNHCR, not the governments that are hosting them. In the case of the Cairo demonstration, policies of both the UNHCR and the Egyptian state were explicitly addressed, but refugees perceived the UNHCR as somehow responsible for protecting the rights that the government was either not able or not willing to provide or to guarantee. Are protests and demonstrations that occur in the South and against the UNHCR a new phenomenon, signalling a realization among refugees that their rights are being denied and that demonstrations, hunger strikes and sit-ins are their only way to bring attention to the violations of their rights? Or are these events just suddenly being noticed by journalists? The evidence suggests the latter. Demonstrations by refugees against violations of their rights (or against practices that are perceived as affronting their dignity) are as 222

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old as the efforts by any military, government or humanitarian organizations to control them. Usually, however, they occur far from the eyes of the media. My qualifications for writing this chapter stem from my years of experience of studying and observing refugee situations in many parts of the world, particularly in camps. My career in refugee research began in 1982 when I founded the Refugee Studies Programme (now Centre) at the University of Oxford, which I directed until my retirement in 1996. I then spent three years supervising and participating in a study of refugee rights in Kenya and Uganda, with teams of lawyers in each country. In 2000, I was invited to advise The American University in Cairo in establishing a graduate diploma in refugee studies. I have been teaching and studying refugees here since that time. This chapter will address the questions of just who is responsible for the protection of refugee rights, and what should happen when the UNHCR is responsible for violations, and suggest possible ways forward. The discussion of responsibility for the fulfilment of refugee rights is also discussed in this volume by Suleiman, Trad and Kagan in the context of Lebanon and Grabska for Egypt. It should be stressed at the outset that when the 1951 Convention was drafted, the idea of treaty bodies to which governments report on conformity with international human rights law (with shadow reports presented by NGOs) had not been instituted by the UN. In fact, there is no system of accountability for the observation of refugee rights other than the international court at The Hague. It is highly unlikely that any state would bring another state to task for its failures to protect the rights of refugees. And, like all other UN intergovernmental bodies, there is no system to impose accountability on the UNHCR for its actions vis-`a-vis refugees (see Barnett and Finnemore 2004; Verdirame 2001).

Protests against the UNHCR When refugees do protest against the UNHCR over violations of their rights, punishments are usually swift and carried out either by the UNHCR’s own paid security or the police/military, who are called in to disperse them with varying degrees of brutality (see also Harrell-Bond 2002).5 I began research on refugees in 1982–3 among Ugandans in southern Sudan and my field notes (Harrell-Bond 1986) are scattered with reports of protests by the refugees, both as individuals and as groups. For example, there were protests in various camps at the failure of the UNHCR to distribute food that refugees knew was lying in the stores, while they were going without.6 There were tense moments when, after several days of waiting, one refugee threatened to hang himself outside the UNHCR’s office in Juba, if his request to see an official was not attended to. Another wrote a letter, protesting the treatment received from the UNHCR’s staff members as ‘inhumane, uncultured, unreasonable’, reminding them that he was neither ‘a statue nor a

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picture’ (Harrell-Bond 1986: 305–9). In August 1982, I witnessed refugees sitting on cars belonging to UNHCR staff in the parking lot, protesting their exclusion from the office.7 Such incidents do not receive attention because journalists are rarely on the spot. Untold numbers of refugees resort to writing to UNHCR’s Geneva office in vain attempts to report their complaints of mistreatment, unfair procedures or corruption allegedly committed by field officers.8 This approach can be dangerous because Geneva sends allegations of corruption back to the field office addressed to the accused officer, asking for comments. On the face of it, this is a fair procedure when there are allegations of corruption, but being identified by a UNHCR field staffer as having written complaints to Geneva may be hazardous. In the 1980s, one such Rwandan refugee in Kenya told me what happened when he reported to Geneva the corruption he encountered when he participated in a loan scheme. After writing to Geneva, he was called in by the UNHCR officer in Nairobi whom he had accused and threatened with having his refugee status withdrawn.9 During the 1997–2000 research in Kenya and Uganda, refugees mounted a number of protests against the UNHCR, demanding their rights. For example: in Kenya they protested against the forced evictions from camps around Mombasa (Verdirame and Harrell-Bond 2005: 138);10 in Uganda, against the humiliation of being stamped with gentian violet on their skin to receive food rations in Nakivale camp (ibid.:140); and in Adjumani District, in 1997, refugees protested their forced eviction from Ogujebe reception centre (ibid.: 161–4, 239–40). Ogujebe had been home to some 100,000 refugees who had been settling there since 1986. It had, in fact, become the largest market in this part of Africa. Eviction involved calling in the army and flattening the whole place with bulldozers: homes, shops, stores, offices, schools, including the destruction of a 100-bed hospital – all to prevent people from returning to Ogujebe. In the case of refugees in Kenya protesting the lack of food, as well as the humiliating system of distributing it, by demolishing the food distribution centre in Kakuma,11 collective punishments 12 were imposed by the UNHCR on the entire camp. In the first instance, food was withheld for twenty-one days from the entire camp population and seven leaders were charged ‘with destroying UNHCR property, inciting refugees to rioting and stealing property’ (ibid.: 193).13 In 1996, after a similar incident, not only was food distribution suspended for fourteen days, but the ‘incentives’ paid to some refugee workers were withheld.14 After the first incident in 1994, the leaders were arrested and imprisoned in Nairobi at the UNHCR’s behest. Fortunately, enough money was raised amongst the refugees to employ a lawyer; the case was heard in Kakuma and all were acquitted. Having failed to find someone to punish, the UNHCR picked on an Ethiopian refugee who had given lectures on human rights in Kakuma as the ‘troublemaker’, alleging that his lectures had been the cause of

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the protests. Against his will, he was transferred from Kakuma to Dadaab and warned, ‘Once in Dadaab, you will be expected to refrain from any conduct likely to disrupt public order in the camp. This includes the organisation of such lectures as you conducted in Kakuma Refugee Camp’ (Verdirame and Harrell-Bond 2005: 100).15 In both Kenya and Uganda, nationals work alongside refugees in the same positions with the same qualifications, but with staggeringly different pay scales.16 Moreover, in addition to salaries, the nationals are also paid ‘hardship’ allowances because of camp conditions. On at least one occasion, Sudanese refugees in Uganda attempted to wrest their rights through conventional methods. In 1993, supported by their Ugandan colleagues, refugee teachers had formed a union. In 1997, reviewing their pay situation as compared with the nationals teaching alongside them, they decided to go on strike. They were supported in the strike by their Ugandan colleagues. There was no lawyer resident in the district where the camp is situated to help them bring their case to court against the implementing NGO. What was the result of their strike? The head of the Jesuit Refugee Service (JRS) – the UNHCR’s implementing partner – threatened them with dismissal. He advised them of the futility of their strike by pointing out that paying refugees ‘incentives’ was UNHCR policy.17 He went on to remind them that the schools were, after all, ‘refugee schools’ and so they were, by definition, employed by the parents and not the JRS.18 They should direct their complaints about pay to the parents! The UNHCR (and hence its NGO implementing partners) does not follow the labour law in host countries, despite the fact that most countries are state parties to the 1951 ILO Convention on Equal Remuneration and the C100 Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, not to mention other human rights conventions that protect refugees under international law (see Hathaway 2005). Closer to home, this practice also violated the Ugandan Constitution that provides for equal pay for equal work. And the UNHCR itself should have realized that its own policy is against the spirit of the 1951 Convention and is an outright violation of Article 17(2) that states that when a refugee has been resident in the host country for three years no restrictions are permitted to the right to work (for equal pay) (Hathaway 2005).

The Cairo demonstration: a peaceful sit-in In September 2005, a few dozen refugees began a peaceful sit-in just outside the UNHCR offices to protest the violations of their rights in Egypt. They were soon joined by others – up to an estimated 3,000 – and began issuing documents to the UNHCR listing their grievances (FMRS 2006).19 The immediate background to this peaceful sit-in relates to the imposition of a new policy by the UNHCR.

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On 1 June 2004, as a result of the ceasefire declared earlier in the year between the government of Sudan and the Sudan People’s Liberation Army (SPLA), the UNHCR suspended refugee status determination (RSD) interviews for all asylum seekers from the Sudan, regardless of whether they originated from the south, Darfur, or elsewhere. On registration of new arrivals, the UNHCR instead provided them with yellow cards, which offered protection against refoulement (forced repatriation).20 In June 2004, an Egyptian NGO sought a meeting with the UNHCR to protest the decision to stop all interviews with Sudanese refugees. Although the meeting was scheduled for noon, large numbers of Sudanese gathered from early morning outside the office of the UNHCR. The situation turned nasty despite the best efforts of the HCR Representative in Cairo to try to talk with the crowd. Worse still, the Egyptian NGO that had called the meeting did not turn up, police were called, tear gas was used and twenty-two people were detained (FMRS 2006). After this event, refugees were no longer allowed to wait directly outside the UNHCR office; they were required to remain in the Mustapha Mahmoud Park, about one block away. From there, to be allowed inside the offices, they had to be escorted by a member of staff or UNHCR security. A report on the situation by the Forced Migration and Refugee Studies (FMRS 2006) programme states that: UNHCR’s holding of asylum seekers and refugees ‘at arm’s length’ in this fashion can be seen as a physical representation of the increasing distance between UNHCR and the population it purported to protect. Justified or not, Sudanese refugees’ long-standing frustration with UNHCR’s lengthy procedures, diminishing resources for assistance, and perceived low rate of acceptance (let alone resettlement), as well as their dissatisfaction with the interview process and their treatment by some UNHCR staff and security personnel, combined to fuel loss of trust in the agency. (Azzam 2005: 11) In April 2005, a course on refugee/human rights law in Arabic was taught at Forced Migration and Refugee Studies (FMRS) at The American University in Cairo. After this course, four of the refugees residing in Arba w nuss, a squatter settlement on the outskirts of Cairo, formed a reading group to inform themselves and their fellows of refugee rights. They photocopied books and articles from my library and kept coming back for more literature. They did not disclose to me what they were planning until the day after the sit-in began.21 On 29 September 2005, a few dozen Sudanese refugees gathered in the Mustapha Mahmoud Park: FMRS reports that ‘The organizers referred to themselves in written publications in English alternately as Refugees Voice in Egypt, Refugee Voice in Egypt, Refugee’s Voice, and The Voice of Sudanese Refugees in Cairo’ (ibid.: 18).

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The UNHCR’s response to the demonstration Throughout the sit-in, the UNHCR exercised tight control over its public posture vis-`a-vis the protest. It refused to allow its staff to go the Moustafa Mahmoud Park and interact with the refugees directly until 17 December (after a delegation from Geneva had arrived to advise on the policy of the Cairo office). The agency leadership insisted on meeting and negotiating only with the leaders of the demonstration, even as it was denouncing them as ‘self-appointed’ and accusing them of creating false expectations to lure people to the park (FMRS 2006: 56). In the case of this sit-in protest against the UNHCR, the Cairo office was unable to act as it usually does – expel them by force – because the refugees were not on their property: it could only request the Egyptian authorities to disperse the demonstrators, which they did – three times in writing.22 What it could do was to close its offices, stopping all its services to all refugees, whether or not they were Sudanese, arguing staff security as its justification. It also provocatively claimed that the protestors were not of concern to the UNHCR, meaning that they had all been determined not to be refugees and their files closed (FMRS 2006: 56). Several of my students23 began interviewing the demonstrators in the park (see for example, Schaeffer 2005) and discovered that the vast majority of them held ‘blue’ cards, indicating full refugee status, or ‘yellow’ cards, indicating registration with the UNHCR. After a delegation came from Geneva, as noted above, at least one attempt was made by UNHCR employees to talk to all the demonstrators. The organization of the demonstration The park was kept amazingly clean given the concentration of people. Women and children were separated by hanging cloth partitions. For toilets, the refugees relied on the facilities of the mosque and flats of nearby friends. For food, at first money was collected and someone fetched sandwiches to eat, but eventually some of the women set up stoves and cooked. Towards the end, something approximating a ‘camp economy’ emerged, with individual refugees selling small items to the others. Visitors to the park had the opportunity to contribute money for food in a basket kept near the gate and both Egyptians and foreigners gave. Some brought blankets because of the increasingly bitter weather. The ground was also covered with blankets and as the numbers grew, the park took on an air of a permanent ‘camp’. Many Sudanese brought all of their possessions to the park and apparently abandoned their flats – or had been evicted from them for non-payment of rent. Many of those joining the demonstration were new arrivals who could not register with the UNHCR because the office was closed and they had nowhere else to stay. The crowd grew in the evenings as those who had jobs joined the protesters for the night.

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Ironically, their seclusion in the park offered a situation of safety: they were not being hounded with racial taunts on the street; women did not fear sexual harassment or molestation from Egyptian men. Although there was not much room, children could play freely in the sun without fear, a situation they did not enjoy in the neighbourhoods where they lived. Refugees arranged internal security. Men and women wearing red aprons guarded the openings to the park, but the police, with whom they fostered good relations, would assist in preventing anyone to whom the refugees objected from entering. Twice daily there were pep talks inside the park to keep up morale, to inform the group of the latest progress of the ‘negotiations’ with the UNHCR, and to maintain discipline. The population was asked to vote on various matters by a show of hands. Discipline was at first maintained by persuasion, but drunkenness and disorderliness were punished by tying the culprit to the tree in the centre and beating him, shrouded from onlookers by hanging blankets. As time went on, divisions among the demonstrators emerged concerning what their response to the UNHCR should be, but anyone who promoted their dissembling was threatened with the same punishment as those who were disorderly. Several refugees who went to the park to try to persuade the group to disperse had to run away to avoid capture by the park’s ‘security’.24 In an effort to keep the numbers in the park as high as possible, allegedly individuals would call their acquaintances and say ‘the plane is coming tomorrow’, implying that the hope that all would be resettled elsewhere was among the motives of many for the demonstration. In fact, one unlucky Sudanese packed up all his belongings, including a television set, and brought them to the park on the last day before the violent dispersal. The park was encircled by banners which attempted to define the purpose(s) of the demonstration. Although many were aimed at the intolerable conditions they were experiencing in Egypt – referring to racial abuse, sexual harassment, lack of the right to work and lack of educational opportunities – they were also aimed at pointing out the UNHCR’s failures to ‘protect’ them. One banner announced, ‘We are victims of mismanagement’, another, ‘If UNHCR cannot solve our problems, take us to another country.’ There were long strips of cloth covered with the photographs of men and women and children who were said to have gone missing in Egypt (see FMRS 2006 for more details). As time went on – the demonstration coincided with Ramadan – there were increasing fears for the safety of the demonstrators. No one could believe that they would be allowed to remain in the park over Eid el-Fitr, the feast celebrating the end of Ramadan. But police brought brightly coloured cloth, normally used to make tents on festive occasions and at funerals in Egypt, and encircled the entire park so that those coming to pray at the popular mosque next to the park would not be able (or forced) to view the demonstrators.

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When the police attack finally came, it was almost a complete surprise. The number of police had increased over the day, but they assured the refugees that this was only to protect them from a threatened Brotherhood demonstration in front of the mosque.25 By the time the large number of buses, military equipment and troops had arrived, the police had closed off the road and it was too late to escape (Dadrian 2006). The Egyptian government response to the sit-in That the Egyptian government allowed the demonstration to continue past the first day was a complete surprise to all observers; it was in such a total contrast to the usual reaction of police to Egyptian demonstrations. For three months, police were stationed all around the park to ‘protect’ the refugees who expressed feeling quite secure. Refugees talked and joked with the police and no doubt the many banners in Arabic hung around the park were a source of ‘education’ about the refugees’ plight for the police as well as those who passed by. However, on the night of 29 December, all pleasantries ceased (see Dadrian’s (2006) account of ‘The Night the Screams Never Stopped’). During the afternoon, the roads around the park were blocked. At about 10 p.m. buses started arriving and the police began negotiating with the refugees to leave the park and board the buses, promising they would be taken to ‘better camps’. Refugees asked to be allowed to send a few people to see where they would be taken, but this request was refused. After some hours, water hoses sprayed the refugees. Still they refused to move, probably fearing deportation; instead they gathered the women and children in the centre and covered them with plastic to keep them dry.26 Finally, as dawn began, the police brutally attacked with batons, forcing the refugees onto buses. Some refugees attempted to defend themselves and reportedly some police were injured. One policeman remarked, caught on camera by Ahmed El Kady, ‘They said to us before, ‘‘Why do you let them stay here?’’ Now they say, ‘‘How could you do that?’’ ’27

Achieving refugee rights: who is responsible? Who is responsible for upholding the rights of refugees? Unfortunately for refugees in today’s world, it is the state that hosts them. The 1951 Convention, the first post-Second World War piece of international human rights legislation, not only sets out the definition of who qualifies for refugee status but details the rights that the host state is duty bound to uphold (see Hathaway 2005). These rights are underpinned by the principle of treating refugees in all situations either as favourably as aliens generally in the same circumstances (for example, Articles 13, 15, 17(1), 18, 19, 21 and 22(2)), or as nationals (for example, Articles 14, 16, 17(3), 20, 22(1), 23, 24 and 29). For example, although the drafters recognized the fact that giving refugees an immediate right to work might be difficult in particular

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economic circumstances, it provides refugees the right to be self-employed immediately, but that under no circumstances should they be prohibited from working (without the requirement of a permit) after they have been resident three years.28 The right to education is guaranteed by the Convention for elementary students and the Convention goes on to urge state signatories that in relation to any costs accruing for higher education, a refugee should be treated no less favourably than any other alien in the country.29 States could and did enter reservations to the 1951 Convention as regards granting certain derogable rights. For example, as discussed by Grabska in this volume, upon signing the 1951 Convention, Egypt notified the UNHCR of its reservations to several of the articles. Ironically, everyone, including the UNHCR, continues to assume that these reservations are in force, but when Egypt ratified the Convention in 1980 and published it in its Official Newspaper (5 November 1981), it did not include or refer to these reservations.30 Does this mean that the UNHCR has no role at all in ensuring the protection of refugee rights? The drafters of the Statute and the Convention were concerned with European refugees who, at the time, were fleeing to other European countries and being resettled in the ‘West’, all of which were ostensibly democratic. In its 1950 Statute the drafters limited the role of UNHCR to promoting the Convention and to monitoring the performance of states.31 Actions by UNHCR staff to promote the Convention have been largely limited to diplomatic efforts to convince states to ratify it and in this regard, the UNHCR has registered some significant success; today 146 out of 192 states are party to the 1951 Convention and/or the 1967 Protocol; Montenegro was the latest – in October 2006 – to have become a state party.32 Many of the countries that have not ratified the 1951 Convention or its 1967 Protocol have ratified the Organization of African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa, which expands the definition of who is a refugee to include people fleeing situations of war and foreign occupation, but does not include the rights as set out in the former; others subscribe to the 1984 Cartagena Declaration on Refugees. ‘The Declaration is best known for widening the definition of refugees to include those who have fled their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances which have seriously disturbed public order’ (UNHCR 2006, emphasis added). Monitoring the performance of states’ compliance with the provisions of the Convention, that is, documenting when refugee rights are violated, is quite a different issue. It is common for UNHCR country representatives to argue that they are in a country at its invitation and thus must be careful not to offend it. However, Erika Feller, now the Assistant High Commissioner for Protection, states that the ‘UNHCR does not have to be invited to become involved in protecting refugees. This is an obligation, regularly recognized

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in this committee, and it is what makes UNHCR’s mandate distinct, even unique, within the international system’ (UNHCR 2006). She went on in her speech to detail violations of rights of refugees: ‘30 percent of all refugee children are not regularly attending school . . . military recruitment of children occurred in some 6 percent of refugee camps . . . fewer than 50 percent of refugees in 82 countries surveyed enjoyed full freedom of movement and the right to work . . . ’ Such statistical compilations of violations would suggest that the UNHCR is ‘monitoring’ states’ performance, but what effect do such generalized and anonymous reports have? And, presuming this information has been collated from the annual protection reports that representatives of the UNHCR have to write, it is interesting to review the contents of such reports.33 Describing a 1999 protection report for Kenya, we (Verdirame and HarrellBond 2005: 299–300) noted: ‘after a truthful, albeit selective, account of the human rights violations suffered by minors in Kakuma camp, the impulse to insert a utopian description prevailed’. It sounded more like a ‘brochure for a summer camp’ than a protection report about refugee children who included one of the most deprived, traumatized and malnourished groups of adolescents in the world – the Sudanese ‘walking boys’ in Kakuma camp.34 The key problems that affected the walking boys – forced recruitment and malnutrition – were glossed over. Another telling example of ‘glossing over’ by the UNHCR in dealing with refugee complaints occurred in Uganda. Kagan (2006a)35 relates an example where, unusually, the UNHCR solicited the views of encamped refugees concerning their living conditions in Uganda. They complained by letter that their land was insufficient to grow food, they lacked access to education, health services were inaccessible during the rainy season and, finally, that they preferred to move to the city as they had professional qualifications that were not being utilized. Unfortunately, when the Geneva UN official who was to hear these problems arrived, rather than being read the contents of these letters, he was informed how ‘grateful’ the refugees were to Uganda as a host and to the UN for all of its services! This is another example of the ‘voicelessness’ of refugees. As Mark MallochBrown, writing in 1991, put it: ‘We work for no other organization in the political, governmental, or commercial world which has such an absence of mechanisms for determining citizen or consumer satisfaction’ (KRC 1991). At least two factors contribute to UNHCR field staff members’ lack of forthrightness in reporting the violations of refugee rights. They are reporting to superiors who have a say in promotions or reassignments: ‘All people have a strong instinct for self-preservation and self-promotion, and it would be na¨ıve to expect bureaucrats to report candidly on their failures . . . field reports [become] an opportunity for showing ‘‘all the good work’’ that [is] being done’ (Verdirame and Harrell-Bond 2005: 301).36 Secondly, all UNHCR officials are keenly aware that the UNHCR depends on voluntary contributions. Even though their readership is restricted, protection reports that

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throw up institutional failures put the UNHCR in an ‘invidious position of having to decide whether to suppress these problems or risk spoiling the institutional image’ (ibid., see also Kaiser 2004; Wigley 2005, 2006).37 To summarize, the protection of the rights of refugees is impeded by the UNHCR practice of reducing their reporting on violations to anonymous statistical exercises that do not even ‘name and shame’ the guilty states, the concerns of field staff which lead them to conceal facts in their reporting to headquarters, and the institutional priority – fundraising – which leads it to avoid reporting anything that would tarnish its image.

When the UNHCR is the violator of refugee rights A truthful ‘protection report’ about the situation of refugees in Kenya in 1999 would have had to account for the power over refugees that the UNHCR holds, particularly in camps, but also when they are responsible for refugee status determination (RSD) and for the violations of refugees’ human rights that result from its actions as individuals or as an institution (ibid.: 301). The imposition of collective punishments on refugees in Kakuma, the violations of procedural fairness in the UNHCR’s refugee status determination in Kenya and Uganda, the demolishing of camps around Mombasa and the destruction of Ogujebe Transit Centre in Uganda were never mentioned in any protection report from either country. But these examples hardly exhaust the examples of the UNHCR as violator of the human rights of refugees. In our research in Kenya and Uganda, as some examples above illustrate, we found that both NGOs and UNHCR staff are often not only complicit but that individuals were active agents in such violations (see also Harrell-Bond 2002; Walkup 1997). Peter Dennis, in a student paper, wrote: In February of 2002, a report released jointly by UNHCR and Save the Children-UK found widespread sexual abuse in refugee camps in West Africa. The reports found that 70 people – workers from more than 40 non-governmental organizations and UN agencies – were suspected of sexually abusing teenagers, ‘much of it allegedly perpetrated by workers locally employed by national and international NGOs as well as by UN agencies’.38 He also reports that while working in Sierra Leone he became involved in the plight of eleven Liberian refugee youths who had been unjustly held in a prison in Kenema: After securing their release I was told by the Court Clerk that I would no longer be welcomed within the court. The general view was that these refugees were troublemakers and those organizations, including the local NGO I was working with, by securing the release of these youths, were

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not working in the best interest of community. In addition, the magistrate called me into his office to state that this was the last time he would do such a ‘favor’ and if I ever expected a similar courtesy in the future, I was ‘sorely mistaken’. These words were especially troublesome as seven other refugees were being held in the prison awaiting trial, and UNHCR had shown little ability to monitor the court’s activities. (ibid.) When such violations occur, what recourse do refugees have? Both the long and short answer is ‘none’. UNHCR employees, including all local employees, have immunity from prosecution that can only be withdrawn by the UN Secretary-General, something which rarely happens. On 14 June 2006, Asylum Access (www.asylumaccess.org), made a submission to the UN Redesign Panel on Internal Justice, which was actually set up only to ‘improve its system of internal administrative justice for resolving disputes involving UN staff’. The submission states that the mandate of the Panel neglects the wider issue of external administrative justice . . . We urge the Redesign Panel to include in its final report a clear recommendation that the United Nations establish mechanisms of external administrative justice as well as internal justice . . . Around the world and especially in Latin America, Africa and Asia, hundreds of thousands if not millions of people depend on UN agencies to carry out mandates established by the General Assembly and other main bodies of the UN. Democratic governments have developed sophisticated systems of administrative justice to provide safeguards against error and arbitrariness by executive agencies in carrying out such mandates. Yet after more than six decades, the UN has few mechanisms by which people who depend on its executive agencies can challenge decisions or hold them accountable to their own mandates. (Kagan 2006b: p. 1, para 4) Kagan goes on to point out that administrative justice is a basic institutional gap within the UN ‘long overdue for reform’: The gap has its roots in the foundation of the UN as an inter-governmental organization. The 1946 Convention on the Privileges and Immunities of the United Nations39 provided the UN with ‘immunity from every form of legal process’ in national courts.40 This was essential to ensure the UN’s independence, but it also insulated the UN from judicial accountability. It should be noted, though, that the Convention on Privileges and Immunities mandated the UN to create its own dispute resolution mechanisms to fill the gaps left by its broad immunity.41 . . . The UN has no judicial mechanism to allow . . . individuals to hold UN agencies accountable to their mandates or to general principles of human rights law. (ibid.: p. 3, para 11)

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He concludes this submission by calling on the Panel to recommend ‘clearly that internal justice alone must only be the beginning of administrative justice reform at the UN, and that external justice by which UN agencies may be held accountable to the many people who depend on them is an even greater need’ (ibid.: p. 3 para.13). As this chapter was being completed, 211 Ethiopian refugees were on hunger strike at the UNHCR gate in Khartoum, protesting against the arrest and refoulement of other Ethiopians who are being rounded up and deported (Debteraw 2006). ‘The hunger strikers kindly request the following: Ethiopians all over the world to voice their concern; and Ethiopian media outlets to highlight their demands and the ongoing abusing of Ethiopians’ (ibid.). There is a very long history behind this situation, but in short, the UNHCR evoked the Cessation Clause (Article 1C (1–6) of the 1951 Refugee Convention), cursorily interviewed refugees who had lived for some three generations in Sudan and determined most of them no longer to be refugees (Fitzpatrick and Bonoan 2003; Hadi 2004). Under present conditions, and without dedicated lawyers to take up their cases, this and other refugee protests and demonstrations appear to be doomed to failure. Most likely they will lead to bloodshed and, as in Cairo, the utter despair and hopelessness of the surviving refugees.

A way forward: what about the UNHCR – can protests ever be effective? What possible way forward is there to protect the rights of refugees? Most are being hosted in states that do not respect the rights of their own citizens, let alone uphold the rights of strangers in their midst. Most human rights NGOs that work in these countries are concerned with the rights of citizens, not with those rights that refugees should enjoy. A remarkable exception to this depressing picture has occurred. An Iranian group42 took a case against the Turkish government to the European Court of Human Rights which ruled on 22 June 2006 that the UNHCR’s decision to deny refugee status to an Iranian couple was erroneous (see D. and Others v. Turkey, www.rsdwatch.org). The woman had been refused refugee status three times by the UNHCR’s Ankara office. She had been sentenced by an Iranian Islamic court to 100 lashes for fornication, but the UNHCR claimed she would be subject only to ‘symbolic application of the sentence’ and it was therefore ‘safe’ for her to return. The European Court of Human Rights ruled that the UNHCR incorrectly rejected the couple’s refugee application. That this case could be brought to the European Court occurred under the peculiar situation that obtains in Turkey. Turkey has not signed the 1967 Protocol, thus only accepts European refugees, but it is a member of the Council of Europe and so cases from Turkey can be put to the European

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Court of Human Rights, with, in this case, the Turkish state being the defendant. The UNHCR conducts all refugee status determinations for other nationalities and must resettle all that they have recognized under their mandate to a third country. The court also signalled through its decision in this case that governments which rely blindly on the UNHCR to assess refugee status may be violating their own obligations under human rights law (www.rsdwatch.org). Lawyers should take note of this case because once domestic remedies have been exhausted, there are regional bodies to which they may resort, for example, the African Commission. Obviously, the UNHCR could do much more in terms of ‘blaming and shaming’ specific states. It also usually fails to take actions such as using the media to raise awareness or putting on regular training sessions for the police, but when it does undertake such activities they have an immediate and positive effect. For example, in Egypt police regularly tore up refugee identification cards until the UNHCR’s Cairo office mounted training programmes. Many years ago in Sudan, just one UNHCR film about refugees was shown on television, but the Sudanese Commissioner for Refugees reported having many people come to him to exclaim that they had no idea of refugee problems in their country before they saw this film. In Uganda, the Refugee Law Project43 mounted training courses at the Makerere University Faculty of Law on refugee/human rights law for the police force. These courses had a remarkable effect. Policemen later reported on the ways they had put the lessons they had learned into practice. One policeman had been in Lira on holiday and was not in uniform. Policemen were rounding up ‘rebels’, and among them were many refugees. He allowed himself to be rounded up as well. When the Lira police discovered him to be one of them, they asked him why he had not identified himself earlier. He said he had noticed they were arresting innocent refugees and proceeded to lecture them on the rights of refugees. Another case involved a chief of a police station. His men brought in refugees accused of selling their rations. He asked his men under what law they were going to charge them and threw them a copy of Uganda’s criminal code. Since they could find nothing there, they were released. There are many more examples like these. Perhaps the difference in what was done in Uganda compared to the UNHCR’s approach is that the policemen ‘on the beat’ were being trained. Many officers joined the courses, but the emphasis was on the police who actually encountered refugees in their daily work. Too often, the UNHCR depends on training the senior police officers, the ‘training of trainers’ approach, hoping that the results will ‘trickle down’.44 In Uganda, during our research (Verdirame and Harrell-Bond 2005), it was possible to regularly use the newspapers to expose human rights abuses of refugees. At the close of the research in 1999, my assistant went back to count the refugees who were in prison on remand. This information was disseminated in the press. Then I wrote an article, ‘What’s Wrong With Our

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Criminal Justice System’,45 which pointed out that in addition to the refugees on remand far beyond the legal limits, there were hundreds of Ugandans in the same situation. This jarred the prosecution office and the prisons department into action. Meetings were held, and a few months later hundreds of remand prisoners were released, including the refugees. One of the lessons I draw from this example is that if you begin to get it right for refugees, you can begin to get it ‘right’ for everyone. The Refugee Law Project (RLP) continues to train; in addition to the police, it includes district government officials, NGOs, church leaders and so on. It also provides legal aid for refugees who have suffered violations of their rights. In one notorious case, a local Ugandan government official, who was responsible for refugees in Arua, framed a Rwandan who was then charged with assault. Irrefutable evidence was garnered to get him acquitted. The RLP lawyer defending him encountered a corrupt magistrate who offered to accept a bribe for ‘making the case go the right way’. The Rwandan was found guilty, but instead of receiving the ten-year sentence required by the law for assault, received a lesser prison sentence and a fine. The RLP was able to report this magistrate to the governmental body responsible for investigating the judiciary, and is another example of how persevering in cases involving refugees can result in improvements to the entire system. Assuming human rights are indivisible, interrelated and inter-related, focusing on the violations of the rights of refugees (who represent the most marginalised and unprotected population in any society) is perhaps the most effective ‘entry’ point for improving the observance of human rights for all members of any society. (Harrell-Bond 1999: 1) Did the protest in Cairo achieve anything positive for the Sudanese refugees? Sadly, the answer has to be no. Behind the scenes, perhaps the staff of the Cairo office were chided by officials from Geneva, but there have been no noticeable changes in the behaviour of staff or the security towards refugees who approach the office. An investigation was carried out but the results of this have been kept internal. The Deputy Representative was moved, but promoted. Relations between the UNHCR and the Egyptian government were severely affected. In the week following the break-up of the demonstration, there was no cooperation between them. Instead of supplying the UNHCR with the names of those in prison,46 a ‘verification’ desk was set up at the Mugamma (the building housing most of the Ministry of Interior offices), where refugees could go to look for their missing loved ones.47 Finally, the UNHCR was allowed into the prisons and those remaining without documentation were interviewed to ascertain if any ‘deserved’ UNHCR ‘protection’ – no more than fifteen among those who were not Darfurians were deemed refugees.48 Relations between members of the Egyptian public were also negatively

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impacted, with some employers becoming nervous about their refugee staff (whether or not they participated in the demonstration and whatever their nationality) and sacking them. Fox and Brown (1998), in their study of activities aimed at forcing the World Bank to be accountable for the rights violations that their policies caused, provide examples of where demonstrations, hunger strikes and sitins have been effective in realizing the rights of people threatened with displacement from their land. But their analysis shows that the victories have been achieved only when there was a strong network of ‘Northern’ activist NGOs that took up the demonstrators’ cause with the state members of the World Bank at the highest level. An institution such as the UNHCR seems utterly impervious to such techniques because at the moment there appears to be no effective NGO network to take up the refugee cause with donor governments. Human Rights Watch and Amnesty International occasionally write reports on refugee situations. However, they rarely do more than collect information from local NGOs in capital cities, while most of the violations of the rights of refugees occur in camps. NGOs in camps are on the spot to monitor abuses by the UNHCR, but they are normally involved in providing material assistance or ‘accompanying them’ (as the Jesuit Refugee Service describes its work), and nearly all are ‘implementing partners’ of the UNHCR. Being an implementing partner means that at least a significant amount if not all operating costs are borne by the UNHCR, with whom the NGO has entered a contractual agreement. These agreements do not allow agencies to deviate from UNHCR policy and certainly not to lobby externally for refugee rights.49 On the other hand, UNHCR has not been impervious to the new website that has been created. It was first called ‘www.unhcrwatch.org’. The purpose is to keep the organization under scrutiny about its refugee status determination (RSD) procedures, which do not follow the procedures that it recommends to states. Mike Kagan, the first owner,50 was immediately issued with an order to ‘cease and desist’ and the UNHCR demanded that he hand over the website ownership to it.51 His lawyer’s letter and Amnesty International’s ‘not so quiet’ diplomatic negotiations persuaded the UNHCR to be more reasonable and a compromise was reached to call the website ‘www.rsdwatch.org’. Since that time, together with lobbying by refugee legal aid organizations at the Pre-Excom meetings in Geneva since 2003, where an independent evaluation was called for of UNHCR’s RSD procedures in the eighty countries where they take this responsibility, there have been some real improvements in the procedures in several offices. Moreover, for the first time in history, the UNHCR has released its guidelines for mandate status determination. RSDWatch and refugee legal aid NGOs have continued lobbying in Geneva and are maintaining the pressure on the UNHCR on such subjects as the right to representation and the demand that refugees receive written reasons

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for rejection. At the last meeting in Geneva, the UNHCR promised the latter would ‘soon’ happen everywhere. The struggle for refugee rights and the rights of all displaced people must continue.

Notes 1. See BBC online, 29 November 2006 ‘Fires started at asylum centre’. 2. Another term to attempt to avoid such evolutionary terms as ‘developing’, ‘underdeveloped’ or ‘Third World’. 3. See Grabska, this volume. 4. During the writing of this chapter, however, IRIN reported another peaceful Bhutanese refugee demonstration in Nepal (28 August 2006). 5. The office of the UN High Commissioner for Refugees (UNHCR) first put its policies on paper in 1982, publishing the two-volume Handbook for Emergencies. Volume II was an internal document, restricted to UNHCR staff members only; it includes instructions on how staff should put down refugee protests in and around its offices. 6. There were also protests when World Food Programme supplies did not get through on time because they came by road from Mombasa during the rainy season. Refugees believed the Sudanese government was stealing the food. 7. The door to the office was situated off a small landing outside the elevator, barely large enough for four people to stand. If you knocked on the door, it would be opened the crack allowed by an inside chain. You were unlikely to be permitted entrance if you looked like a refugee. 8. I have read hundreds of these letters that were sent to the UNHCR care of Oxford University Press (OUP). OUP delivered a huge box of them to the Refugee Studies Centre. Refugees, in their desperation to make contact with the UNHCR, had used this address after OUP had begun publishing UNHCR’s Journal of International Refugee Law. 9. The offending officer was in charge of a loan scheme. He asked refugees to sign repayment agreements for much larger amounts than the refugee received, allegedly pocketing the excess. Most refugees just refused to pay back the loan, but my informant was concerned that he remained legally obligated for the entire amount since he had signed for it. 10. They were given the option of repatriating to Somalia or being removed to either Kakuma or Dadaab camps. 11. These offences were allegedly carried out by refugee youth in both 1994 and 1996. 12. It must be stressed that collective punishment is considered so abhorrent under international law that it is prohibited to an occupying power in times of war. But as the UNHCR has immunity from prosecution, no charges against it for these violations could be brought. 13. The camp was entirely dependent on the food distribution for survival in this arid region of Kenya. 14. Employed refugees are not paid salaries, but ‘incentives’, on the grounds that if qualified, they should be working for the good of the community and that they are already receiving food and other material assistance along with the others. See Verdirame and Harrell-Bond (2005: 218–21) for further discussion of this policy. 15. Letter on UNHCR stationery is on file with the authors.

Protests Against the UNHCR to Achieve Rights 239 16. In Uganda, some of the implementing partners tried to deviate from the UNHCR’s rule on ‘incentives’. Only one agency, ACORD, had sufficient independent funding to stand up on this issue and pay its refugee employees according to national law (Verdirame and Harrell-Bond 2005: 219–21). 17. This policy clearly breached Uganda’s Labour Law. 18. On paper, these refugee schools were called parent schools, although the funds for teachers were supplied by the UNHCR through the Jesuit Refugee Service. 19. The full report can be seen at www.aucegypt.edu/fmrs 20. The UNHCR argued that it was only a matter of time before the Sudanese could voluntarily repatriate. RSD interviews are expensive in terms of human resources and, due to the change of circumstances in their home country, few Sudanese would be recognized as refugees. 21. They met with me the very next morning and on several occasions subsequently. At each meeting I attempted to persuade them to disperse the protest on the grounds that it would inevitably end in bloodshed. 22. Announcements of these communications were made at the UNHCR-Coordinated Inter-Agency meetings by Damtew Dessalegne, who reassured the participants that they had requested the Egyptian government to ‘peacefully’ disperse the demonstration. One would have to be very optimistic about the ability of Egyptian police to peacefully disperse any demonstration; it is a task for which they are not trained. That they only used batons and not guns is to their credit. 23. I was teaching an introductory course in refugee studies at Forced Migration and Refugee Studies (FMRS) at The American University in Cairo (AUC). 24. This information was gathered from my own interviews with refugees throughout the demonstration. One headmaster reported that he had been asked to close his school and bring all the children. He literally had to run to escape being caught at the park. His refusal brought many threats to his own security during and after the demonstration. 25. See Azzam (2005). 26. This was the reason why so many children died; they were literally trampled to death in the rush of the police. 27. See Voices in Shadow, a remarkable 27-minute documentary film on the demonstration that Ahmed El Kady produced as a student project at the film school where he was studying. 28. See Hathaway (2005: 739–63). It is important to note that three years is just one of the many exceptions under Article 17(3). Others allow refugees in special circumstances to work immediately. 29. Today’s Convention on the Rights of the Child goes further as regards the right to education for refugees. 30. The status of this Convention in national law is rather interesting. As noted earlier, when Egypt ratified the Refugee Convention in September 1981, it informed the UNHCR that it accepted its provisions with the exception of the Articles to which it made a reservation (UN Treaty Collection). When the Refugee Convention was published in the Official Gazette in November 1981, the reservations that Egypt made to the Convention were not explicitly written into the text of the published instrument. Could this mean that the Convention became part of domestic law without any reservations two months after Egypt informed the UNHCR of its reservations? It is important to note that reservations made to international treaties are explicitly written into the text of the instruments as published in domestic law following a sentence that usually reads along the lines of ‘after taking into

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31.

32.

33. 34.

35. 36. 37.

account the reservations made to the treaty’. When the Refugee Convention was published in the Official Gazette, the sentence was kept, yet there was no mention of the reservations either in the introduction or in the text of the Convention as published. Consequently, one could argue that Egypt is internationally not responsible for providing primary education to refugees, as far as the 1951 Convention is concerned, but it is obliged, in accordance with its own national law on refugees, to make it available to them. A second view advocates for considering the standard sentence enough on its own to include the reservations in domestic law. The judge would then be under the obligation to look into the international Convention before it was published. Although the second view is legally sound, there are indicators that favour the former as many human rights treaties contain both the sentence and the actual reservations in the text of the published treaty. Moreover, requiring the publication of a treaty in order for it to become part of domestic law serves the purpose of informing the public as well as the judges. Referring to unpublished documents defeats the purpose of making publication mandatory. The majority of scholars and practitioners have focused on Egypt’s reservations to the Convention without paying attention to its status in domestic law, which is what matters most to local courts. This attention deficit may be due to the fact that the Egyptian government does not perform refugee status determination functions (Badawy 2006). The role of the office of the UN High Commissioner for Refugees in providing protection has been defined by its 1950 Statute as limited to ‘provid[ing] protection of refugees falling under the competence of this Office by: (a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto; (b) Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection; (c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities; (d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States; (e) Endeavouring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement; (f) Obtaining from Governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them . . . ’ The 1967 Protocol removed the geographical restrictions and made the 1951 Convention universal. Three states have only ratified the Convention and Turkey, for example, has not ratified the 1967 Protocol, recognizing only European refugees who arrive on its territory. Protection reports are confidential to UNHCR Geneva, but were published on a CD which UNHCR staff made available to the research. The ‘walking boys’ walked to Ethopia, back to Sudan and then to Kenya. There were hundreds of them, and many died along the way. They have largely been resettled in the US and have kept this label there. As quoted in Harrell-Bond and Voutira (2007). See also Verdirame and Harrell-Bond (2005: Chapter 5, ‘Malnutrition and the Conspiracy of Silence’, pp. 234–58). Kaiser’s paper questions the desire of institutional humanitarian actors to hear the views of refugees affected by programming.

Protests Against the UNHCR to Achieve Rights 241 38. An executive summary of the initial findings and recommendations made public by the UNHCR is available online at www.unhcr.ch/cgi-bin/texts/ vt/home/opendoc.pdf?id=3c7cf89a4&tbl=PARTNERS. The report is available at www.reliefweb.int/idp/docs/references/protsexexPoaRep.pdf 39. 1 U.N.T.S. 15, 13 February 1946. 40. Ibid., Article 2(2). 41. Ibid., Article 29. 42. It was taken by the Iranian Refugee Alliance. See their 1995 publication. 43. See www.refugeelawproject.org 44. In my experience, they do not trickle down. About all that is accomplished through the so-called ‘ToT’ approach is that those who receive training have another certificate on which to base their claims for promotion. 45. New Vision, 29 September 1999: 23. 46. I was receiving lists of refugees and their locations in various prisons in greater Cairo through an intermediary between myself and the SPLA and the Sudanese Embassy. These I forwarded to the UNHCR. 47. Unfortunately, these lists did not include women and children, a classic ‘unintentional’ omission of a society dominated by patriarchy. 48. Darfurians received yellow cards. Personal communication with a former UNHCR employee who prefers to remain anonymous. 49. The International Rescue Committee has added the protection of refugees to its mandate and employs workers in the field. I gave a talk to a group of these IRC staff members in September 2006 in Oxford. They complained that as they had been seconded to the UNHCR, which paid their salaries, they were incapable of taking issue with it over the abuses of refugee rights that they were witnessing in their daily work. 50. It is now part of Asylum Access (see www.asylumaccess.org). 51. The letter was also copied to the two NGOs that gave their support to www.unhcrwatch.org, AMERA in Egypt and the Frontiers Centre in Lebanon. The letter from the UNHCR regarding the Frontiers Centre was sent to the Lebanese government and not to the NGO.

References Associated Press 2005, ‘Police Kill 10 Sudanese Protestors in Cairo’, New York Times, 30 December. Associated Press 2006, ‘Egypt to Deport 654 Sudanese Refugees’, New York Times, 3 January. Azzam, F. 2005, ‘A Tragedy of Failure and False Expectations: Report on the Events Surrounding the Three-month Sit-in and Forced Removal of Sudanese Refugees in Cairo’, FMRS, The American University in Cairo. Badawy, T. 2006, ‘Refugee Children in Egypt and the Right to Education: Examining the Gap between Theory and Practice’, Mediterranean Journal of Human Rights (in press). Barnett, M. and M. Finnemore 2004, Rules for the World: International Agencies in Global Politics, Ithaca: Cornell University Press. Dadrian, E. 2006, ‘An Eyewitness Account of the Massacre of Sudanese Refugees in Cairo: the Night the Screams Never Stopped’, Pambazuka News, 1 May. Debteraw Associate Reporter, 2006, ‘211 Ethiopians on Hunger Strike at UNHCR Gate in Khartoum’, http://www.debteraw.co.uk/Ethiopians-on-hunger-strike.pdf, accessed 29 Novemebr 2006.

242 Forced Displacement Dennis, P. n.d., ‘Accountability of International Organizations: an Examination of Accountability with a Focus on Refugee Organisations’, unpublished student paper, Forced Migration and Refugee Studies (FMRS), The American University in Cairo. Fitzpatrick, J. and R. Bonoan 2003, ‘Cessation of Refugee Protection’, in E. Feller, V. T¨ urk and F. Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge: Cambridge University Press, pp. 491–544. FMRS (edited by F. Azzam) 2006, ‘A Tragedy of Failures and False Expectations: Report on the Events Surrounding the Three-month Sit-in and Forced Removal of Sudanese Refugees in Cairo, September–December 2005’, Forced Migration and Refugee Studies (FMRS), The American University in Cairo. Fox, J. and L. Brown 1998, The Struggle for Accountability: the World Bank, NGOs, and Grassroots Movements, London: MIT Press. Gomez, A., T. Lewis, M. Rowe, A. K. Salih, L. Sander, S. Schafer and H. Smith 2005a, ‘Sudanese Refugees in Cairo: We’ll Wait Here, We’ll Die Here’, Pambazuka News, 20 October, http://www.pambazuka.org/en/category/features/29957 Gomez, A., T. Lewis, M. Rowe, A. K. Salih, L. Sander, S. Schafer and H. Smith 2005b, ‘UNHCR Responds to the Cairo Refugee Sit-in: an Official Response’, Pambazuka News, 27 October, http://www.pambazuka.org/en/category/comment/30070 Hadi, L. A. 2004, ‘The ‘‘Eritrean Cessation Clause’’ as an Example of the Politicization of Human Rights’, MA thesis, Department of Political Science, The American University in Cairo. Harrell-Bond 1986, Imposing Aid: Emergency Assistance to Refugees, Oxford: Oxford University Press. Harrell-Bond, B. E. 1999, ‘Memorandum’ to Tim Williams, DFID, unpublished manuscript. Harrell-Bond, B. E. 2002, ‘Can Humanitarian Work Be Humane?’ Human Rights Quarterly 21: 51–85. Harrell-Bond, B. E. 2006, ‘Compounding the Tragedy of 30 December in Cairo’, http://www.pambazuka.org/en/category/comment/32772, 16 March. Harrell-Bond, B. E. and Voutira, E. (2007), ‘In Search of ‘‘Invisible’’ Actors: Barriers to Access in Refugee Research’, Journal of Refugee Studies 20(2): 281–98. Hathaway, J. 2005, The Rights of Refugees under International Law, Cambridge: Cambridge University Press. Iranian Refugee Alliance 1995, ‘Evading Scrutiny: Do Refugee Status Determination Procedures Measure Up to International Standards?’ http://rsdwatch.org/DandOthers VTurkey.pdf Kagan, M. 2006a, ‘UN Reform for the Rest of Us: an Agenda for Grassroots Accountability’, Foreign Policy in Focus, 14 April, http://www.fpif.org/fpipftxt/3208, accessed 15 April 2006 Kagan, M. 2006b, ‘Comment and Submission’ to the UN Redesign Panel on Internal Justice, Asylum Access, June. Kaiser, Tania 2004, ‘Participation or Consultation? Relections on a ‘‘Beneficiary Based’’ Evaluation of UNHCR’s Programme for Sierra Leonean and Liberian Refugees in Guinea, June–July 2000’, Journal of Refugee Studies 17(2): 185–204. KRC Research & Consulting Inc. 1991, ‘A Communications Strategy for the Office of the United Nations High Commissioner for Refugees: Executive Summary’, prepared by Mark Malloch-Brown for the UNHCR, 8 September. Schaeffer, S. 2005, ‘Sudanese Demonstrators in Mohandiseen: Who They Are and Why They Are Here’, unpublished term paper for graduate diploma course, Introduction to Forced Migration, FMRS/The American University in Cairo.

Protests Against the UNHCR to Achieve Rights 243 Slackman, M. 2005, ‘Fleeing Sudan, Only to Languish in an Egyptian Limbo’, New York Times, 26 December. Sylvan, L. 2005, ‘The Phenomenon of Refugee Protest in the Global South: 2005 Developments’, World Refugee Survey, US Committee for Refugees and Immigrants, Washington, DC: 28–31, http://www.refugees.org/data/wrs/06/docs/refugee protest in the global south.pdf UNHCR 2006, ‘Keeping the Spirit of Cartagena Alive, 20 Years Later’, Colombia, 11 November, http://www.unhcr.org/admin/ADMIN/4524bc952.pdf (accessed 22 November 2006). Verdirame, G. 2001, ‘UN Accountability for Violations of Human Rights’, PhD dissertation submitted to the London School of Economics. Verdirame, G. and B. E. Harrell-Bond 2005, Rights in Exile: Janus Faced Humanitarianism, Oxford: Berghahn Books. Walkup, M. 1997, ‘Policy and Behavior in Humanitarian Organizations: the Institutional Origins of Operational Dysfunction’, PhD dissertation, University of Florida (USA). Whitaker, B. 2006, ‘The Race Taboo’, The Guardian, 8 September. Wigley, B. 2005, ‘UNHCR’s Organization Culture’, Evaluation and Policy Unit Analysis, UNHCR, EPAU 08, May. Wigley, B 2006, ‘UNHCR’s Organization Culture: What Now?’ Evaluation and Policy Unit Analysis, UNHCR, EPAU/2006, January.

12 Afterword: the Politics of Rights Katarzyna Grabska and Lyla Mehta

This volume has argued that introducing a rights regime to oustee, refugee and IDP issues has the potential to overturn the injustices encountered by refugees and oustees, protect them from the violations of basic rights that they encounter almost daily and also award them with the agency to shape their own life-choices around settlements, livelihoods and social networks in their new homes. But several on-the-ground contradictions persist concerning the origins of rights, their implementation, contestation, and questions concerning obligations and responsibilities. These issues are of more than just academic interest: the perpetuation of flawed policies, programmes and interventions vis-`a-vis refugees and internally displaced people not only slides them into impoverishment processes but also denies them their rights as national and global citizens. Although theoretically sound and attractive due to the focus on equality and respect for all, rights-based approaches in forced migration face several challenges. First, they are perceived to come at a cost to states and governments. Provision of rights and equal access to rights, including socio-economic rights, requires public spending. Thus, their extension to non-citizens or citizens who do not count meets with opposition. In order for rights-based approaches to be fully operational, they have to be accepted not only by governments, but they also have to constitute an integral part of donors’ agendas for development aid. By providing integrated development assistance to both nationals and refugees, and integrating assistance to those subjected to forced displacement, the rights of all marginalized groups can be addressed in a comprehensive manner. As several authors in this volume have argued, rights-based and social protection approaches that take on board human rights concerns can both increase the agency of displaced people as well as allow for an inclusion of a rights-based approach within wider national strategies and policies that also confront structural inequalities. Second, there is a disjunction between theoretical and practical concerns around people’s basic needs and rights. As many of the studies in this volume 244

Afterword: the Politics of Rights 245

testify, displaced people’s needs are easier to address through assistance programmes. Hence, donors and aid agencies often choose to embark on meeting short-term and practical needs rather than creating long-term environments where the rights of all displaced people could be realized (for example, as the case of IDPs in the Sudan highlighted, international organizations are only preoccupied with the return of IDPs regardless of their preferences). Third, a top-down vision of rights, as well as the disconnection between those in power to impose policies and those whom these policies affect, creates other contradictions. Rarely are displaced persons themselves seen as actors in the process of policy creation and implementation, as their acceptance or rejection of certain programmes might determine the fate of these policies. The way oustees, IDPs or refugees engage and interact with the policy environment varies, depending on the home or host country conditions (for example, freedom of expression and the possibility of demonstration). As Mehta and Gupte (2003) point out, it is important to acknowledge the need to recognize the universality of recipient rights while simultaneously taking a deeper look at the individual’s situation, treating individuals as responsible actors, and creating a legitimate space for involving refugees and displacees in decision-making processes. Perceptions held by displaced populations of policies and programmes combined with their understandings of rights and own priorities have a direct influence on the outcome of policies, and ultimately on the livelihoods of the displaced. Several chapters have demonstrated how refugees prioritize different rights at different times. Often they are willing to forgo the immediate benefits of access to socio-economic rights in the pursuit of other rights (such as the right to return to Palestine). Many of our authors have also argued how displaced people strive to access multilayered protection which includes both civil and political rights as well as social, economic and cultural rights and livelihood security. The separation of so-called first- and second-generation rights by academics and policy-makers, thus does not echo displaced people’s own perceptions of rights and protection. Lastly, the main problem of rights-based approaches lies in the locus of responsibility to guarantee, provide and implement rights and access to rights. There is a tendency for institutions to pass the buck amongst themselves. Or indeed, displaced people are unclear of who is actually responsible for their rights. This was well highlighted by the chapters on Egypt and Lebanon which discussed how neither the UNHCR nor the host governments assume full responsibility for refugees’ well-being. As the chapters on dams-based displacement highlight, what emerges is the need for accountability mechanisms through which displaced people can seek redress. More and more displaced people are demanding accountability which highlights the need for it to be an indispensable part of the human rights regime in forced migration, without which rights will continue to be violated with impunity.

246 Forced Displacement

In sum, the book has shed light on how the perspectives and rights of displaced people can and must be taken seriously. It also provides lessons regarding the challenges of implementing rights-based approaches in forced migration policy and practice. It demonstrates how rights are slowly realized and how institutions may become more responsive as a result of the growing struggles of displaced people. The underlying message emanating throughout the book is the undeniable importance of rights in displaced people’s lives, and the necessity to guarantee access and protect these rights on the part of states and a range of international and national institutions. This is the only way that the current injustices against the world’s growing displaced populations can begin to be addressed. Reference Mehta, L. and J. Gupte 2003, ‘Whose Needs are Right? Refugees, Oustees and the Challenges of Rights-based Approaches in Forced Migration’, Development Research Centre on Migration, Globalization and Poverty, University of Sussex, Working Paper T4.

Index

NB: Page numbers in bold refer to figures and tables ABB Power Generation 59 Abbas, Mahmoud 101 Abdel Ati, H. 148 Aboriginal Malays 187 Aboriginal Peoples Act (1967) 190 Aboriginal Peoples Ordinance (1954) 190, 191, 197n Abu Salim, M. I. 139 accountability 212–14, 218 Accountability Project (Bretton Woods) 212 Ad Hoc Committee for the Support of Refugees and Asylum-Seekers (ACSRA) 163 Ad Ibrahim 130 adivasi 1, 211, 215, 216 defined 218n villages 209 Adlan, I. 133, 134 Adong bi Kurai & Ors v Kerajaan Negeri Johore 192 Africa 4, 37 Africa Middle East Refugee Assistance (AMERA) xi, 81 African Commission 235 African Development Bank (AfDB) 34 Afwerki, President Isaias 133 ‘agitation route’ 63 Ahmed El Kady 229 Aid’un Group (‘Those who will return’) 94, 111, 112n Al-Hariri, Prime Minister Rafiq 101, 107 al Naser, Jamal Abd 100 Al Salam camp (Jabarona) 141, 148–52 community-based organizations (CBOs) 151–2 education 149–50 livelihoods 150–1 overview 148–9

Al Sharmani, M. 10, 75, 83, 84, 88 Al Wifaq CBO 149, 151–2 Amal militia (Lebanon) 100 American University see The American University in Cairo Amnesty International 108, 109, 237 Anak Negeri 187 Andolan 214 Angola 37 Apffel-Marglin, F. 180 Appleyard, S. 3 Arab–Israeli conflict 96, 98, 101 Arab League 76, 105 Arch Vahini 210 Arendt, H. 73 Armenians 74 Aruri, N. H. 94 Asia 4 Asian Development Bank (ADB) 8, 34–5 Asif, M. 12, 13, 204 Assal, M. A. M. 7, 18, 140, 143–4, 146–50 asylum right of 76 seekers 74–5 Asylum Access 233 Attiya, H. 119–20 Australia 75 Axelrod, R. 28 Azzam, F. 226 Babagon Dam 192 Bagshaw, S. 26, 39–41 Bakewell, O. 3, 13–14, 81 Balfour Beatty 59, 60–1 Balkan conflicts 38 Banaga, S. 143, 148 Barnes, R. H. 179 Barnett, M. 223

247

248 Index Barrientos, A. 55, 65 Barutciski, M. 38, 39 ‘basic human right’ 14 Bayefsky, A. F. 5, 82, 85 Bayoumi, A. 130 Beni Amer 127 Muslims 130 Berger, T. 205 Bet Juk 127, 130 Betts, A. 29 Bhakra Nangal Dam 204 Bhardwaj, S. 208, 209–10, 211 Biafra region (Nigeria) 37 Blackford, D. 181 Blin, Christian 127, 130 Bocco, R. 95 Bonoan, R. 234 Bosnia 37 bottom-up approaches 4, 74, 82, 87, 88, 95 Bretton Woods Project 212 British colonialists 191 British government 96 Brocklesby, M. A. 13 Brody, H. 181, 185 Brown, L. 237 Brun, C. 142 Buddhist monks 2 bumiputera 187 ‘burden sharing’ 39 Burger, J. 180 Bush, R. 55 business licences 125 Cairo 222, 227, 236 Cairo Agreement 100 Cairo demonstration 1, 71, 73, 74, 84–5, 225–9 government response to 71, 229 organization of 227–9 camps IDP populations, Sudan 147–8, 148 refugee, Lebanon 99 see also Al Salam camp Canada 75 CARE (Christian Action Research and Education) 147 Caritas 79–80, 81 Casablanca Protocol (1965) 105 Castles, S. 66

categories see labels and categories Catholic Relief Services (CRS) 81 Central Committee for Refugee Affairs (CCRA) (Lebanon) 102 Cernea, M. M. 2, 3–4, 9, 17, 32–5 development-induced displacement and 51–2, 52–3, 61–2, 66, 201–3 risk model 55 charity 143 Chatila massacre 100 Chehab, General Fuad 100, 102 Chimni, B. S. 66, 169 Chinese, in Malaysia 187 Chittagong Hill Tracts (CHT) 179 Christians Blin 127, 130 Eritrean 134 Maronite sect 96–7 militia (Lebanon) 100 Sudan 149 churches 81, 88 citizenship 14, 15–17, 61, 77, 142, 180 de jure 16 human rights and 72–3, 85, 234 Sudanese jinsia 122, 125, 126 civil rights 14–15 civil society, human rights and 63–4 Clancy, D. 12, 85 Clark, D. 36, 208, 209–10, 211, 212, 216 Clarke, J. 65 Cliffe, L. 134 ‘closed files’ 84 Cobo, Jos´e R. Martinez 183–4 Cohen, E. 41 Cohen, R. 10, 26, 38, 57, 96 Colchester, M. 178–9, 181, 184 Collinson, S. 11, 12, 88 Collyer, M. 171 colonialism 181 colonization 195 Colson, E. 50, 201 Committee on the Elimination of Racial Discrimination (CERD) 163 community-based organizations (CBOs) 94 Al Salam camp 151–2 Al Wifaq 149, 151–2 in Egypt 81, 82, 88 in Sudan 146, 151, 166

Index 249 compensation and impoverishment risks and reconstruction (CIRR) 53, 61 compensation processes 182 Comprehensive Peace Agreement (CPA) (Sudan) 141, 143, 145, 154 confinement strategy 11 ‘conflict IDPs’ 37 conflict-induced displacement and resettlement (CIDR) 27, 30, 36–42 Convention Against Torture 164 Convention on Biodiversity (CBD) 188 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 186 Convention on the Elimination of All Forms of Racial Discrimination (CERD) 107–8, 109, 165 Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO) 225 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU) 9, 72, 75, 121, 123, 230 Convention on the Non-Navigational Uses of Transboundary Watercourses (UN) 64 Convention on the Privileges and Immunities of the United Nations 233 Convention on the Rights of the Child 78, 165 Convention on the Status of Refugees 5, 8, 9, 21n, 58 1967 protocol 57, 75, 230 Egypt and 72, 75–6, 87 Lebanon and 162, 163, 164, 169, 175 regimes and 31, 36–7 Sudan and 121, 123, 124 UNHCR and 229–30, 234, 239–40n Conway, T. 65–7 Copenhagen 34 Corner House, The 178, 214 corruption 127 Council of Europe 234 Covenant of Civil and Political Rights 15 Cowan, J. 14 CPI (Child Care Initiative) 150

Crawford, S. 13 Crisp, J. 11, 50, 66 Cullet, P. 207 Dadrian, E. 229 dam projects 63, 178 Orang Asli and 192–4 see also Narmada Project Darcy, J. 12 Darfur 2, 139, 142, 156n Dayak 187 de Gaay Forman, B. 12 de jure citzenship 16 De Vriese, M. 14, 89 decision-making 31, 41–2, 160 IDPs and 30 refugees and 82, 87 Declaration of Millennium Development Goals 56 Declaration on Refugees (Cartagena) 230 Declaration on the Right to Development (UN) 21n, 56, 58, 186, 188, 195, 207 Declaration on the Rights of Indigenous Peoples (UN) 184–5 Deng, F. M. 10, 26, 41, 57 Dennis, P. 232–3 Dentan, R. K. 188 Department of Aboriginal Affairs (Malaysia) 189 Department of Affairs of Palestinian Refugees (DAPR) (Lebanon) 98–9, 102–3, 103–5, 107 Decrees 102, 103 Department of Political Affairs and Refugees (Lebanon) 103 Department of Refugee Affairs (MOFA, Egypt) 80 Dessalegne, Damtew 82 development projects 32–3 Development Research Centre on Migration, Globalization and Poverty (DRC) 203 development-induced displacement (DID) 2, 9 see also indigenous peoples; Narmada Project

250 Index development-induced displacement and resettlement (DIDR) 27, 30, 32–6, 42, 50–68 human rights and 52–6, 56–7, 57–64, 64–7 social protection and 52, 56–7, 64–7 ‘differential incorporation’ 55 Dingemans, E. 78 Dinka 153 Directorate General of General Security (Lebanon) 163 Directorate of Public Security (Lebanon) 104 ‘dispersed state’ 65 displacement coercive/forced viii, 1, 2, 15 conflict-induced 27, 30, 36–42 development-induced 1, 2, 9, 27, 30, 32–6, 42, 51–2, 52–3, 61–2, 66, 68, 201–3 displaced persons 10 forced migration viii, ix, 3–9, 12, 15, 17, 19, 20, 28–9, 33, 42, 67, 73, 74, 116, 118, 120, 140, 144, 145, 147, 244, 245, 246 internal 2–18 passim, 20n, 50, 57, 147–8, 148, 179, 186 politics of 203–5 Dobby, E. H. G. 191 donors 139 Downing, T. 14, 36 Dreze, J. 204 drinking water, access to 209 ‘duty-bearers’ 57 Dwivedi, R. 33, 51–2, 182, 202 Dwyer, P. 59 economic rights 73, 82, 123, 131, 135, 159, 161, 163–4, 165–6, 168, 175–6 access, in Sudan 124–35 in Lebanon 159, 161, 163–4, 165–6, 168, 175–6 Economic and Social Council (ECOSOC, UN) 37 Economist (publication) 34 Economist Intelligence Unit (EIU) 133 Edo, J. 187, 190, 194 education 93, 95, 100, 110, 111, 159–77 in Al Salam camp 149–50

rights in Egypt 77–8, 78–9 rights in Lebanon 93, 95, 100, 109–11, 161–76 Egypt 8, 71–90 citizenship 72–3 government perspective 1, 75–80 human rights 72–3, 82–3 international organizations/service providers 80–2 mobilizing and protest 84–5 obligations/responsibilities 85–7 policies 75 refugees in 74–5 reservations to 1951 Convention 230, 239–40n rights-based approaches 87–9 see also Cairo; Cairo demonstration Ein al Helweh refugee camp 101 11 September 2001 attacks 163 El-Nagar, S. 148 ‘eminent domain’ 203, 214 ENCON (environmental consultancy) 61 Environmental Impact Assessment (EIA) 193 Equator Principles 35, 41 Eritrean Islamic Jihad Movement (EIJM) 133–4 Eritrean Islamist groups 133 Eritrean Liberation Front (ELF) 118, 120, 132–3 Eritrean Muslim refugees 134, 135 Eritrean National Alliance (NDA) 133 Eritrean People’s Liberation Front (EPLF) 118, 120, 132 Eritrean Relief and Refugee Commission (ERREC) 121 Eritreans 74 see also Sudan, Eritreans in Ethiopia 74, 119 ethnicity, common 126–30, 128, 129, 131 European Court of Human Rights 234–5 Evans, G. 31 exile, duration of 131–2, 131 Export Credit Agencies (ECA) 59, 61 Export Credit Guarantee Department (ECGD) (UK) 60

Index 251 Farah, R. 95 Feller, Erika 230 Fernandes, W. 201, 204–5 Finland 75 Finnemore, M. 29, 40, 223 Fitzpatrick, J. M. 5, 82, 85, 234 ‘flight alternatives’ 38 ‘forced migrants’ 10 forced migration viii, ix, 3–9, 12, 15, 17, 19, 20, 28, 33, 42, 67, 73, 74, 116, 118, 120, 140, 144, 145, 147, 244, 245, 246 Forced Migration and Refugee Studies Centre (FMRS) viii, 71, 73–4, 78, 84, 222, 225–7 foreign refugees, competition for work 106 foreigners in Egypt 76, 77, 78, 79, 80, 90 in Lebanon 103, 161, 163, 164, 165, 168, 169 status 93–4 Fortin, A. 66 Fox, J. 237 free prior informed consent (FPIC) 194 freedom of movement, right to 103–5 Frontiers Center 163 Frontiers (Ruwad) Association 160, 162, 166 Gaddafi, Colonel 104 Galal El-Din, M. 139 gender 186 General Comment on the Right to Water (UN) 207 General Directorate for State Hydraulic Works (DSI) (Turkey) 59, 61 Geneva 224, 227, 236, 237–8 Conventions 31, 165 ‘gentleman’s agreement’, Lebanon/UNHCR 162 Ghai, D. 192 Gibney, M. J. 31, 66 Gibson, D. 32 Global Indigenous Peoples’ Caucus 185 Goetz, A. 212–14 Goetz, N. 37 Goldewijk, B. K. 12 Goldsmith, E. 204 Gomes, A. G. 190

Gomez, A. 222 Goodwin-Gill, G. 29 Gorman, R. 86 Government of National Unity (GNU) (Sudan) 139, 142, 152, 154–5 Government of Southern Sudan (GoSS) 18, 142, 152, 154–5 Government of Sudan 141 Grabska, K. 7, 75, 84, 87, 88 Grievance Redressal Authority (GRA) 211–12, 213 Guiding Principles on Internal Displacement (UN 1998) 10, 26, 40–3, 57, 142, 150–1, 154, 207 Guinea-Bissau 37 Gulf states 104 Gunaratna, R. 134 Gupte, J. 9, 18, 50, 65–6, 145, 202, 245 Lebanon and 160, 166–7 Haas, P. M. 28 Habab 127, 130 Habermas, J. 28 Haddad, S. 94 Hadi, L. A. 234 Haggard, S. 32 Hall, A. 34, 65 Hamadeh, Trad (Lebanese Minister) 107 Hamid, G. 148 Hammer, J. 94 Hammerstad, A. 9 Hampton, J. 147 Haraway, D. 8 Hardan, As’ad 105 Harper, T. N. 181 Harrell-Bond, B. 3, 5–6, 11, 13–14, 50, 66, 75 Egypt and 76, 84, 90 Lebanon and 167, 170 UNHCR and 223–5, 231–2, 235–6 Hasenclever, A. 28, 32 Hathaway, J. 5, 11, 15–16, 32, 73, 85 Lebanon and 164, 167 UNHCR and 225, 229 health care oustees and 215 rights in Egypt 77–8, 79–80 rights in Lebanon 109–10, 164–6 Heilbroner, R. 32

252 Index Held, D. 59 Hemadri, R. 2 Heper, M. 62 Herzegovina 37 Hewitt de Alc´antara, C. 65 Hidareb, returnees 130 higher education, refugees and 125 Hildyard, N. 204 Hirakud Dam 204 Hirsch, P. 182 Hofmann, C. A. 12 Holcombe, S. 3 Hood, S. 191 Hooker, M. B. 189 Hopkins, R. F. 42 hospitals 125 hosting countries 39 Howitt, R. 181, 185, 192 Hulme, D. 55, 65 human rights 5–6, 8–11 articulating/claiming 60–3 of asylum 76 basic 14 of citizens 234 to citizenship 85, 94 civil 14–15, 63–4 DIDR and 57–64 economic 164 education 164–6 in Egypt 72–3, 82–3 framework for 52–6 health 164–6 indivisibility of 15–17 in international instruments 182–7 laws 56–7 in Lebanon 103–10, 163–5, 165–6 Narmada Project 206–8, 216–17 politics and 14–15, 17–19, 64–7, 244–6 of return 93, 152–3 ‘right to have rights’ 120, 123 ‘right to remain’ 38 ‘rights-holders’ 57 social protection synergy 56–7 in Sudan 124–35 violations 180–2, 191–2, 208–11, 214–15, 232–4 see also rights; rights-based approach; social rights Human Rights Commission (India) 213

Human Rights Department (Arab League) 76 Human Rights Watch 237 Humanitarian Aid Commission (HAC) 146, 147–8 humanitarianism 29, 31 Hurrell, A. 29 Hyndman, J. 37 Hyndman, M. 11, 13 IASC (UN Inter-Agency Standing Committee) 27 Ilisu Dam 50, 54, 58–60, 60–1, 64 Ilisu Resettlement Action Plan (RAP) 61 immovable property 124 Impoverishment Risks and Reconstruction (IRR) model 201 Impregilo (Italy) 59 Independent Commission on International Humanitarian Issues (ICIHI) 37 India 1, 8, 37 see also Narmada Project Indians, in Malaysia 187 indigenous peoples definition 179 of Malaysia 187–8 rights in international instruments 182–7 rights violations and 180–2, 191–2 UN definition 184 see also Orang Asli Indigenous and Tribal Peoples Convention (ILO) 33, 182, 183, 196n, 207 Inspection Panel (World Bank) 36, 214 institutional mechanisms 212–14 integration/return options 152–3 Inter-Agency Report (Sudan) 148 Inter-American Development Bank (IADB) 34 Internal Displacement Monitoring Centre 2 internally displaced persons (IDPs) 2–18 passim, 20n, 50, 57, 147–8, 148, 179, 186 protection cases 111 regimes and 26–7, 29, 37, 38, 40, 41–2

Index 253 UN definition of 147 see also Sudan, internally displaced persons in International Association for the Study of Forced Migration 171 International Committee of the Red Cross (ICRC) 39 International Covenant on Civil and Political Rights (ICCPR) 20n, 33, 186 International Covenant on Economic, Social and Cultural Rights (ICESCR) 15, 20n, 33, 107, 109, 164–5, 186, 207 International Covenant on the Elimination of All Forms of Racial Discrimination 186 International Finance Corporation (IFC) 35 international financial institutions (IFIs) 212 international instruments, rights in 182–7 International Labour Organization (ILO) 182–3 Conventions 188, 192, 196n, 207, 225 international law 111 International Organization for Migration (IOM) 147 international organizations, in Egypt 80–2 international refugee regimes 26, 29–32 International Rivers Network (IRN) 178, 214, 217 involuntary resettlement 53 Involuntary Resettlement Policy (World Bank) 208 Iran, Shah of 76 Iraq 37, 162, 170 Islamic National Front (INF) 134 Israel 2, 93, 96, 100, 101 Israeli–Palestinian peace process 104 Israeli–PLO Oslo Accord (1993) 101, 104, 111 Itam Wali bin Nawan 191 Jabarona see Al Salam camp Jacobsen, K. 7, 11, 14, 88–9 Jahais 179, 193–4

Jajpur 1 jal samapan (save or drown actions) 206 Jenkins, R. 212–14 Jesuit Refugee Service (JRS) 225, 237 JHEOA (Jabatan Hal Ehwal Orang Asli) 187–8, 189, 190 Jihad Eritrea 133 Jimin Idris 191 Johor State Government 192 Jordan army 98 JPMECCE (Joint Parliamentary Middle East Councils Commission of Enquiry) 93 Juba 18 judicial activism 213 Jumma peoples 179 justice, access to 211–12 Kabeer, N. 16, 55, 72–3, 123 Kagan, M. 6, 74, 86, 161, 163, 169 UNHCR and 223–4, 237 Kahn, P. W. 172 Kaiser, T. 166–7, 172, 232 Karadawi, A. 118, 119, 124 Kenny, K. 13 Kenya 224–5, 231, 232 Kenyir Dam 192 Keohane, R. 28 Kesha (round-up campaigns) 119 Kessler, C. S. 188 Khartoum 18 Khattab, Ambassador Mushira 77 Kibreab, G. 6, 118–24, 130–1, 133–4, 146, 167, 170–1 King, V. T. 187 Kingsbury, B. 183 Kingsley-Nyinah, M. 39 Kiska (Turkey) 59 Koenig, D. 201 Korn, D. 27, 29, 37, 39–40 Krasner, S. D. 28 KRC Research & Consulting Inc 231 Kunama 127 Kuper, A. 58 Kurdish Human Rights Project (KHRP) 178 Kurdish Workers Party (PKK) 68n Kurds 37, 58, 61–2, 64 Kushner, G. 14

254 Index labels and categories 8–9 problems with 9–11 Land Acquisition Act (India) 203 land rights, Orang Asli 189–91, 192–4 Landau, L. B. 7 ‘land-for-land’ compensation 215 language common 126–30 problems 78 Laos 37 Lazarus, S. 36 League of Nations 8 Lebanon 2, 8, 93–115, 159–77 1990 Constitutional Amendment 108 Code of Civil Proceedings 111 constitution 165 Decree 478 (1995) 104–5 Decree 17561 (1962) 105 foreigners under Ordinance 319 (1962) 103 Israeli war in 101 law on health care 168 Legislative Decree 11614 (1969) 108 Ministerial Decisions 105 Ministry of Labour Memorandum 67/1 107 NGOs 101, 160 –Palestinian dialogue 104–5 Lebanon, Palestinians in 93–111 demography/politics 96–9 human rights framework 103–10 institutional framework 102–3 origins/patterns of flight 97 refugee camps 99 relationship, history of 99–102 Lebanon, rights-based approach in 95, 159–76 legal/social context 162–6 mobilization, refugee 171–3 responsibilities 166–71, 173–4 legal context, in Lebanon 162–6 legal status of refugees 175 legislation frameworks 8 Lebanese 103–10 policy, national 213 Liberian refugees 232–3 Libya 76, 104 Linggiu Dam 192

Lister, R. 65 livelihoods Al Salam camp 150–1 in Egypt 72, 74, 75, 78, 81, 83, 87, 88, 89 in Lebanon 160, 168 Orang Asli 192–4 in Sudan 130–1 Loescher, G. 29, 32, 38, 39, 167 Lubbers, Ruud 26, 121 MacKay, F. 183, 185 MacMillan, L. 85 Madrid Peace Conference 101 Makerere University Faculty of Law 235 Makiram din Nutout 164 Malayan Emergency (1948–60) 181 Malaysia citizens 180 Federal Constitution 187 see also under indigenous peoples Malaysian Human Rights Commission’s (Suhakam) census 188 Malezer, Les 185 Malkki, L. 9–10 Malloch-Brown, Mark 231 Marcus, R. 66 Maria (Sudanese) 1 27, 130 Maronite sect, Christian 96–7 Martin, D. 32 McCully, P. 178, 204 McDowell, C. 201 Medhanie, T. 134 Mehta, L. 1, 3, 7, 9, 12, 18, 145, 245 development-induced displacement and 50, 52–3, 58, 65–6 Lebanon and 160, 166–7 Narmada Project and 201–2, 205, 206, 210, 215 Memorandum of Understanding (MOU) (Lebanon/UNHCR) 163, 166, 169 Meng, Y. C. 194 Middle East 4 Midgley, J. 65 Mies, M. 8 Migrants’ Housing Office (Sudan) 149 Milner, J. 39 Ministry of Education Egypt 78 Sudan 149–50

Index 255 Ministry of Foreign Affairs (MOFA) (Egypt) 77, 80 Ministry of Health Egypt 77, 80, 86 Lebanon 162, 168–9 Ministry of Interior Egypt 86, 236 Lebanon 98, 102, 104–5 Ministry of Labour Egypt 77 Lebanon 105, 106, 107 mobilization, refugee 84–5 in Lebanon 171–3 Moore, H. L. 186 Morse, B. 205 Morvaridi, B. 7, 50–2, 60–1, 182 Moser, C. 4, 12, 88 Mozambique 37 Muggah, R. 7, 29 Mujahideen, of EIJM 133 multi-agency approach 59 Muslims 125 Blin 127, 130 Brotherhood 229 Eritrean 134, 135 Saho 127, 130 Sudan 149 nakba (Palestinian dispossession) 94 ‘name and shame’ 232 Nara-speaking Eritrean refugees 127, 130 Narmada Bachao Andolan (Save the Narmada Movement) 206 Narmada Control Authority 205, 208, 211–12 Narmada Project 201–19 displacement politics 203–5 human rights indifference 19, 216–17 institutional mechanisms/ accountability 212–14 justice, access to 211–12 obligations/responsibilities, rights 214–15 oustees, rights of 206–8 overview 205–6 policies/mind sets 215 protest 215–16

protest, role of 206 rights violations 208–11 Narmada Valley 187 Narmada Valley Dam 182 Narmada Water Disputes Tribunal (NWDT) 206, 208–9 National Congress Party (Sudan) 125, 142, 143 National Council on Childhood and Motherhood (NCCM) (Egypt) 77, 80 National Council on Population and Development (NCPD) (Egypt) 80 National Human Rights Commission (India) 211 National Islamic Front (NIF) 125, 133 ‘national purpose’ 14, 214 principle of 15 private property and 203 National Women’s Commission (India) 211 Natour, S. 108 naturalization of refugees 90n, 125, 126 naziheen (displaced) 143, 153 needs-based approaches 4, 11–14, 73, 81, 82, 95, 145, 160, 166, 168, 170, 171, 173, 244–5 Negritos 187, 193 Nenggiri Dam 192 NGOs see non-governmental organizations (NGOs) Nicholas, C. 185, 188, 189, 190, 194 Nigeria 37 Nimeri, Jaafar 76 ‘1967 refugees’ 98 non-discrimination 29, 31 duty of 44n non-governmental organizations (NGOs) 11, 58–9, 63–4 in Egypt 74, 81–2, 85, 88 in Lebanon 160, 166, 169–71, 171, 173–4, 175 Narmada Project and 210, 212, 214, 217 Palestinian 101–2, 106, 109 in Sudan 139–40, 144, 146, 147, 150–3, 155 UNHCR and 226, 232, 234, 236–7 ‘non-ID refugees’ 99, 104, 113n

256 Index non-refoulement 29, 31, 82 principle 83, 163 non-registered refugees (NR) 98 Noone, R. 191 Noorkibhai (village) 217 norms, IDPs and 30 Norton, A. 4, 12, 88 Norwegian Institute for Labour and Social Research (FAFO) 98 Norwegian Refugee Council (NRC) 148 Nowfal, Mohammad 93 Nuba 152–3 Nyamu-Musembi, C. 12, 73, 85

Organization for Economic Co-operation and Development (OECD) 58 Oslo Accord (1993) 101, 104, 111 Osman, E. 148 oustees viii, 2–5, 8–9, 11, 13–15, 17–19, 20n, 144, 154, 218, 222, 244, 245 development-induced 140 human rights of 206–8 Narmada Project and 43, 201–4, 206, 208, 210–12, 214–15 status 216 Oxfam 3, 13

OAU see Organization of African Unity (OAU) Offenheiser, R. 3 Office for the Coordination of Humanitarian Affairs (OCHA, UN) 8, 26, 40–2 Ogata, High Commissioner Sadaka 38 Ogujebe Transit Centre 224, 232 OHCHR (Office of High Commissioner for Human Rights) 3 Oil-for-Food Programme 170 Oliver-Smith, A. 50, 178 Olsson, L. 85 O’Neill, O. 59 Operation Lifeline Sudan (OLS) 37 ‘Operational Directive 4.30: Guidelines on Involuntary Resettlement’ (World Bank) 34–5, 39 ‘Operational Manual Statement’ (OMS) (World Bank) 34 ‘Operational Policy 4.12’ (revised guidelines) (World Bank) 36 ‘Operations Policy Note’ (OPN) (World Bank) 34 Orang Asli 179–81, 185, 187–8, 194–5 dam projects and 192–4 defined 190 development consequences for 191–2 land rights 189–91, 192–4 in Malaysia’s development 188–91 status 189–91 Orang Ulu 187 Organization of African Unity (OAU) 9, 72, 75, 121, 123, 133, 230

Pakistan 37 Palestine, Mandatory 96, 98, 112n Palestinian Liberation Organization (PLO) 96, 98, 100–1, 104 Palestinian National Authority (PA) 101 Palestinian NGOs 101–2, 106, 109 Palestinian Red Cross Society (PRCS) 109 Palestinian refugees 90n categories of 98 Palestinian–Lebanese dialogue 104–5 Palestinians 74, 76–7, 162, 168 see also Lebanon, Palestinians in Parasuraman, P. 205, 215 Paul, D. 41 Peace and Development CBO 151–2 People’s Front for Democracy and Justice (PFDJ) 118 Peteet, J. 94–5 Picciotto, R. 178 Plant, R. 15, 208 Pogge, T. 59 politics affiliations 132–3 displacement 203–5 human rights and 14–15, 17–19, 64–7, 244–6 Islam and 134–5 Lebanese 96–9 Popular Police Forces (Sudan) 151 Posner, M. 12, 85 Poverty Reduction Strategy Papers (PRSPs) 66 ‘primary agent of justice’ 58 private sector 58–9

Index 257 Programme of Action on Poverty Reduction 34 ‘project affected persons’ 11 property, rights in Lebanon 108–9 protection 111, 240n reports 230–1, 232 social 52, 56–7, 64–7 Protection of Civilians in Time of War (Fourth Geneva Convention) 165 protest 63–4, 85 against UNHCR 223–5, 234–8 Cairo demonstration 71, 73, 74, 84–5, 225–9 Narmada Project 19, 202–3, 206, 209, 211, 215–16, 218 Protocol (1967) 31 ‘public’ good 29 Puchala, D. 42 Punja, A. 210, 215 Rachad, Mahmoud 76 racism 78 Rajagopal, B. 207 Rajaram, P. K. 166 Ramadan 228 Rangoon 2 Rashaida 127 Rashidieh refugee camp 101 Rayner, S. 203 ‘recognition route’ 56 Redesign Panel on Internal Justice (UN) 233–4 refoulement (forced repatriation) 226, 234 Refugee Law Project (RLP) (Uganda) 235–6 Refugee Reintegration and Rehabilitation of Resettlement Areas in Eritrea (PROFERI) 121, 123, 129, 130 Refugee Settlement Commission (League of Nations) 8 Refugee Studies Programme (Oxford) 223 refugees 2–6, 8, 9–10, 36, 218, 222, 223, 224, 225, 244, 245, 234 definition 10, 72 in Egypt 1, 17, 19, 71–92, 225, 226, 227, 228, 229, 230 Eritrean 127, 135, 116–38 foreign 106

higher education and 125 human rights and 11–16, 18 Iraqi 162 law 167 Liberian 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 173, 175, 232–3 naturalization 90n, 125, 126 ‘non-ID’ 99, 104, 113n non-registered (NR) 98 Palestinian 90n, 98–9, 93–115 regime 30 Rwandan 83–4 self-returned 130 Somali 83–4 spatially segregated sites 118 status determination (RSD) 162, 175, 232, 237 Sudanese 1, 17, 19, 79, 84, 140, 146, 155, 162, 164, 236, 225 regimes 2, 5, 6, 10, 15, 27–9, 31, 42, 43, 63, 142, 182, 185, 191, 207 conflict-induced displacement and resettlement (CIDR) 36–42 development-induced displacement and resettlement (DIDR) 32–6 forced migration and 28–9 international refugee 26, 29–32 principles, IDPs and 30 rehabilitation 204–5 /resettlement policies of Indian states 207 Rehabilitation and Resettlement Subgroup (Narmada Control Authority) 211 Relief and Rehabilitation Subgroup of Narmada Control Authority 205 religion, common 126–30 researchers 6–8, 73–4, 140–1, 160–2 resettlement 53, 75, 77, 81, 83, 84, 86, 87, 89 policy (World Bank) 216 or rehabilitation (RR) 206, 208–12, 215 residency, right to in Lebanon 103–5 responsibilities in Egypt 85–7 in Lebanon 166–71, 173–4 Narmada Project 214–15 states’ 174

258 Index responsibilities – continued UNHCR 72, 75, 78, 79, 80–1, 82, 83, 84, 85–7, 88, 162–3, 166–7, 168, 169, 170, 172, 173, 174–5, 229–32 returnees, ethnic distribution 128, 129 return/integration options 152–3 Right to Life and Livelihood 207 rights to asylum 76 basic 14 citizenship 72–3, 85, 94, 234 civil 14–15, 63–4 and development-induced displacement 52–6, 56–7, 57–64, 64–7 economic 73, 82, 123, 131, 135, 159, 161, 163–4, 165–6, 168, 175–6 to education 77–8, 78–9, 93, 95, 100, 109–11, 161–76 freedom of movement 103–5 health care 77–8, 79–80, 109–10, 164–6 land 189–91, 192–4 of return 93, 152–3 social 56–7, 64–7, 72, 73, 87, 88, 89, 105–8, 165–6, 124–35 to work 77–8, 79, 105–8 see also human rights rights-based approach viii, 4, 5, 6, 11–14, 17, 18, 19, 20, 33, 38, 42, 50, 62, 66, 67, 68, 95, 160, 166, 168, 169, 171, 172, 173, 174, 175, 180, 244–6 in Egypt 72–3, 82, 85, 87–9 in Sudan 140, 144–7, 145, 153, 154 see also human rights; Lebanon, rights-based approach in; rights; social rights risk model 53, 55 Risse, T. 28 Roadmap, Palestinians and 111 Roberts, A. 38 Robinson, C. 5, 14, 202, 207, 214 Robinson, M. 144 Rogge, J. 131 Rosli, O. 194 Roy, A. 203 RSDWatch 237 rules, IDPs and 30

Rutinwa, B. 39 Rwanda 83–4, 236 Sabah 192 Sabates-Wheeler, R. 52, 64 Sabra massacre 100 Sachs, W. 33 Sadek, S. 73 safeguards 35 ‘safe havens’ 37 Sahl, I. 148 Said, W. 102, 103–5, 106 sakai (slaves) 189 Salman, Abu Bara’ Hassa 134 Sardar Sarovar Project (SSP) 34, 205, 208 Save the Children 3, 13, 232 Sawa Sawa CBO 151 Sayigh, R. 95 Schaeffer, S. 227 Schleifer, Y. 182 Schulz, H. L. 94 scorched earth policy, Ethiopia and 127 Scott, J. 32, 33, 190–1, 193, 203 Scudder, T. 178, 201 ‘sedentarization’ 32 self-returned refugees 128, 130 Sen, A. 57, 65 Senoi 187 service providers, in Egypt 81–2 settlement strategies, in Sudan 118–20 Shami, S. 147 Shiblak, A. 94 Shihata, I. 36 Shi’ite Muslim sect 96, 98 Shoemaker, N. 180 Sierra Leone 74, 232–3 Sikkink, K. 29, 40 Simmons, B. 32 Skanska (Sweden) 59 Slim, H. 12 social protection 52, 56–7, 64–7 social rights access, in Sudan 124–35 in Egypt 72, 73, 87, 88, 89 human rights synergy 56–7 in Lebanon 105–8, 165–6 political will and 64–7 Somali refugees 83–4 Somalis 74, 76–7

Index 259 Sondergard, E. 106 Southeast Anatolia Project (GAP) 54 Special Economic Zones (SEZs) 1 Special Representative on Internal Displacement 37 Sperl, S. 75 Sri Lanka 37 ‘Statement of Policy Regarding the Administration of the Orang Asli of Peninsular Malaysia’ 189 status cessation of refugee 120–1 foreigner 93–4 Orang Asli 189–91 oustee 216 refugee, determination (RSD) 162, 175, 232, 237 see also Convention on the Status of Refugees Stavropoulou, M. 5 Stedman, S. 31 Strange, S. 28 structural conditions 130–1 Sub-Commission on Prevention of Discrimination and Protection of Minorities (UN) 184 Sudan 1, 8, 37, 226, 235 abu taka (national identity card) 122, 125, 126 demonstration 85 Interim Constitution (2005) 150, 154 Interior Minister 135 modirs (camp or settlement managers) 125 National Unity government 18 nationality jinsia 122, 125, 126 refugees: in Egypt 74, 76–8, 79, 84; in Lebanon 162, 164; UBHCR and 225, 236 tesrih (travel permit) 125 as umma (home) of Muslims 134–5 Sudan, Eritreans in 116–36 economic/social rights access 124–35 government hostilities 133–4 independence, response to 121–3, 123–4 policy/settlement strategies 118–20 political Islam and 134–5 refugee status, cessation of 120–1

returnees, ethnic distribution 128, 129, 131 Sudan, internally displaced persons in 93, 139–57, 245 Al Salam camp (Jabarona) 148–52 camp populations, estimated 147–8, 148 overview 141–2 return/integration options 152–3 rights-based approach 144–7 vulnerability of 142–4 Sudan People’s Liberation Movement/Army (SPLM/A) 141–2, 143, 226 Sudanese Women’s Union 80 Suffian, Mohamed 187 Suleiman, J. 6, 111 Sulzer Hydro (Switzerland) 59 Sungai Batu Dam 192 Sungai Selangor Dam 179, 190, 192–3 Sungai Selangor Water Supply Scheme Phase 3 (SSP3) 193 Sunni Muslim sect 96, 98 Syarikat Pengeluar Air Selengor Sdn Bhd (SPLASH) 193, 197n Sylvan, L. 222 Syrian workers in Lebanon 106 Ta’if Agreement 96, 101, 110 Talora CBO 151 Tan, P. L. 192 Tanner, F. 31 tawtin (permanent settlement of Palestinian refugees) 108 Tekfen (Turkey) 59 Temenggor Dam 179, 192–4 Temuans 179, 194 Tesfai, A. 134 The American University in Cairo viii, x, xv, 73, 74, 156, 176, 223, 226, 239 Third World governments 181 Thukral, E. G. 201, 204–5 Tiltnes, A. A. 98, 106 Titiwangsa Regroupment Programme 191 top-down approach 1, 3, 11–13, 15, 18, 27, 71, 73, 81, 160, 172, 173, 174, 203, 206, 245 torture 164 Torture Convention (1984) 31

260 Index Trad, S. 6 ‘training of trainers’ approach 235 ‘transmigration’ 32 transnational alliances 214 travel, right to in Lebanon 103–5 Turkey 234–5 resettlement programme 68n Turton, D. 7, 9 Uganda 224–5, 232, 235–6 Ukai Dam 204 United Nations (UN) 10, 27, 66, 146, 195 agencies 3, 74, 139 IDP definition 147 Lebanon and 96, 98, 159, 167–9, 171 responsibilities 174 system 182–3, 185 UNHCR and 231, 233 UN Convention on Refugees (1951) 5, 8–9, 21n, 31, 36–7 1967 protocol 57, 75, 230 Egypt and 72, 75–6, 87 Lebanon and 162, 163, 164, 169, 175 Sudan and 121, 123, 124 UNHCR and 229–30, 234, 239–40n UN General Assembly (UNGA) 21n, 36–8, 41, 111 UN Security Council 29, 32, 41 UNHCR see United Nations High Commissioner for Refugees (UNHCR) UNICEF (United Nations Children’s Fund) 3, 13, 150 United Nations Committee on Economic, Social and Cultural Rights 207 United Nations Development Programme (UNDP) 205 United Nations High Commissioner for Refugees (UNHCR) 1–2, 4, 8–9, 13, 19, 222–41 Cairo demonstration 225–9 Egypt and 71, 74–5, 78–9, 83–6, 88 Lebanon and 161–3, 166–71, 171–3, 173–4, 175 protests against 223–5, 234–8 regimes and 26, 29, 31–2, 34, 36–42

responsibilities 72, 75, 78, 79, 80–1, 82, 83, 84, 85–7, 88, 162–3, 166–7, 168, 169, 170, 172, 173, 175–5, 229–32 role of 80–1 Statute 31 Sudan and 120–1, 122–3, 124–5, 130 as violator 232–4 United Nations Relief and Works Agency for Refugees in the Near East (UNRWA) 8, 90n, 162, 168 Health Programme 109 Lebanon and 98–9, 102–4, 106, 109–10 United States of America (USA) 75 Committee for Refugees (USCR) 104, 166 Universal Declaration of Human Rights 1948 (UDHR) 8, 14, 20n, 31, 33, 51, 56, 58, 104–5, 184, 207 Universal Declaration on the Rights of Indigenous Peoples (2007) 17 Universal Human Rights Conventions for border-crossing refugees 57 universalisms 14–15 Urgewal 214 Verdirame, G. 5, 167, 223, 224–5, 231–2, 235 ‘victim diaspora’ 96 Vietnam 37 ‘villagization’ 32 Vincent, M. 142 Vinding, D. 180 ‘Voluntary Work Law’ (Sudan) 146 Voutira, E. 11, 13 Waite, M. 52, 64 ‘walking boys’, Sudanese 231 Walkup, M. 232 Walzer, M. 16 ‘war of the camps’ (1985–9) 96, 100, 112n war of independence (1961–91) (Eritrea) 118, 120 water, access to 209, 210 Weiner, M. 87 Weiss, R. 27, 29, 37, 39–40 Wendt, A. 28

Index 261 ‘What’s Wrong With Our Criminal Justice System?’ (Harrell-Bond) 235–6 Wigley, B. 232 Wilkinson, J. 66 Williams-Hunt, A. 190 Winzeler, R. 188, 191 Wolfensohn, D. J. 52 women 56, 57–8, 216 marginalization of 186 Wood, G. 9 work right to in Egypt 77–8, 79 right to in Lebanon 105–8 Working Group on Indigenous Populations (WGIP) 184, 195 World Bank 8, 34–6, 39, 178, 237 development-induced displacement and 51–2, 58, 61, 67 Narmada Project and 201, 205, 207–8, 212–14, 216–17 World Commission on Dams (WCD) 17, 36, 60

Narmada Project and 203–4, 206, 214, 216 Orang Asli and 178–9, 181, 183, 193–4 World Food Programme 40 World Rainforest Movement (WRM) 178, 185 Xiaolangdi Dam (China) 61 Yarbrough, B. 28 Yarbrough, R. 28 Yavus, H. M. 58 Yong Ooi Lin, C. 7, 178, 185–6, 188, 192 Young, O. 28 Zeender, G. 29, 41 Zetter, R. 9–10 Zhu, Y. 181 Zohry, A. 76 Zureik, E. 95