ျပည္ပေရာက္ ၈၈ ေက်ာင္းသား နဲ ့ UNHCR သမိုင္း

Ko Htay Tint

ျပည္ပေရာက္ ၈၈ ေက်ာင္းသား နဲ ့ UNHCR သမိုင္း
(တတိယႏိုင္ငံေတြမွာ အေျခခ်ေနထိုင္ဖို ့ ဆိုတာ တခ်ိန္က အိမ္မက္္လိုဘဲ)

(ေက်ာင္းသား တပ္ရင္းတပ္ဖြဲ ့ ေတြက UNHCR ေလွ်ာက္ရင္ ေသဒဏ္)
(နယ္စပ္ျဖတ္ေက်ာ္ဖို ့ ျပသနာ)
(နယ္စပ္ကေနျပီး ဘန္ေကာက္ေရာက္ဖို ့ ျပသနာ)
(ဘန္ေကာက္မွာ ေနစရာ ျပသနာ )
(ထိုင္းလူဝင္မႈကဖမ္းျပီး နယ္စပ္ျပန္ပို ့တဲ့ ျပသနာ)
( အခ်င္းခ်င္း နားလည္မႈလြဲလို ့ ရိုက္ပြဲျပသနာ)
(တတိယႏိုင္ငံေတြ လက္ခံဖို ့အခ်က္အလက္ရွာေဖြတင္ျပမႈ ျပသနာ)
( ေတာထဲက ထြက္လာဖို ့ ေငြခ်ဴးတျပားမွ မရွိတဲ့ သူေတြ အုပ္စုလိုက္
ဘန္ေကာက္ေရာက္လာဖို ့ စဥ္းစားၾကည့္ေစခ်င္ပါတယ္ )

ကၽြဲကူးလို ့ ေရပါလာတဲ့ လူတန္းစားေတြ ၾကည့္ျပီး
စြန္ ့စားသူမ်ားေဖါက္တဲ့ လမ္းေပၚက သာသာေလးေရွာက္ျပီး
လြယ္တယ္မထင္ၾကပါနဲ ့ ။

Protection and the role of UNHCR for 1988 Burmese Students History

If Thailand eventually allowed UNHCR to assist the students, it denied the agency any real opportunity to protect them. The failings of the protection system stemmed from the way UNHCR defined who was a refugee; the system of documentation provided or lack thereof; the inability to prevent deportations; and the extent of Thai government interference in the procedures of UNHCR.

UNHCR only reached an agreement with the Thai government on assistance to Burmese in mid-1989 after the Thaiarmy had sent at least 387 Burmese students back to Burma from the Tak Repatriation Center, many of them apparently against their will. After the agency was allowed to encourage students at the border to register at the UNHCR office in Bangkok, it interviewed asylum applicants to determine if they were students who had directly participated in the 1988 demonstrations and fled to Thailand immediately afterwards. If they had, they were recognized as "persons of concern to UNHCR." Anyone who left Burma later than 1988 or was from an ethnic minority group was rejected. It meant, for example, that a student who had stayed in hiding in Rangoon into 1989 before finally deciding to leave, or a villager whose brother had joined an ethnic rebel army and who had been persecuted in his brother's stead by the Tatmadaw, would be ineligible for refugee status.

From mid-1989 until November 1989, UNHCR provided successful applicants with a letter identifying them as persons of concern. Each "person of concern" also received assistance in the form of 3,000 Baht a month, which was the standard amount given to recognized refugees of any nationality;[52] medical assistance; some educational classes; and social services at the offices of the Foundation In Support of Refugee Assistance Programs in Thailand (FISRAPT), a Thai NGO through which UNHCR administers refugee assistance, in Bangkok.

In November 1989, after coming under pressure from the Thai Ministry of the Interior and the National Security Council, UNHCR stopped issuing any documents to recognized refugees from Burma. UNHCR also agreed to provide to the Thai government lists of those identified as refugees, although there were no guarantees that the lists would not be passed on to the SLORC. In an attempt to give some kind of documentation, from August 1990 UNHCR required those identified as refugees to sign an undertaking to abide by Thai law and UNHCR principles. The signed paper was to be kept with them at all times, but it was no longer given out after November 1990, when two Burmese registered with UNHCR hijacked a Thai Airways plane bound for India.

With no documentation and no measures taken by the Thai government to protect them, the refugees faced the same risk of arrest and deportation as all illegal immigrants in Thailand. Indeed, many felt that refugee status, which marked them out as political dissidents, actually increased the danger of indefinite detention if they were not deported back to Burma, and certainly increased the likelihood that they would be exploited by corrupt Thai police and immigration officials, who were well aware of the amount of money they received from UNHCR and the day of the month on which they received it. Paying off the police or paying their way out of immigration detention soon became routine for the refugees.[53] As a result, in 1991 a number of applicants to UNHCR withdrew their applications, believing they would be better protected by taking their own chances as illegal migrants in Thailand.

"Persons of concern" detained as illegal immigrants could not rely on UNHCR to prevent deportations, despite the fact that UNHCR had a local representative working in an office in the Immigration Detention Center (IDC) in Bangkok whose job it was to seek out and assist detained refugees.[54] Restricted by Thai immigration law and the government's failure to make provision for the recognition and protection of refugees and asylum seekers, the only steps UNHCR could take to protect the refugees was to insist that they remain in indefinitely in the IDC, where overcrowding and inhumane treatment by guards and cell leaders made life intolerable. In April 1991 a group of forty-one persons who had been recognized as refugees by UNHCR but were detained in Bangkok's IDC were forciblydeported to Burma by Thai immigration officials via Ranong. Two months later, in June, some 300 people were reported to have been returned to Burma via Ranong, including thirteen Burmese students recognized as refugees by UNHCR. Sometimes the UNHCR representative from the IDC accompanied the trucks carrying the students to Ranong. He was unable, however, to prevent the deportations. That same month, thirty-eight Burmese refugees, recognized as such by UNHCR, were arrested for staging a sit-in at Bangkok's IDC demanding that the Thai authorities recognize them as refugees and halt repatriations.[55] This was followed by an instruction from Bangkok Deputy Police Commissioner Maj. Gen. Chaisit Karnvanakit to police to take "stringent action" against Burmese asylum seekers. Just how stringent soon became clear when, on July 31, Min Thein (also known as Moe Gyi), a twenty-four-year-old student whom UNHCR had recognized as a refugee the previous February, was shot in the back while attempting to run away from Thai immigration officers in Bangkok.[56]

For those deported by Thai authorities, the final destination in some cases was jail. The Burmese state radio station announced in July 1991 that returnees from Thailand were being sentenced to six months' imprisonment for leaving the country illegally unless they paid a 1,500 kyat fine.[57] At least four students who were deported during this period were sentenced to thirteen years' imprisonment with hard labor, under the immigration law and the 1975 Unlawful Associations Act, section 17(1). Human Rights Watch later learned that some of the returnees who could not pay the fine were taken to work on forced labor projects.

After the "safe area" was established, the key protection issues related to the screening process for entry, which was administered by the Thai Ministry of the Interior and not UNHCR, and the lack of adequate protection measures within the camp when it first opened. When students refused to enter the "safe area," in part because of these concerns and in part because they wished to continue their political activities in Thailand, the Thai government used arrest and the threat of indefinite detention or deportation as illegal immigrants to force them into the camp. There was no distinction in practice between those recognized as refugees by UNHCR and those who had been rejected or had never applied for asylum. In addition, no provisions were made to ensure that family units could stay together, resulting in many fathers who were allowed to enter the safe area being separated from their wives and children.

On February 12, 1992, the Interior Ministry announced that all Burmese students should report for an initial registration leading to eventual entry to the "safe area" between February 17 and May 15, indicating that the group that would be allowed into the "safe area" would be a smaller pool than that of UNHCR-recognized refugees. It was again reiterated that the Ministry of the Interior would be the sole administrator of the "safe area" and responsible for "screening procedures."[58] No official criteria for screening were published by the ministry.

By September, no students had entered the "safe area," and 512 students were ordered to report there betweenSeptember 14 to 18. They had been selected by the Interior Ministry out of 1,333 applications.[59] Some 90 percent of these had previously been interviewed by the UNHCR and determined to be refugees, but so had almost 1,300 others, with an average of one hundred applying to the UNHCR for protection every month.[60] It was not clear who the other 10 percent were, but they had been cleared directly by the ministry. Still concerned about Thailand's intentions for the "safe area" population, none of the 512 reported as ordered. The minister of the interior extended the deadline to November 30 and stated that after that date anyone who failed to turn up at the "safe area" would be arrested, charged, and deported.[61]

In November 1992 UNHCR announced in a press release that "the Safe Area concept cannot be justly criticized by the UNHCR as long as the students are provided with adequate security, protection, shelter, food and medical care and access to education and training with access to the Safe Area by NGOs and UNHCR." That these conditions would be in place, however, was far from clear at that stage UNHCR was still negotiating its own access arrangements.[62]

As 1993 dawned only a handful of people had entered the "safe area." Thai authorities, rapidly losing patience with the students, stepped up the pressure in their own way. In the final two weeks of 1992 an estimated fifty students, most of whom had been registered with the Ministry of the Interior to go to the "safe area," were arrested and detained at the IDC in Bangkok. Such arrests continued through 1993. Of those arrested, many students who were politically active and seen as troublemakers were sent to the Special Detention Center (SDC).[63] As arrests continued during 1993, those detained were told that all those who were UNHCR-recognized refugees, not just those registered with the Interior Ministry, would have to go to the "safe area" after serving forty days at Bangkok's IDC and paying a 2,800-Baht fine.

In the "safe area" itself, the numbers of residents remained low, with 135 in residence in mid-October 1993. UNHCR was able to have daily access to the camp and established an office there, although it had no overnight access orpresence. An NGO, the Catholic Office for Emergency Relief and Refugees (COERR), had one staff person in the camp who provided some educational assistance to the residents, but there was little for the Burmese to do. Boredom and frustration often erupted into arguments, and in September the UNHCR office was broken into.[64] Complaints from the residents centered on restrictive curfews, travel restrictions, security guards' violent behavior towards residents, guards' sexual harassment of female residents, and tensions with local Thai villagers.[65] A government official announced in response that they had "strictly enforced measures to ensure that the Burmese students will not contact NGOs to complain. This must be done to uphold the country's image."[66]

In January 1995 tensions in the "safe area" came to a head, resulting in 150 of the by then 180 residents marching out of the camp after violent clashes with camp security guards in which two students and nine security guards were injured. Blocked from marching to Bangkok, over half of them agreed to return, but those who did not were transferred to the SDC in Bangkok. These students, considered troublemakers, were kept at the SDC, where access to them was extremely limited. They were gradually released in small groups, most back to the "safe area," starting from June 1995 and extending into 1996, after lengthy periods of detention, which left many of them in poor health, and one later died.[67]

By the end of July 1995 the "safe area" was more than full: the recreation room had been converted into a dormitory and three additional shelters, two of which were temporary bamboo sheds, had been constructed to house others. In these new shelters all the residents had to sleep on one long, raised wooden platform, separated only by their mosquito nets. There was concern about privacy, especially of single women and young families, and hygiene. At the same time, new restrictions were imposed in the "safe area." The freedom of the refugees to be able to travel out of the "safe area" was stopped.[68]

When the "safe area" was finally closed to all new residents in July 1996, protection of and assistance to those recognized as refugees by UNHCR continued to be a major problem. While the Thai government had decreed that no refugees could have access to the camp, no provisions were made to differentiate and protect from detention and deportation those who would otherwise have entered the camp. When Thailand closed the "safe area" in February 1996 there were 911 residents, of whom 750 were not registered with the Thai Ministry of the Interior. By this time UNHCR's entire Burmese caseload, which then stood at 3,256 people recognized as refugees, had been cut off from receiving UNHCR assistance in Bangkok, although over 350 who were registered with the ministry to enter the "safe area" were still waiting to be admitted and were effectively stranded in the capital. UNHCR requested and was permitted to resume assistance to these people, although by July 1998 the camp was still closed, and Burmese asylum-seekers thus remained once again vulnerable to arrest, detention and deportation as illegal immigrants. In May 1998 those who were illegally in the camp, that is, registered only with UNHCR but not with the Ministry of the Interior, were given a deadline of June 3 to leave. Over 300 people, mainly women and children, left at night to avoid arrest once outside the camp, and most of them made their way to Bangkok. Unable to receive assistance, and with their spouses still in the camp, by the end of July 1998 it was unclear how these refugees were surviving.
Refugee status determination procedures

Throughout, there were concerns about the procedures employed by UNHCR in determining who was a refugee. Although there is no specific regulation as to how refugee status determination should be conducted, either by UNHCR or states, UNHCR has issued a Handbook on Procedures and Criteria for Determining Refugee Status,[69] and ExCom has recommended that such procedures should satisfy certain basic requirements.[70] In order to register with UNHCR in Bangkok, applicants had to personally attend the office to submit four photographs and a written statement of their case. They also had to submit any documents relevant to their application. Applicants from Burma were given a card bearing an "NI" (meaning non-Indochinese) number and a date for an interview. Interviews by an eligibility officer would normally take place two weeks after the initial application had been lodged, although at times this period was far longer when staff shortages made it impossible to keep up with the number of applications lodged. If an application was rejected, a letter would be sent to the applicant informing him or her of this. No reasons for the rejection would be given in the letter, making it difficult to exercise an effective right of appeal. UNHCR staff in Bangkok informed Human Rights Watch that reasons were not given in refusal letters because it would facilitate more sophisticated fabrication of applications, as people would know what they needed to say in their applications in order to succeed.[71] It is significant that in its Training Module on Determination of Refugee Status UNHCR states that where it is conducting refugee status determination, "rejected applicants should be told the reasons for rejection."[72]

An outright rejection decision could be appealed within one month. After June 1995, however, there was no longer an automatic second interview as part of the appeal process, and the appeal decision was made solely on the basis of further written evidence and submissions only. Refugees were not permitted to be accompanied by legal representatives to UNHCR interviews, either as part of the initial application or the appeal, although NGOs were available to assist in the preparation of appeals.

In addition, there was no formal right of appeal against the decision to classify an applicant as a "border case," as this was considered to be a positive recognition decision. A "border case" was someone recognized as having a legitimate fear of persecution in Burma but who faced no threat of "secondary persecution" at the border and could therefore be sent to one of the camps there. The term (and the policy) initially applied to ethnic minority applicants, and even those who classified as "border cases" were given the option of going to the "safe area" rather than being returned to the border.
The denial of appeal to those classified as "border cases" became a major problem after mid-1995 when the policy was extended to all Burmese, not just minority applicants. All applicants then had to go through two stages of screening: the first was to determine whether the individual had a well-founded fear of persecution in Burma, in which case he or she would be categorized as a "person of concern." The second stage was to determine if the applicant also had a fear of persecution at the border, or, in UNHCR terms, a fear of "secondary persecution." It was not clear what the criteria were for secondary persecution, for although the UNHCR office in Bangkok had drafted an internal memorandum setting out the criteria for determination of the second stage of this assessment, this had not been made public.[73] If a person passed the first stage but failed the second, he or she was given a letter stating that protection and assistance were available at the border. By this time the "safe area" was nearly full, and "border cases" no longer had the option of going there.
It would seem that the criteria for determining secondary persecution were highly subjective. In one case a Karen man interviewed by Human Rights Watch at the "safe area" in November 1995 said he had applied to UNHCR in June 1995 and was at first told that he was a border case, despite being a member of the KNU whose name was on a list of those wanted by the Democratic Karen Buddhist Army, a group that at the time was attacking refugee camps and abducting key KNU members. Two weeks later, feeling desperate and unable to go back to the border, he telephoned to UNHCR again to plead with them to allow him into the "safe area." He was given a verbal agreement and immediately went to the UNHCR office with the required photographs and was able to enter the "safe area" on August 28. In his case, his wife and two young children were permitted to enter with him.
Indeed, this case highlights the fact that the border case policy was extended by UNHCR just at the time when the border was becoming an increasingly dangerous place for refugees. From February 1995 onwards there had been numerous attacks on refugee camps in which ethnic minority refugees were abducted or killed, their shelters razed, and threats were continually made against them. For Burman applicants, return to the border was simply not an option. The student camps, all on the Burma side of the border, had largely been overrun, and the refugee camps, which were run by committees established by the armed ethnic groups, often did not accept the students. In addition, students were sometimes arrested by the Thai military or border police as they tried to enter the camps. In one example highlighting their particular vulnerability, ten Burmese students were arrested by the Thai military in Tham Hin refugee camp on July 9, 1997, having already been arrested and detained in April on their way to seek refuge in Bo Wi refugee camp.[74]
In its December 1997 revised Policy on Refugees in Urban Areas, UNHCR states the general principle that "UNHCR's obligations in respect of international protection are not affected by either the location of the refugees or the nature of the movement to that location. Whatever the nature of the movement or legal status of a person of concern to UNHCR in an urban area, the over-riding priority remains to ensure protection, and in particular, non-refoulement and treatment in accordance with recognized basic human standards."[75] Furthermore, the policy continues, "Freedom of movement is the rule under international law and restrictions should be the exception, though some restrictionssuch as the location of refugees away from the border respond to protection concerns."
UNHCR's policies in Thailand have clearly not complied with these basic principles. The "border case" policies, aimed at containing Burmese refugees in camps at the border and returning those refugees who sought asylum in urban areas to the camps, often severely compromised the right to freedom of movement and the protection of the refugees. Camps at the border were becoming increasingly closed and offered minimal or no protection to the refugees, either from cross-border attacks or from refoulement to Burma, and respect for the refugees' most basic human rights often could not be guaranteed.