A community-based approach to refugee protection in a protracted refugee situation

The Burmese refugee camps on the Thai–Burma border are characterised as a protracted refugee situation.[1] The nine camps spread across four provinces have been in existence since the mid-1980s, and have a collective population of approximately 135,000 people.[2] The ethnic conflict precipitating much of the forced migration continues unabated in Burma, with at least 3,000 people fleeing to Thailand in 2009.[3]

Until 1998, there was no formal protection programming in the camps. UNHCR was barred from entering them, and NGOs were prohibited from implementing programmes focusing on refugee rights. Camp residents faced (and still face) an array of threats from state as well as non-state actors: substance abuse, sexual violence and other criminal behaviour were widespread within the camps; abuse and exploitation at the hands of Thai officials and local communities also occurred, as did intervention from military groups across the border. Years of negative experiences and sparse communication eroded trust and engendered suspicion between Thai and refugee communities. The Thai authorities were reluctant to assert jurisdiction in the camps, while camp residents were equally suspicious of the Thai legal system. To manage the situation, the camps devised their own justice system to handle civil and criminal disputes. Although the system offered some legal remedy, outcomes were less than ideal and the system could not address underlying protection issues. The consequence was a lacuna in protection for camp residents.[4] Refugees were left with little or no access to justice or legal protection within the camps.

In 2007, UNHCR in partnership with the International Rescue Committee (IRC) created a programme to improve access to justice and physical protection in the camps. In July 2007, the Legal Assistance Center project (LAC) became operational. Piloted in three camps[5] along the Thai–Burma border, the project provides legal advice and counselling, facilitates training and mentoring, provides material assistance and offers interpretation and transport services to witnesses and others. The goal of the project, however, is to use community engagement and capacity-building to foster a greater understanding of and appreciation for the rule of law and protection amongst Thai stakeholders and refugees, thereby establishing a functional system for accessing justice, providing legal protection and upholding the basic rights of refugees.

The protracted nature of displacement warranted something other than the traditional emergency response model. Because the camps had been in existence for almost 20 years, IRC and UNHCR had to apply protection programming in an unusual humanitarian context. Camp-based judicial institutions could not be overlooked, so engagement and capacity-building within these structures had to be considered. Moreover, with no foreseeable resolution to the political situation in Burma, the protection programme had to be sustainable and flexible with a long-term perspective. What emerged was a model for protection programming grounded in the development framework and focused on community engagement. This article discusses the advantages of such an approach in protracted refugee settings.

A Human Rights-Based Approach to protection programming

Although often cited in development contexts, the Human Rights-Based Approach (HRBA) is not always made explicit in protection programming. The HRBA consists of the following elements: (1) using international human rights standards; (2) empowering target groups; (3) encouraging participation; (4) ensuring non-discrimination; and (5) holding stakeholders accountable to fundamental rights.[6] The HRBA is advantageous in two key respects: it encourages a process that emphasises empowerment, participation and non-discrimination, each of which is vital to achieving sustainability and community engagement; and it grounds the project and its outcomes within a human rights framework, facilitating monitoring and stakeholder accountability. The LAC project applies the HRBA as an essential tool in realising protection programming that is sustainable and community-based.

Government engagement

Prior to the LAC project, many local Thai government departments, particularly in the justice sector, had by and large never visited the camps or engaged with the refugees. To formally mandate the work of the project, the Thai central government sought to establish a government-led Steering Committee[7] to endorse project activities. With the assistance of this committee, IRC has been able to cultivate engagement between local police and prosecutors, juvenile justice and municipal officials and camp leaders. Greater engagement between Thai stakeholders and camp residents has led to increased understanding and collaboration. For example, meetings between Thai judges and camp leaders led refugees to change their perception of the Thai authorities. Refugees became more willing to share ideas and work collaboratively with the Thais. Equally, the Thai judges themselves reached a better understanding of refugees and of the camps in general. Police were brought into the camps to train camp security officers, developing a greater sense of partnership between the two.

Greater trust between Thais and refugees has seen an increased willingness among camp leaders to refer serious crimes to the Thai justice system; in turn, the Thai government is increasingly willing to accept jurisdiction in serious cases and involve itself in the camps. The refugees have come to acknowledge that certain crimes are best handled outside of the camp justice system. For example, cases of murder, serious assault, child rape and drug offences would be handled in the Thai justice system, whereas civil disputes, petty crime, public disorder and minor violence would be handled within the camp justice system. The law reform process described below clearly sets out the jurisdictional boundaries. In the year prior to the LAC project, seven cases were dealt with in the Thai justice system, compared with almost 300 since the project became fully operational. This represents a transformation in the way crime is handled in the camps.

Better relations have also translated into improved mechanisms for dealing with abuse in the camps. For example, tension between Thai security volunteers and camp youth culminated in the shooting of a young camp resident in late 2007. A Thai government Peace Restoration Committee was formed; a process for legal remedies and redress for both parties was devised; and a process of law reform in the camps was initiated. What could have become a protracted stand-off between the Thai volunteers and the refugees the two sides became a forum for discussion and confidence-building.

Engaging with refugees

Adopting the principles of HRBA, IRC staff initially worked to win the trust and support of camp leaders. The LAC project focused on relationship-building with senior camp leaders. The project then branched out, to all groups and levels within the camp, using different methodology and approaches tailored to the stakeholders and their respective positions, including community-based organisations and civil society groups. Engaging with the refugees was essential for the LAC project to be able to build capacity and work with the camps’ judicial structure. It also allowed for greater community ownership of protection programming initiatives.

The law reform process

The law reform process begun in earnest after the 2007 shooting incident is one example of how better relations between refugees and government authorities can lead to better access to justice and physical protection within the camps. The law reform process was requested by the camp leadership and the Thai authorities. The objective of the process is to establish a legal code for the camps that adheres to Thai law, while also recognising informal justice practices within the camps. For the refugees, the process is an opportunity to inject more clarity and consistency into the informal justice system. For the Thai authorities, it is a chance to become an active part of the judicial process in the camps, and bring it into conformity with Thai law. IRC provides assistance on Thai law, while a drafting committee discusses and drafts the law. Once a draft is completed, the camp leadership hosts a public forum to discuss the proposed law. All branches and levels of the camps are represented, with special priority given to minority or ‘vulnerable’ groups. All parties are given an equal voice in the forum; if one group does not agree with the draft, there is discussion until consensus is achieved. Once a draft is approved, it is forwarded to the Thai authorities for review. The authorities are invited to give comments and informally endorse the draft.

The benefits of the law reform process are two-fold. First, a mutually agreed legal code is helpful in reducing conflict and misunderstanding, establishing greater clarity on what is permissible and what is prohibited behaviour in the camps. Second, the law reform process works to change the negative attitudes and local prejudices that cloud relations between the refugees and the Thai authorities by increasing engagement, dialogue and cooperation. Since the reform process began, the Karenni Refugee Community has completed a camp Constitution, created a referral procedure for serious crimes to the Thai justice system and produced a code of general crimes in the camps.

Development and sustainability in protection programming

A development framework, grounded in long-term sustainability and community engagement, is preferred in protracted refugee situations for a number of reasons. Because this approach makes more sense in a protracted context it is easier to get stakeholder support. Donors see it as more financially viable; community members who are engaged as key stakeholders in protection programming gain greater control over their own situation; and the host state is provided with management tools better suited to handle protracted refugees situations, in place of a precarious assurance of emergency assistance.

One aspect of the LAC project’s sustainability strategy is its network of paralegals in the camps. The long-term objective is for the paralegals to take on the majority of functions: providing legal advice and client follow-up; monitoring detentions in the camps; and assisting in the capacity-building of camp leaders. Using community-based paralegals means that the refugees are engaged and actively participating in their own protection. Such an approach is beneficial, not only in engendering community ownership of the protection programme, but also in achieving sustainability, institutional functionality and community capacity-building. The project encourages a structure that is progressively less reliant on IRC and UNHCR support and donor funds. And it provides the refugees with knowledge and skills that will endure beyond the end of the funding cycle, whether they remain in Thailand, resettle in a third country or return to Burma.

Conclusion

The LAC project has only been fully operational since 2007. Nonetheless, initial results are promising. As mentioned above, the numbers of refugee cases handled by the Thai justice system has increased dramatically. In 2008 and 2009, the Thai authorities provided, for the first time, workshops for camp leaders on policing, security and the law. Both the Thai authorities and the refugees have provided positive feedback on their experiences with the LAC project.

The LAC project represents a new approach to programming in protracted refugee settings. Faced with the complexities of a long-term situation, LAC opted for a project that did not follow the traditional emergency response model. Using HRBA, LAC designed a project model grounded in a development framework, focused on sustainability and community engagement. The objective was to create a programme that is not only empowering to the refugees, but also sustainable for donors and the host state.

Joel Harding is IRC Thailand’s Senior Protection Coordinator. His email address is Joel.harding@theirc.org. Sheila Varadan is a Rule of Law Specialist for the IRC Legal Assistance Center Project. Her email address is srvaradan@googlemail.com.

[1] The UNHCR defines protracted refugee situations as ‘refugee populations of 25,000 persons or more who have been in exile for five or more years in developing countries’. ‘Protracted Refugee Situations’, Executive Committee of the High Commissioner’s Programme, Standing Committee, 30^th Meeting, UN Doc. EC/54/SC/CRP.14, 10 June 2004, p. 2.

[2] See Thai–Burma Border Consortium website, http://www.tbbc.org/camps/populations.htm.

[3] The Thai government is not party to the 1951 Convention Relating to the Status of Refugees nor does it recognise refugees within its domestic legislation. Although the government tolerates the camps, the status of residents remains precarious, and they are subject to resettlement or eventual deportation.

[4] See J. Harding et al., ‘Access to Justice and the Rule of Law’, Forced Migration Review, Issue 30, April 2008.

[5] Ban Mai Nai Soi in Mae Hong Son; Ban Mae Sariae in Mae Hong Son; and Mae La in Tak.

[6] The project adopts the concept of a Rights-Based Approach as defined by the International Human Rights Network in Human Rights Approaches to Development: Overview.

[7] The LAC Working Committee consists of representatives of the Ministry of the Interior, Ministry of Justice, the Thai police and the departments of National Security, Provincial Administration and the Office of the Prosecutor, as well as UNHCR and IRC.