Ménage à trois

Every refugee researcher has an opinion on UNHCR and its role in providing refugees’ protection.
For some, UNHCR is the devil incarnate, responsible for many refugees’ imprisonment in camps and part of the problem, rather than the solution. Others – especially lawyers – point to its legal mandate and its institutional power, and join its staff. The vast majority of us, I think, see UNHCR as struggling to preserve its principles against states’ incessant clamour for immediate actions to remove – rather than protect – refugees. An imperfect organisation, certainly, but one which – in pragmatic terms – we’re unlikely to improve upon in the near future.
I often find myself defending UNHCR against that first group – who suspect UNHCR of every complacency and complicity. In my view it’s states – the donors UNHCR is dependent upon – who are primarily responsible for the evident failures of asylum protection across the world. Borders and citizenship are fiercely protected markers of state sovereignty: UNHCR has little power.
But UNHCR can persuade and it can advocate, and over the past two years I’ve had contact with many perceptive and thoughtful staff. I’ve tended to believe that the dark days of the 1990s – when UNHCR collaborated in the forcible return of Burmese and Rwandans – have been succeeded by more nuanced, careful policies and a recognition of refugees’ own agency.
And then something like the Malaysia deal appears.
The terrible flaws in the plan to swap 800 Australian asylum-seekers for 4000 recognised refugees from Malaysia are evident. The risk of human rights abuse,the possibility that unaccompanied children might be shipped away, the fact that Malaysia is not a signatory to the Refugee Convention or the Convention Against Torture, that asylum-seekers would be at risk of caning — all these are such clear violations of the basic principles of refugee protection that it is no surprise that the UN Human Rights Commissioner has condemned the plan as ‘inhumane’, while UNICEF Australia is ‘dismayed and shocked’.
These plans are shocking – but hardly surprising. Australia has a poor record of manufacturing refugee crises in order to evade its international responsibilities and stretch refugee law to breaking point. It’s pretty telling that the Opposition’s response to these plans isn’t to demand that the rights of asylum-seekers be respected, but to suggest a return to the “Pacific Solution” involving indefinite detention in off-shore processing centres. A practice stopped in 2007 after almost universal outrage at the conditions detained refugees faced.  The Labour Left are right — ”The Australian debate about asylum policy has now degenerated to the point where the central argument seems to be about which inhumane policy will cause the least suffering”
UNHCR spoke out against the Pacific Solution. But its current silence — even its tacit support — for the Malaysia plans is deeply troubling. Although UNHCR’s spokespeople may talk of ‘adequate protection safeguards’, and leaked emails provide enough space to engineer a possible U-turn on protection grounds, let no one pretend that this deal is about refugee protection. It’s about Australian electoral politics. And disturbingly, UNHCR is being used for cover. Steve Georganas, a Left MP who holds the marginal seat of Hindmarsh in South Australia, has commented in the media that he is ”quite comfortable” with the plan ‘so long as the UNHCR [is] involved’. UNHCR is thus potentially being used to legitimise Australia’s evasion of its international obligations with serious consequences for hard-won asylum principles.
Sadly, we’ve been here before. In the 1990s, UNHCR convinced itself that working with Bangladesh to promote returns to Burma would help to open up new space within Myanmar for refugee protection and genuine protection gains. Nearly twenty years on, and we’re still waiting (as are many of the refugees). A second ambitious claim along these lines – that the deal will improve the appalling conditions faced by Malaysia’s “illegal immigrants” – begins to look like carelessness.
UNHCR doesn’t have much power when faced with state intransigence. But it should have principles. And in choosing to acquiesce to state realpolitik, it risks making those principles — and its own protection role — meaningless. States will always resist as much as is possible any obligation based on universal principle rather than national interest. UNHCR shouldn’t help them to do this — even if it can not always stop them.
UNHCR should publicly walk away from the Malaysia deal. Two-thirds of Australians oppose the deal. Given the Australian Government’s need to at least present this deal as “humanitarian” (cover provided provided by UNHCR’s approval), UNHCR’s withdrawal of support might be enough to cause the deal to collapse. That would protect refugees — and UNHCR’s reputation.