Agency and Intervention: The Operation of Law within Thai Camps for Karen Refugees

Introduction

The refugee is often depicted as a person devoid of agency — a victim that has been denied her citizenship rights, who is both voiceless and invisible.[1] The refugee-as-victim discourse helps to justify authoritarian rule within refugee camps.[2] This construction of refugee identity also marginalizes the role of refugees within camp management.[3] And yet refugees often subvert aid policies, stage protests, and manage their internal affairs through justice and other governance mechanisms.[4]

This post examines Burmese refugee-led justice mechanisms in Thai camps to illustrate how refugee-led legal and governance initiatives may be subverted by international interventions. Section 2 outlines the various sources of law that operate within refugee camps. Section 3 explores the operation of law and refugee-led justice mechanisms within Thai camps for Burmese refugees of Karen heritage. Finally, Section 4 argues that international mistrust of refugee-led justice mechanisms has hindered community-based governance within the camps. In examining these issues, this post draws heavily from the sociological work of Kirsten McConnachie, one of the few scholars to have studied extensively the governance and administration of justice within refugee camps.[5]

2. Law in Refugee Camps

International and domestic laws operate within refugee camps as formal sources of law, often alongside the legal customs of refugees themselves. Camps also operate pursuant to their own enforceable bylaws.[6] At the international level, various human rights treaties apply within camps, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The 1951 Refugee Convention is an important source of international law that often applies within refugee camps, both providing a definition for who constitutes a refugee and outlining the various rights of recognised refugees.[7] For those states that have not ratified these instruments, certain human rights and refugee law principles have become binding by virtue of their status as customary international law.[8] In theory, then, international law provides refugees with various universally recognised rights. However, as this post argues in the next section, international law can be a tool to delegitimize refugee-led justice mechanisms.

At the domestic level, refugees are required to adhere to the laws and regulations of the country in which the camp is located.[9] The degree to which the domestic laws of host states apply within camps vary widely.[10] Host state governments are often unwilling to actively address law and order issues within camps.[11] Local police forces do not always intervene when refugee rights are violated and refugees are often barred from accessing the formal justice sector.[12] The result is that UNHCR and its regulations often become the de facto authority.[13]

In practice, most legal disputes involving refugees are handled by informal justice systems and dispute resolution mechanisms.[14] These mechanisms are often based on customary or religious principles in the refugees’ countries or communities of origin.[15]   Generally, the decision-makers are respected members of the community.[16] As such, these mechanisms tend to enjoy high levels of legitimacy within refugee communities and benefit from significant community participation.[17] Although informal justice mechanisms play an important role in the lived experiences of refugees, scholars have paid little attention to the administration of justice in refugee camps.[18]

Refugee-led justice mechanisms often fill the voids left by weak implementation of domestic and international laws.[19] However, such mechanisms are sometimes criticised for their failure to adhere to international human rights standards.[20] Narrowly defined due process norms, such as the right to legal representation or principles of gender representation may be used to undermine the legitimacy of local justice initiatives and impose systems that comply with international human rights principles.[21]

 3. Community Justice within Thai Camps for Burmese Refugees

A protracted internal war began within Burma after the state gained independence in 1948.[22] Communist insurgents and ethnopolitical organisations fought against the central authority for decades, and conflicts continue under the current military government.[23] Thailand has received steady flows of Burmese refugees since the first camps were established within the country in the 1980s.[24] Although Thailand has not ratified either the 1951 Refugee Convention or its 1967 Protocol, the government currently allows nine camps to operate for Burmese refugees with assistance from UNHCR and international humanitarian organisations.[25] UNHCR began operating in Thailand in 1998, and although it continues to expand its role within the country, NGOs are the main humanitarian actors within the camps.[26] Due to the protracted nature of the conflicts within Burma, many refugees have spent their entire lives within camps.[27]

Historically, the government of Thailand has engaged very little in the governance of camps, allowing the refugees to handle most matters internally.[28] The government lacks adequate policing and court resources to handle refugees’ legal issues, and refugees have largely preferred handling matters amongst themselves.[29] Camps for ethnically Karen refugees operate with a relatively high degree of autonomy and self-governance, but the system of community-based management is changing due to increasing UNCHR and international involvement in the camps.[30] A shift in the Thai government’s policy has also harmed Karen refugees’ ability to self-govern. The government now embraces a policy of refugee containment in response to cross-border attacks against the camps.[31] Instead of spread out camps, refugees are now mostly contained within fenced areas and rely more heavily on international assistance.[32]

In the camps for Karen refugees, the laws of the Karen National Union govern.[33] The set of rules and regulations drafted by the Karen Elders Advisory Board in the early 1990s and revised in 2011 remains the only codification of law within the Karen camps.[34] The rules and regulations prohibit criminal activities like murder, physical violence, theft, and sexual assault, while also establishing administrative rules relating to hygiene, public participation, and morality.[35] These rules apply to all seven Karen camps, but different dispute resolution mechanisms operate within each camp.[36] For instance, in Mae La camp, a single judge handles all cases and disputes with the assistance of camp leaders, whereas in Mae Ra Ma Luang camp, a panel of five to seven camp committee members appointed by the camp leader handles all cases[37]

Despite differences in form, these mechanisms share many characteristics, including the limited codification of laws, processes led by community leaders rather than specialists, and the guiding principle of consensus and communal harmony.[38] Judges often offer moral guidance to the people involved in disputes, which functions as soft forms of social control.[39] The purpose of dispute resolution is to maintain social order within the camps, rather than the healing or restoration of relationships, as is typical in restorative justice mechanisms.[40] As such, the disposition of many disputes involves a fine or detention in a “jail” constructed of bamboo and fitted with wooden shackles.[41] Upon release from jail, the person expresses his commitment to obey the camp rules by signing a pledge.[42]

4. International Distrust of Refugee-led Justice Mechanisms

According to UNHCR, refugee-led dispute resolution mechanisms hinder the legal protection of refugees, because refugees are more likely to seek a remedy in informal systems than the formal Thai courts.[43] UNHCR contends that refugee-led mechanisms often fall short of international human rights standards and fail to address sexual and gender-based crimes.[44] International humanitarian organisations and donors have become increasingly critical of community-led governance structures, such as the Karen National Union, on the basis that these mechanisms are politicised.[45]

To correct these perceived problems, UNHCR has launched its Administration of Justice Program to establish a basic legal framework for handling serious crimes through Thai courts and less serious crimes through refugee-led justice systems.[46] The Programme also involves training refugees in principles of Thai and international law, and ‘building the capacity’ of community-led mechanisms to better conform to the standards of international human rights law.[47] Similarly, the International Rescue Committee opened numerous legal assistance centres within the camps that seek to strengthen refugee-led justice mechanisms.[48]

These interventions seek to reduce the barriers that refugees face in accessing the Thai justice system,[49] but they also reveal an institutional bias towards Thai and international law.[50]   In an interview, a UNHCR staff member acknowledged that refugee-led mechanisms handled most legal issues, then asserted that ‘such justice was not up to international standards.’[51] When UNHCR writes in reports that ‘refugees in the [Thai] camps do not have access to effective remedies in the law’ and Human Rights Watch asserts that Burmese refugees ‘are at a disadvantage when it comes to finding recourse to justice for the abuses they experience,’ the role of refugee-led justice mechanisms is ignored or marginalised.[52] International actors generally assume that ‘justice’ is delivered through the formal Thai legal system. This assumption fails to consider that refugee-led justice mechanisms are both a response to unequal treatment within the Thai legal system and an expression of preference for justice mechanisms that match refugees’ cultural values.[53]

Yet international actors continue to push for improving access to the Thai justice system, revealing that suspicion of refugee-led initiatives is widespread and persistent.[54]  McConnachie argues that the international lawyers and law students running justice interventions within the camps are the least appropriate people to work with community structures, as these actors look to their own legal system as the benchmark for success.[55] Many Karen refugees have expressed concern over encroaching Thai and international actors and perceive these interventions as attempts to subject the refugees to national and international authorities.[56] For instance, camp leaders have expressed concern that the International Rescue Committee-initiated Legal Assistance Centers hinder their ability to manage social problems within the camps.[57]

UNHCR and humanitarian actors are encouraging refugees to seek justice within the Thai courts and asserting more control over refugee-led justice initiatives within camps, while simultaneously expressing concern that refugees have become too dependent on outside assistance.[58] The narrative of refugee-as-victim fuels these interventions, but then refugees are chided for their dependency. However, the multifaceted dispute resolution systems that have operated within the camps for decades demonstrate the willingness and capability of Burmese refugees to handle their legal affairs. Although the refugee-led justice mechanisms do not always operate in accordance with international human rights standards and often struggle to enforce their own decisions, they are clear manifestations of refugee self-reliance and resilience in trying situations.[59]

Interventions aimed at improving justice mechanisms end up undermining the legal agency of refugee communities. UNCHR and international interventions chip away at community-based mechanisms and feed into the characterisation of refugees as requiring persistent international assistance. Uncritical examinations of humanitarian interventions have failed to notice that the power dynamics within these interventions—which inevitably place UNHCR and international actors at the top of the power pyramid, so to speak—can harm refugee communities.[60]

Conclusion

How politicians, scholars, and others characterize refugees is important. By ignoring the agency of refugees in favour of the tired narrative of refugees as helpless victims, UNHCR and humanitarian organisations become the unquestioned protagonists that protect refugee lives. However, if refugees were recognised as legal, political, and social actors, then we would have to confront how UNHCR and humanitarian organisations can stifle or sideline refugee-driven initiatives in order to appease the political interests of powerful states.

References

[1] Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism (University of Minnesota Press 2000) xiv-xv; see also Barbara Harrell-Bond, ‘The Experience of Refugees as Recipients of Aid,’ in Alastair Ager (ed.) Refugees: Perspectives on the Experience of Forced Migration (Continuum 1999) 147-149.
[2] Barbara Harrell-Bond, ‘Can Humanitarian Work with Refugees be Humane?’ (2002) 24 Human Rights Quarterly.
[3] Kirsten McConnachie, Governing Refugees: Justice, Order and Legal Pluralism (Routledge 2014) 42.
[4] E.g., Carolina Moulin and Peter Nyers, ‘“We Live in a Country of UNHCR” – Refugee Protests and Global Political Society’ (2007) 1 Intl Political Sociology 356-372; McConnachie (n 3) 42.
[5] Anna Purkey, Book Review (2014) Refuge 103-105.
[6] Anna Lise Purkey, ‘Whose Right to What Justice? The Administration of Justice in Refugee Camps’ (2011) 17 New England J of Intl and Comparative L 121, 127.
[7] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS (Refugee Convention).
[8] E.g., Anthony D’Amato, ‘Human Rights as Part of Customary International Law: A Plea for Change of Paradigms’ (2010) Faculty Working Papers: Paper 88 <http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/88&gt;.
[9] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 art 2.
[10] Purkey, ‘Whose Right to What Justice?’ (n 6) 122.
[11] Rosa da Costa, ‘The Administration of Justice in Refugee Camps: A Study of Practice’ (March 2006) UNHCR: Legal and Protection Policy Research Series PPLA/2006/01, 6.
[12] ibid.
[13] Ralph Wilde, ‘Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of “Development” Refugee Camps Should be Subject to International Human Rights Law’ (1998) 1 Yale Human Rights and Development L J 107, 107.
[14] Purkey, ‘Whose Right to What Justice?’ (n 6) 126.
[15] ibid 128.
[16] ibid 128.
[17] ibid 128.
[18] Da Costa (n 11) 2.
[19] ibid 6; Purkey (n 6) 129.
[20] Da Costa (n 11) 6.
[21] McConnachie (n 3) 236-237; Phil Clark, Justice Without Lawyers: Peace, Justice and Reconciliation in Rwanda (CUP 2010) 132-68.
[22] Hazel J. Lang, Fear and Sanctuary: Burmese Refugees in Thailand (Cornell Southeast Asia Program, 2002) 11.
[23] ibid.
[24] ibid.
[25] UNHCR, ‘2015 UNHCR Country Operations Profile – Thailand’ <http://www.unhcr.org/pages/49e489646.html&gt; accessed 28 April 2015.
[26] Elisabeth Olivius, ‘(Un)Governable Subjects: The Limits of Refugee Participation in the Promotion of Gender Equality in Humanitarian Aid’ (2013) J of Refugee Studies 42, 52.[27] Burma Link, ‘Background: Refugee Camps’ < http://www.burmalink.org/background/thailand-burma-border/displaced-in-thailand/refugee-camps/&gt; accessed 28 April 2015; see also UNHCR, ‘2015 UNHCR Country Operations Profile – Thailand’ <http://www.unhcr.org/pages/49e489646.html&gt; accessed 28 April 2015.
[28] Joel Harding et al, ‘Access to Justice and the Rule of Law’ (2008) Forced Migration Review: Burma’s Displaced People 28-30; McConnachie (n 3) 214-215.
[29] Harding (n 28) 28-30.
[30] Olivius (n 26) 53.
[31] Sally Thompson, ‘Community-based Camp Management’ (2008) Forced Migration Review: Burma’s Displaced People 26.
[32] ibid.
[33] Da Costa (n 11) 24.
[34] Karen Refugee Committee, ‘Code of Conduct and Disciplinary Procedure’ (7 October 2011) < http://www.pseataskforce.org/uploads/tools/1351628020.pdf&gt; accessed 21 April 2015; McConnachie (n 3) 220-221.
[35] Karen Refugee Committee (n 36).
[36] McConnachie (n 3) 220-221.
[37] ibid 222.
[38] ibid 224.
[39] ibid 225.
[40] ibid 226.
[41] ibid .
[42] ibid.
[43] UNHCR, ‘Analysis of Gaps in Refugee Protection Capacity, Thailand’ (November 2006) 35.
[44] ibid 36.
[45] Olivius (n 26) 53.
[46] UNHCR, ‘Analysis of Gaps in Refugee Protection Capacity, Thailand’ 35.
[47] ibid.
[48] International Rescue Committee, ‘IRC: International Rescue Committee – Thailand’ <http://microjusticeworkplace.net/partners/international-rescue-committee-thailand/&gt; accessed 24 April 2015; IRIN News, ‘Myanmar-Thailand: Bringing the Law to Burmese Refugee Camps (23 April 2009). <http://www.irinnews.org/report/84057/myanmar-thailand-bringing-the-law-to-burmese-refugee-camps&gt; accessed 24 April 2015.
[49] IRIN News (n 50).
[50] McConnachie (n 3) 242.
[51] IRIN News (n 50).
[52] Human Rights Watch, ‘Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers’ (2012) 54.
[53] ibid
[54] ibid.
[55] ibid.
[56] ibid 242.
[57] Human Rights Watch, ‘Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers’ (2012) 55; UNHCR, ‘Analysis of Gaps in Refugee Protection Capacity, Thailand’ 35.
[58] E.g., Kirsten McConnachie, ‘Rethinking the “Refugee Warrior”: The Karen National Union and Refugee Protection on the Thai-Burma Border’ (2010) J of Human Rights Practice 30, 35.
[59] McConnachie (n 3).
[60] Anna Purkey, Book Review (2014) Refuge 103-105.

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