Executive Summary

Background

During the course of more than six decades of armed conflict in southeast Myanmar, hundreds of thousands of people have been displaced. The precise number of currently Internally Displaced Persons (IDPs) in the region is unknown. While relatively few civilians (perhaps just over 10,000)1 have been displaced by armed conflict since the emergence of the peace process in 2011, several hundreds of thousands remain displaced, and have yet to find a ‘durable solution’ to their plight. Furthermore, in Thailand there are some 120,000 refugees from southeast Myanmar living in temporary shelters, plus another 2-3 million migrant workers, many of whom are acutely vulnerable and left their homeland for similar reasons to the refugees.

Forced migrants in and from Myanmar demonstrate significant resilience, and often high levels of social and political capital. Nevertheless, refugees and IDPs have been among the principal victims of armed conflict in their homeland. Communities have suffered greatly, with many people dispossessed and traumatised. To some degree, the overall success of the peace process can be measured by the extent to which the country’s most acutely affected populations are able to achieve durable solutions. At the same time, durable solutions for forced migrants will depend on sustainable improvements in the political and security environment and an end to armed conflict, and thus are tied inextricably to the peace process.

Since late 2011, most of the 17 major Ethnic Armed Groups (EAGs) in Myanmar have agreed (or renegotiated) ceasefires with the government. Negotiations are ongoing toward the implementation of a joint Nationwide Ceasefire Agreement (NCA), but have slowed significantly since mid-2014. It is possible that such negotiations will stall almost entirely until after the post-2015 elections, when a new government may even re-frame the process. It remains to be seen whether and how a political settlement can be achieved, addressing the underlying grievances and aspirations of ethnic nationality communities, while at the same time being acceptable to the Myanmar government and army. Furthermore, three years of intense fighting in northern Myanmar and recent bursts of armed conflict in the southeast raise serious questions about the credibility of the peace process. Nevertheless, ceasefires in southeast Myanmar have resulted in major improvements in living conditions for many conflict-affected communities.

This report was commissioned by UNHCR to explore how refugee and IDP issues are featuring in the peace process, and what recent developments might mean for forced migrants’ future prospects. The focus is primarily on southeast Myanmar, and armed conflict- induced displacement, with less emphasis on development-induced and other forms of forced migration.

Forced migration and the peace process

While the peace process represents a significant opportunity to rehabilitate conflict-affected communities and work towards durable solutions for refugees and IDPs, the mere existence of ceasefires and associated political negotiations does not in itself constitute an end to humanitarian crises in southeast Myanmar, or sufficient grounds to promote IDP return and/or refugee repatriation. UNHCR’s ‘Strategic Roadmap for Voluntary Repatriation’ recognises that the key factors triggering more proactive engagement with refugee and IDP return and resettlement are fundamentally political in nature, and dependent on progress in the peace process. It should not be assumed that challenges in southeast Myanmar are now concerned primarily with economic development, rather than humanitarian concerns. Southeast Myanmar will remain a site of acute humanitarian vulnerability for some time to come.

Following decades of armed conflict, the situation of IDPs in southeast Myanmar is highly complex. Many individuals and communities have moved dozens of times. In this context, it is often difficult to know what constitutes ‘home’ for displaced people. Some will wish to return to a previous settlement, while others will prefer to seek greater human security in the present location (local integration), or resettle in a new location (including newly established ‘resettlement villages’ or ‘pilot project’ sites). For most forced migrants, movements over the coming years are unlikely to constitute definitive decisions to rebuild lives in a particular location, but will more likely involve trial and error, in many cases dividing family members to maximise the benefits and spread the risks inherent in different options.

Understanding the varied situations faced by forced migrants is crucial to envisioning what durable solutions might look like. This report distinguishes eight main types of forced migrant, ranging from those in refugee camps to those in various ceasefire areas under the control of EAGs, and those in government-controlled relocation sites. Thousands of IDPs and smaller numbers of refugees have returned to their places of origin, but it is not clear how permanent these moves are, and if they represent durable (in the sense of lasting) solutions. The factors influencing forced migrants’ decisions (to stay, return or resettle) include: 1) physical security; 2) prospects for stable livelihoods, including access to land; 3) access to services and amenities; 4) perceptions of, and confidence in, the peace process; and 5) influences from various political actors and authorities.

The primary obstacles to durable solutions relate to the continued presence and conduct of military actors (particularly state, but also non-state actors) often stationed close to civilian settlements, and particularly in areas from which people have fled. This has meant that ceasefires remain fragile, and – despite significant improvements – human rights abuses and exploitative practices persist. Solutions are also hindered by widespread landmine contamination throughout southeast Myanmar, and secondary settlement (displaced persons’ land being occupied by other vulnerable groups). Myanmar army (Tatmadaw) occupation of previously civilian-owned land, and government control over areas previously held by EAGs, further complicate matters. A commitment from the government to reduce military expansion in ceasefire areas would demonstrate a significant break from the past and boost confidence among IDPs, as would a firm commitment to establishing military codes of conduct, both through the NCA and at bilateral level. Such provisions should allow for the beginning of landmine demarcation, and eventual de-mining, further building trust on the part of forced migrants, and enabling people to consider returning to previous settlements.

A key factor in forced migrants’ decisions about the future is access to appropriate livelihoods, and particularly land. Widespread land-grabbing, which has grown as ceasefire areas become more accessible to private actors, presents a risk to the credibility of the peace process. Forced migrants should be able to gain access to land through restitution of previous landholdings, including those confiscated by well-connected (‘crony’) companies, or through compensation and land allocation. These issues should be urgently addressed in political negotiations. Given the slow pace of peace talks, these arrangements could be ‘fast tracked’ in parallel to NCA negotiations, and would not have to wait for implementation of a final settlement to the peace process. Many IDPs, including those who have been in hiding or previously forced to reside in government-controlled ‘relocation sites’, have already started to return to their previous villages; however, for the landless (including those whose land has been confiscated) their options are limited.

Ultimately, finding durable solutions to forced migration in Myanmar will depend on the resolution of armed and political conflicts. As is well known, there are rarely humanitarian solutions to political problems. It is only through negotiations between the Myanmar government and army (Tatmadaw) and EAGs, that a political and security framework can be established to achieve durable solutions for refugees and IDPs. UNHCR and other international organisations should ensure that their interventions are complementary to the peace process, and at the very least ‘do no harm’ by framing interventions in accordance with the evolving political dynamic.

That being said, key stakeholders (e.g. Myanmar government and Tatmadaw, and EAGs) do not unproblematically represent the interests and identities of forced migrants. Therefore, national and international organisations seeking to help forced migrants in and from Myanmar should be guided primarily by consultations with IDP, refugee and host communities, and encourage key peace process actors to do so also. Overall, forced migrants have received little information about the status of the peace process or other elements of Myanmar’s ongoing transition that impact their futures. There is a need for the peace process to be deepened, by eliciting more comprehensive involvement from displaced people themselves. This is particularly important given the significant social and political capital which exists within IDP and refugee communities, and the local organisations which for many decades have been working to support them and advocate on their behalf. Attempts at finding durable solutions for forced migrants should be undertaken in close partnership with Community-Based Organisations (CBOs) and other community leaders.

NCA negotiations have addressed refugee and IDP issues only in general terms. It is important that parties to the conflict and peace process commit to consulting with, and supporting the agency of, forced migrants, in accordance with international humanitarian and human rights law, and best practice. While such a commitment could usefully be included in the NCA, it is understood that parties to the peace process want to keep this document as simple as possible, and not get side-tracked by complex legal and technical discussions.

To some extent, bilateral negotiations may provide a more suitable forum for dealing with issues directly related to forced migration, as they can be more sensitive to local dynamics, and depend on trust at the local level. In parallel to peace talks between the government and both the Karen National Union (KNU) and Karenni National Progressive Party (KNPP), a number of ‘pilot projects’ have been initiated to support the return and/or resettlement of IDPs, which could provide key lessons moving forward.

While all return and resettlement must take place voluntarily and at the discretion of the individual, the reality is that vast numbers of IDPs and refugees will need support from relevant authorities, and in some cases will depend on highly organised programmes. Key stakeholders within the government and EAGs are of the view that initial efforts should focus on the rehabilitation of IDP communities, before serious consideration of organised refugee return. This makes it even more critical that refugees are not unduly compelled to leave the refugee camps as a result of pressure from the Thai authorities, which has become a significant concern since early 2014,2 or as a result of cuts in donor funding.

Peace talks will also need to address a range of broader issues, including managing and reducing high levels of militarisation (and associated abuse and exploitation), particularly on the part of state armed forces in ethnic nationality-populated areas; land rights management, and dispute resolution; economic activity in newly accessible, previously conflict-affected areas (particularly in the extractive industries); and negotiating the roles of EAGs in governance and social service provision. Such issues have been addressed to varying degrees in NCA drafts as ‘interim arrangements’ that would be put in place during the period of political dialogue, until more regular future systems are negotiated. However, due to outstanding disagreements in this area, it is likely that many of these issues will continue to be governed through ad hoc local arrangements, for the time being. Progress in these areas will depend on concerted negotiations during or alongside multi-stakeholder political dialogue, which those involved in the peace process still hope can be achieved.

Prospects for durable solutions are intimately connected to those for a sustainable end to conflict. In turn, such an achievement will depend not just on successful negotiations at the table, but more systemically on a transformation of the security, political and economic environment. While international engagements in southeast Myanmar have the potential to contribute to such processes, they will be contingent primarily on local actors and local dynamics. Ongoing research into these issues will be necessary, in order to ensure that the international community is making a positive contribution to the emergence of durable solutions, and more broadly to the peace process in general.

Recommendations

•   Durable solutions to forced migration in Myanmar will ultimately depend on a comprehensive end to conflict, a normalisation of state-society relations, and the emergence of a legitimate and functioning state. Without a negotiated political settlement, the prospects for sustainably ending displacement crises are low.
•   While ceasefires have brought significant improvements to the security and human rights situation, communities continue to express concerns regarding the sustainability of existing ceasefires, and face continued threats due to militarisation and exploitative commercial activity. Efforts must be made to consolidate existing ceasefires, and guarantee the safety of all civilians. Clear codes of conduct for armed actors, and monitoring mechanisms, should be established. 
•   All return and resettlement must be voluntary, respecting the dignity of individuals in accordance with international law. While some refugees and IDPs may choose to repatriate or resettle ‘spontaneously’, many will require support from relevant political authorities and mandated agencies. All stakeholders should aim to facilitate the emergence of a ‘protected space’ in the Thailand-Myanmar borderlands, in order to encourage trust in the peace process and prospects for repatriation on the part of the refugee population.

•   The principal parties to the peace process (government and EAGs) should commit to regular consultation with IDPs and refugees, and to respecting their rights under Myanmar and international law. They should enshrine such commitments in the Nationwide Ceasefire Accord, and/or any other political and security agreements. Refugee and IDP issues should also be taken into consideration when negotiating military codes of conduct.
•   Relevant EAGs should be included in discussions about the future of refugees and IDPs, in addition to the governments of Thailand and Myanmar, and UNHCR.
•   Durable solutions for forced migrants should be context specific. Some arrangements require bilateral discussion between individual EAGs and the government. Involvement of both parties is crucial, not just due to overlapping administrative and security apparatuses, but more broadly to ensure that activities are sequenced with the peace process, and do not unreasonably promote the agendas of specific parties. It is critical that the return or resettlement of vulnerable populations is undertaken in a conflict- sensitive manner, in discussion with local stakeholders.
•   The rights of refugees and IDPs to return to previously settled land should be addressed in the NCA and other multilateral and bilateral agreements. Restitution of and/or compensation for land and assets misappropriated from refugees and IDPs, including issues of ‘secondary settlement,’ should be addressed in any forthcoming political dialogue. Myanmar’s inequitable land laws (particularly the 2012 legislation) should be revised as a matter of urgency, and perhaps suspended in conflict-affected areas.
•   Political negotiations should address how civilians can be guaranteed immunity from punishment or harassment for suspected connections with EAGs, particularly those who are returning or resettling after periods of displacement in areas under the authority of EAGs, or from refugee camps.
•   Regarding durable solutions for forced migrants in Thailand, the particular circumstances and needs of out-of-camp refugees should be taken into account, including Shan and others who left Myanmar for reasons related to conflict and/or persecution. Many or out-of-camp refugees have the same needs and aspirations for ‘organised repatriation’ as those in the refugee camps.
•   International aid actors should ensure a continued focus on the humanitarian (protection and assistance) needs of IDPs and other forced migrants in southeast Myanmar, while acknowledging also the needs for economic development and jobs in transitional/post- conflict environments.

•   International support should continue to aid networks with head offices in Thailand (including those linked to EAGs), which retain a crucial role in providing assistance and protection to some of the most vulnerable populations in southeast Myanmar. Where access is possible from ‘inside Myanmar’, and is not perceived by conflict- affected communities or other key stakeholders as threatening, this option can often be more practical and ultimately sustainable.
•   In carrying out assessments, partnerships should be utilised to maximise the relative strengths of CBOs and international actors, whilst minimising potential bias. The former possess strong local knowledge and networks; the latter may bring technical competence and a degree of political impartiality.