Tilburg University Human rights in translation Griek, I. Publication date: 2014 Document Version Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal Citation for published version (APA): Griek, I. (2014). Human rights in translation: Dispute resolution in the Bhutanese refugee camps in Nepal . Wolf Legal Publishers (WLP). 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Download date: 25. sep. 2021 Human Rights in Translation Dispute resolution in the Bhutanese refugee camps in Nepal Ilse Griek Human Rights in Translation Dispute resolution in the Bhutanese refugee camps in Nepal Ilse Griek ISBN: 9789090282961 Cover Image: Food aid delivery in Beldangi-2 refugee camp, Nepal. © Ilse Griek Production: aolf Legal Publishers (WLP) PO Box 313 5060 AH Oisterwijk The Netherlands E-Mail: [email protected] www.wolfpublishers.com All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the author. © Ilse Griek Human Rights in Translation Dispute resolution in the Bhutanese refugee camps in Nepal Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof. dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op woensdag 18 juni 2014 om 10:15 uur door Ilse Griek, geboren op 9 september 1980 te Heerenveen Promotores: Prof. Dr. W. M. van Genugten Prof. Dr. B. M. Oomen Commissieleden: Prof. dr. em. K. von Benda-Beckmann Prof. dr. J. E. Goldschmidt Prof. dr. E. M. H. Hirsch Ballin Prof. dr. M. Hutt This research for this dissertation was financially supported by the Netherlands Organisation for Scientific Research (NWO) Table of Contents Acknowledgements 1 Table of Figures 5 List of Abbreviations 7 Chapter I: Introduction 11 Transnational communities, transnationalised law? 12 Refugee protection and UNHCR’s evolving mandate 15 Protractedness: A humanitarian imperative for understanding law in camps 19 The administration of justice in refugee camps 22 Structure of this book 26 Chapter II: Legal Pluralism in Humanitarian Settings 29 II.1 Delimiting law in a refugee camp 30 State law 31 Customary norms and local law 32 International human rights law 33 ‘Project law’ 34 II.2 Project law in humanitarian settings 37 Aid workers as street-level bureaucrats 38 II.3 Theoretical challenges: Capturing transnationalism in law 40 The transnational semi-autonomous social Field (TSASF) 41 Power and politics in law 44 II.4 Methodological approach 47 An ethnographic study of law 48 Measuring access to justice 54 II.5 Conclusion 60 Chapter III: Mapping Transnational Humanitarian Space 61 III.1 Conflict in the Dragon Kingdom: Mythico-histories 61 History: Disputed and contested 63 Seeds of conflict 67 Dissent and flight 69 New outlooks, new attitude to history? 72 III.2 Bamboo, mud, plastic, and thatch: The building blocks of humanitarian space 75 Refugee camps: Looking in 76 Ordering humanitarian space 78 Reordering space 81 III.3 Service provision in the camps 84 Infrastructure, food, and water 85 Physical and mental health 87 Education and vocational training 88 Refugee participation 90 III.4 The camp economy 93 III.5 Re-establishing community in exile 98 ‘We Nepalis’ or ‘We Bhutanese’? 100 Refugees, kin, family, and samaaj 104 Collaboration across spatial and kinship lines 107 III.6 Human rights in the camps: A politicised landscape 109 Bhutanese human rights organisations 110 Fragmentation in the political struggle for democracy 111 Implications for local understandings of human rights 113 III.7 Conclusion 115 Chapter IV: Snakes and Ladders: Where legal systems intertwine 117 IV.1 Contours of the camp mediation system 118 Historical antecedents: Dispute resolution in southern Bhutan 118 The Bhutanese refugee legal system 122 Bringing a case: Process and procedure 124 Understanding mediation in the camp context 128 A role for society: The pancha samaaj 131 IV.2 The Nepalese legal system: Institutions and roles 134 Refugee Coordination Unit 135 Armed Police Force 136 Nepal Police 139 Nepalese courts 142 Other (quasi-judicial) institutions 143 IV.3 Support for access to justice 145 Reforming camp dispute resolution practices? 146 IV.4 Navigating legal structures 149 A theft and a basket 150 The case of the stolen sugar 152 Syringes in Beldangi-2 154 IV.5 Whither the twain shall meet? 156 Nepalese law enforcement as extension of the mediation system 156 Personal relationships: Where public and private roles collide 159 Whose jurisdiction? ‘Simple’ versus ‘serious’ cases 162 IV.6 Conclusion 164 Chapter V: Resolving Domestic Violence Disputes 167 V.1 Domestic violence in the Bhutanese refugee camps 167 Cultural attitudes 170 Ijjat 171 V.2 Nepalese law: Domestic violence as crime 174 Obstacles to enforcing the Domestic Violence Act in Nepal 176 V.3 Project law: SGBV and domestic violence 177 Domestic violence in SGBV policies 178 UNHCR’s Standard Operating Procedures on SGBV in Nepal 179 Enlisting NGOs and CBOs 183 V.4 Inside the Counselling Board: ‘Courtroom’ views of a domestic violence case 186 Part one: The CWT makes an initial assessment of the case 186 Part two: The Counselling Board identifies the problem 189 Part three: An apology, a promise 192 A cross-section of attitudes to domestic violence 194 V.5 Three women, three legal paths 196 Gita keeps it in the sub-sector 196 Indira gets divorced 198 Arpana’s encounter with the DV Act 201 V.6 Shopping for justice 204 Divorce as justice? 208 What role for project law? 211 V.7 Conclusion 215 Chapter VI: To Divorce, or not to Divorce? Resettlement and the shift in family conflicts 217 VI.1 Third country resettlement: A new influence on Bhutanese lives 221 Violence and order 226 The creation of a ‘resettlement wish’ 229 Re-orientation of service provision and assistance 230 Brain drain: Impacts on skills and service provision in the camps 230 Transnational contacts: Mediascapes 232 Shifting demographic constellations 233 VI.2 Legally plural bearings on refugee marriages 234 Resettlement project law 235 The US Refugee Admissions Program 237 VI.3 Polygamous marriages and resettlement 239 Polygamy and the law 241 A third wife from the bange 245 VI.4 Minor marriages and resettlement 248 Minor marriage and the law 250 A ‘modern’ minor marriage 253 VI.5 Reframing family disputes: ‘Naming, blaming, claiming’ 256 VI.6 Divorce and the break-up of refugee families 259 Divorce as abandonment 262 VI.7 Explaining the impact on refugee families: Power shifts in the TSASF 264 Power, transparency and information 267 Searching for legal certainty 269 VI.8 Conclusion 271 Chapter VII: Conclusion 273 Transnational semi-autonomous social fields 274 Humanitarian agencies: Sources and proponents of law 275 A dual process of translation: From international law to street-level bureaucrats 277 A dual process of translation: Local law transnationalised 279 Unanticipated impacts of rights-based programming 281 Human rights: Partially implemented, partially understood, partially localised 282 From localising rights to access to justice? 284 References 287 Curriculum Vitae 305 Acknowledgements I still recall with vivid intensity the first day I visited Beldangi-1 refugee camp in early 2010. I went in with a notebook and came out with new stories, new ideas, and a baby rabbit I bought from an elderly man who sold them in the camps for 150 Nepalese Rupees (approximately 1 Euro) each. For fourteen months, the Bhutanese refugee camps and Damak – the humanitarian hub beside it – were my home, and for a long time after leaving Nepal I missed waking up to the sound of roosters crowing and the bustling onset of dawn in Damak. The sounds, smells, and sensations of the Terai are still with me today. The PhD is often described as a lonely road, but it is also a huge collaborative effort. This project was only possible because of the countless people who contributed to and helped realise it – and to them I owe thanks. Had it not been for Joris Voorhoeve and Cindy Horst, whose support and encouragement gave me the means and the confidence to visit my first refugee camps – Kakuma and Dadaab, Kenya – in 2006, I may never have taken the first steps to conducting field research on the administration of justice in refugee settings. Barbara Oomen and Willem van Genugten invited me onboard this project even before they knew whether the funding request would be approved. As my PhD supervisors (promotores), they gave me the freedom to shape and reshape my thoughts over the years and to make this book my own, while remaining ever critical, vigilant, and ready to challenge me on my ideas and interpretations. The Oñati International Institute of the Sociology of Law, its staff, and its students showed me great hospitality and opened my eyes to wealth of legal anthropological research. Maurits Barendrecht and the Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution (TISCO) (under the umbrella of the Measuring Access to Justice (MA2J) project) provided valuable assistance and funded part of my field research.