INTRODUCTION AND RESEARCH CONTEXT
Introduction
This paper draws on ethnographic research to show how legal orders emerge and function in extraterritorial spaces, and how legal pluralism dissolves during the processing of conflict cases. The theoretical implication is that we should not assume that refugee camps and other extraterritorial spaces exist in a “legal limbo” or are characterized by the “absence of law”; rather, they should be seen as autonomous spaces defined by local law. This law is produced through various mechanisms such as active noninterference by states, reciprocal preservation of local autonomy, jurisdiction based on negotiations between conflicting parties, and much more, which I will discuss in this article. Another implication is that we should question the sustainability and stability of a “legal pluralism” in these spaces over time.
Scholars in the field of sociology and anthropology of law identify pluralistic legal systems and recognize the importance of “living law”—which is not necessarily regulated by legal state principles (Reference BermanBerman, 2020a; Reference EhrlichEhrlich, 1936; Reference GriffithsGriffiths, 2017). From this point of view, it may therefore come as a surprise that refugee camps are repeatedly characterized as spaces of legal limbo or state of exceptions where law is suspended (Reference AgierAgier, 2011, p. 82; Reference Hanafi and LongHanafi & Long, 2010; Reference Verdirame and Harrell-BondVerdirame & Harrell-Bond, 2005, p. 334; Reference AgambenAgamben, 2002, p. 179). But how do the authors come to this conclusion and how can the legal situation in refugee camps be described? The aim of the article is to answer these questions and to show based on ethnographic research how legal orders are established and operate on the ground in an area where the state does not act as the main intermediary for law. I argue that refugee camps should be viewed as an extraterritorial space with a legal autonomy creating a dominating local camp law that is surrounded by legal pluralism.
The “legal limbo” argument falls too short because it looks at camps exclusively from a state law and international law perspective. Besides that, scholars argue that an exception is an ideal type, the suspension of regular law or a space without law does not exist anymore because “many of the mechanisms and justifications we find there are continuous and consonant with a range of regular law and daily disciplinary state practices, in particular, the domains of immigration and domestic incarcerations—the difference being one more of degree than kind” (Reference HussainHussain, 2007, p. 735). For the case of refugee camps, however, further reasons are added on why this is not a space without law. Research studies show that refugee camps are spaces of legal pluralism. What we find in those exterritorial spaces is a conglomerate of legal systems that shapes the legal situation. These include legal orders of the (1) international law and global governance, (2) receiving state, and (3) the regions of origin. (4) But most importantly, there is, what I call, a characteristic local camp law, which is only partly co-designed and co-created by the three previously mentioned legal orders.
The findings are based on more than one and a half years of ethnographic research between 2011 and 2018 in refugee camps of the Burmese-Thai borderlands. These sites are particularly suitable for identifying characteristics of legal systems in refugee camps since neither international nor state law formally applies. However, the law of global governance is applied by international organizations, since they are present in the camps providing humanitarian assistance. The ethnographic analyses show that the discursively present legal pluralism dissolves during the processing of conflict cases. Resolution and case proceeding primarily occur through joint negotiations between conflict parties as well as via camp authorities and local camp law practices. In addition, the distinction between written and oral (lived) law is central to understanding the legal system in refugee-camp contexts. Imported but modified pre-camp structuresFootnote 1 and other social camp-specific mechanisms that are related to the camp context make a decisive contribution to the maintenance of law and order of the camp. Still, the legal landscape in which the camp is embedded impacts the legal situation and the local practices.
The article begins with (1) discussing literature on refugee camps and their specific legal situation. Following on, I outline perspectives from studies in legal sociology and anthropology on legal pluralism. Then, a brief presentation of the methodical and methodological underpinnings of the ethnographic legal study is given as well as a description of the political context of the specific case of Burmese refugee camps in Thailand. (2) The bulk of the article discusses distinct mechanisms through which local camp law is produced. These include for example the active noninterference by the host country, the regular communication and primacy of camp rules, the reciprocal preservation of local autonomy, negotiations between conflicting parties, the camp public and materiality. (3) Finally, I discuss theoretical implications of my findings and the question whether the discursive legal pluralism present in the field really dissolves in practical legal proceedings. Moreover, I highlight the relevance of legal structures from the residents' region of origin and their entanglement with local camp law.
The refugee camp context: Temporariness and legal plurality
From the perspective of receiving states and the international community, refugee camps are deemed temporary—and, in any case, impermanent (Reference TurnerTurner, 2010; Reference AgierAgier, 2002, p. 323). This impermanence is an intrinsic character of refugee status and refugee camps but is related to the national order of things (Reference MalkkiMalkki, 1995; Reference SogukSoguk, 1999). Even though people live in refugee camps for decades, it does not remain politically and structurally permanent (Reference BochmannBochmann, 2021; Reference JansenJansen, 2009). This also has an impact on the legal system of camps and explains to some extent why camp spaces, especially those located peripherally, are not systematically integrated by the host legal system. The state assumes that people will soon return to their home region and that the problems within this space are to be dealt with in the camp bubble (Reference BochmannBochmann, 2021, p. xii). Camps therefore are not only considered to be spaces of legal pluralism but are also extraterritorial legal spaces with outsourced legal affiliations and quasi-autonomous jurisdictions.
More than 100 states worldwide have ratified the Convention on the Status of Refugees of 1951 and the Protocol of 1967, upon which United Nations organizationsFootnote 2 were founded to mainly protect rights. The Convention states: “A refugee shall have free access to the courts of law on the territory of all contracting states” (Article 16, 1). Thus, from an international law perspective, it is the formal responsibility of the receiving state to ensure that refugees get access to the legal system of the state. Practically, however, there are some limitations. First, for example, the international Convention scarcely considers the fact that refugee situations such as refugee camps are often located in peripheral border regions, in which state law is regulated and implemented only sporadically. Even if the receiving state is willing to implement the state legal system in camps, the necessary infrastructure for the enforcement and maintenance of that system would have to be created or integrated into the existing legal system on-site in the first place (Reference JanmyrJanmyr, 2013, p. 345ff). Access to and knowledge of the legal system must be created among the receiving population. Secondly, not all legal systems in the world are primarily shaped by state law (Reference GriffithsGriffiths, 2017; Reference BermanBerman, 2020b, p. 2). In other words, the affected countries are not only unwilling but also partly unable to fulfill this obligation (Reference HolzerHolzer, 2012, Reference Holzer2015, p. 165ff.; Reference JanmyrJanmyr, 2013, p. 345ff.; Reference SagySagy, 2009, p. 121). Added to this, in Asia most states have not even ratified the two refugee treaties. Thus, from an international law perspective, Article 16, 1 cannot simply be applied (Reference DaviesDavies, 2007, p. 23fff.).Footnote 3 To sum it up, due to the often-limited relevance of the state legal system, a legal enclave with relative autonomy is produced that goes beyond state jurisdiction.
In addition to the Convention, there are other international treaties—such as the Universal Declaration of Human Rights of 1948, with its corresponding conventions—that regulate human rights more specifically. Humanitarian organizations use these treaties and conventions to legitimize their presence (Reference JanmyrJanmyr, 2016, p. 413; Reference Hilhorst and JansenHilhorst & Jansen, 2012, p. 892) and create an infrastructure forming the so-called human rights regime (Reference AgierAgier, 2011). International organization are importers of international legal norms and have taken on governance responsibility in camps (Reference JanmyrJanmyr, 2016, p. 415). Scholars argue that camps are managed by a “humanitarian government” (Reference AgierAgier, 2011) with state like administration and governance functions (Reference Verdirame and Harrell-BondVerdirame & Harrell-Bond, 2005, p. 186). Camps are considered to be “sites of neo-colonial power relations” (Reference HyndmanHyndman, 2001, p. 263). But human rights are also understood as a semi-autonomous field where multiple normative frameworks interact (Reference Hilhorst and JansenHilhorst & Jansen, 2012, p. 902). The presence of multiple orders creates tensions, with much room for maneuver in practice (Reference Hilhorst and JansenHilhorst & Jansen, 2012, p. 892).
Some studies discuss legal aspects referring to Agamben and his idea of camps as spaces of exception and of biopolitics, where “the normal law is suspended” (Reference TurnerTurner, 2010, p. 313). But many studies published more recently refer to the presence of pluralistic legal practices, discourses, and institutions on-site (Reference Costada Costa, 2006; Reference HolzerHolzer, 2013, p. 838; Reference VeroffVeroff, 2010, p. 72; Reference SagySagy, 2009, p. 191). This is evident, for example, in analyses of the legal procedures regarding disputes in refugee camps in Ghana (Reference HolzerHolzer, 2013; Reference SagySagy, 2009), the administration of justice in a refugee camp in Zambia (Reference VeroffVeroff, 2010), but also in contestation over the authority of the legal system(s) in Burmese refugee camps in Thailand (Reference McConnachieMcConnachie, 2014, pp. 103–131). It is not surprising that these legal systems differ depending on the regional context and different legal orders dominate in practice.
In camps in Burkina Faso, for example, the national law is more present than in other refugee camp contexts but are still applied in a very flexible and circumstantial way (Reference BardelliBardelli, 2015, p. 41, 46). The application of the national law cannot be analyzed inseparable from other normative systems and the broader camp and refugee context, in which they are enacted (Reference BardelliBardelli, 2015, p. 63). In Meheba's refugee settlements, the relevance of the courts of the receiving state for camp residents is also more important (Reference VeroffVeroff, 2010, p. 72) than for example in Liberian refugee camps (Reference SagySagy, 2009, p. 121). In the case of the Zaatari camp in Jordan, it was shown how refugees themselves developed avenues to pursue civil or criminal claims providing legal empowerment (Reference Riach and JamesRiach & James, 2016). There, a complex array of “customary legal mechanisms” were identified and a collection of “customary quasi-legal actors” that emerge mostly separate from Jordan's judiciary (Reference Riach and JamesRiach & James, 2016, p. 559). The authors frame these alternatives as an adequate response to the needs of Syrians but also as an opportunity where international human rights are incorporated (Reference Riach and JamesRiach & James, 2016, p. 560). A study on early marriage in Zaatari shows that even though early marriage is still very common, the norm becomes permeable in character because of the norms advocated by international organizations to change the situation (Reference VelascoVelasco, 2019, p. 57). But studies also show, as mentioned earlier, how different aid organizations have different guidelines (Reference Nakueira, Foblets and LeboeufNakueira, 2020, p. 252). Thus, the interpretation and realization of human rights and other international norms depends on social negotiations between aid workers and recipients (Reference Hilhorst and JansenHilhorst & Jansen, 2012, p. 900). Beyond that, not only international organizations but refugees themselves play a major role as bearers of the international legal system (Reference HolzerHolzer, 2012, Reference Holzer2013; Reference Riach and JamesRiach & James, 2016). Thus, studies on refugee camps show the interconnections between different legal systems, which leads to the conclusion that refugee camps are framed as spaces of legal pluralism. However, at the same time, most of these studies (also the ones, in which state jurisdiction is more present) point to the dominance of locally generated legal systems that are established by camp residents themselves. They reveal a tendency for camp residents to solve “serious” legal cases within the family (Reference VeroffVeroff, 2010, p. 89) or to use legal institutions established by camp residents themselves (Reference Riach and JamesRiach & James, 2016; Reference SagySagy, 2009, p. 121). Autonomous camp legal systems are produced that are limited to camp territory and its residents. This often seems to be both the interest of the receiving state but also of camp residents themselves (Reference GriekGriek, 2006; Reference JanmyrJanmyr, 2013; Reference McConnachieMcConnachie, 2012, p. 103; Reference Riach and JamesRiach & James, 2016; Reference SagySagy, 2009, p. 49; Reference VelascoVelasco, 2019). Many of these studies that deal with legal orders in the context of refugee camps refer to the findings of the sociology and anthropology of law and legal pluralism (Reference McConnachie, Creutzfeldt, Mason and McConnachieMcConnachie, 2020, p. 194). In the following I will briefly present the most important results of these discourses that are relevant to understand my argumentation and findings.
Legal sociology and anthropology: The universal pluralism of law and the social
From law studies, we know that the absence of state law does not lead to the absence of legitimate orders of authority and of rule-making practices (Reference EhrlichEhrlich, 1936; Reference GluckmannGluckmann, 1965; Reference MalinowskiMalinowski, 1926/1989). The coexistence and practice of different legal systems and forms have been identified and studied in many regions of the world (Reference BermanBerman, 2020a; Reference Zenker and HoehneZenker & Hoehne, 2019). The diversity of legal systems has been understood as legal pluralism “when in a social field more than one source of ‘law’, more than one ‘legal order’ is observable” (Reference GriffithsGriffiths, 1986, p. 38). Legal pluralism allows to conceptualize and focus on the complex interactions, dynamics, and interconnections of different legal systems (Reference BermanBerman, 2020b, p. 2; Reference MerryMerry, 1988, Reference Merry1992, p. 358, Reference Merry2016; Reference TamanahaTamanaha, 2008).
The extent to which law or legal norms must relate to statehood and to which they must be distinguished from social norms has been addressed in different ways (Reference DurkheimDurkheim, 1976, pp. 106–107; Reference EhrlichEhrlich, 1936, p. 32; Malinowski, Reference Malinowski1926/1989, p. 18; Weber, Reference Weber1921/1972, p. 16, 186). Nevertheless, these early debates refer to a controversy vis-à-vis legal pluralism that still exists today. Some scholars argue that law should not be used for other normative orders than that of the state (Reference MooreMoore, 1978, p. 81, Reference Moore2014; Reference RobertsRoberts, 1998, p. 95; Reference TamanahaTamanaha, 2008, p. 397). I will follow the argumentation of scholars that are skeptical towards this limitation and strict dichotomy of legal/nonlegal orders, thus adhering to a broad notion of law (Reference Benda-Beckmann and TurnerBenda-Beckmann & Turner, 2020, p. 90; Reference Merry and BermanMerry, 2020, p. 169) and one that questions the clear distinctions between rules, (legal) norms, social control, and law (Reference BermanBerman, 2020b, p. 2; Reference GriffithsGriffiths, 2017; Reference Trevino and DeflemTrevino, 2019). Generally, it is difficult to isolate politics from law (Reference Nagy and SriramNagy, 2013, p. 82), which is particularly applicable in the context of refugee camps. For that reasons it seems to be sensible to follow this recommendation and a “hard” legal pluralism with a descriptive concept of law, as Reference GriffithsGriffiths had in mind (1986, pp. 3–4, 2017). In this article, legal pluralism is used as an analytical concept that inevitably leads to empirical questions and primarily to distinguish between different legal systems, thus not deciding on the right—or (non)legitimate—law (Reference BermanBerman, 2020b, p. 10; Reference Zips and WeilenmannZips & Weilenmann, 2011, p. 11).
I will use the term local camp law in the following to emphasize that the legal orders described in the camps are applicable and tied only to this specific camp context (Reference Benda-Beckmann and TurnerBenda-Beckmann & Turner, 2020, p. 87). I avoid the terms of “informal law,” “traditional law” or “customary law” because these wordings imply something that is not applicable, such as being early or primitive forms of law. Moreover, “informal law” can have many formal mechanisms and “traditional law” is also under constant change or is in fact not traditional at all, in the strict sense of the word (Reference Benda-Beckmann and TurnerBenda-Beckmann & Turner, 2020, p. 87).
To understand local camp law, I use the concept of legal pluralism and living law. Living law (Reference EhrlichEhrlich, 1936) is a precursor to legal pluralism (Reference Benda-Beckmann and TurnerBenda-Beckmann & Turner, 2020, p. 94; Reference GriffithsGriffiths, 2017), which focuses on the universal plurality of law but also the soft boundaries between law and everyday life. That is why, the question of law will be turned praxeologically and answered by observing the practical accomplishments of law (Reference DupretDupret, 2005; Reference GarfinkelGarfinkel, 2002, p. 65). In terms of the methodology and methods of my study, this means that I conducted an ethnographic-ethnomethodological legal study.
Ethnographic-ethnomethodologically informed legal studies
With an ethnomethodological approach, law is understood as a phenomenon that the participants methodically produce for each other as objective realities in competent practices (Reference Dupret, Lynch and BerardDupret et al., 2015). Ethnomethodological studies of law highlight the phenomena of legal practice itself and investigate the competences through which people “collaborative produce and coordinate legal actions in particular circumstances” (Reference Dupret, Lynch and BerardDupret et al., 2015, p. 4). Thus, the relevance of law and its legitimacy is not presupposed but identified through the active bringing forth of the participants. Rather than assuming the existence of set legal-social variables or a body of law that enforces its order, I use this praxeological approach to focus on legal practices themselves (Reference DupretDupret, 2005, p. 26). Thus, the legal reality production and the law execution reality, that is, the doing law, are examined (Reference Dupret, Lynch and BerardDupret et al., 2015; Reference Lynch, Turner and RisjordLynch, 2007, p. 486). Through this approach, the given social fact of the legal order per se is first suspended to gain a view of how a legal order is produced in the acts of the members of the camp public. Camp residents, for example, are thus not only seen as addressees of rights, but as active participants in the establishment of legal orders and institutions. Consequently, I conceptualize the production of the camp legal order as a public, observable event (Reference BochmannBochmann, 2021, p. xxi).
To adopt an ethnomethodological perspective, I primarily use ethnographic perspectives to reconstruct local legal practices (Reference McConnachie, Creutzfeldt, Mason and McConnachieMcConnachie, 2020, p. 193; Reference Lynch, Turner and RisjordLynch, 2007). Ethnography seeks empirical investigation of lived and practiced sociality and local knowledge (Reference Hammersley and AtkinsonHammersley & Atkinson, 2019). It involves a specific approach to questions of research design that is characterized by the basic principles of inductance, iterativity, and the fundamental appropriateness of the object (Reference Lynch, Turner and RisjordLynch, 2007, p. 510). Central to any ethnographic work is the maximum proximity of the researcher to the field, with long-term participation in and observation of everyday practices—and their documentation (Reference Hammersley and AtkinsonHammersley & Atkinson, 2019; Reference Lynch, Turner and RisjordLynch, 2007).
Therefore, the empirical data from which findings for this article are drawn were collected over 20 months cumulative ethnographic field research in the Thai-Burmese border region between 2011 and 2018. I got field access through a local CBO who employed me as a teacher at a college. The teachers at the college had a good command of English. They were a great support to me and some of them became my gatekeepers (Reference BochmannBochmann, 2022). Before my field research, I learned basic Burmese-language skills and during field research. I learned a dialect of Sgaw Karen, that was spoken by many in everyday life. I undertook intensive participatory observations, produced more than 50 h of audio-visual data, and held various informal conversations as well as open interviews. I did not select my interviewees in a specific way; rather, I encountered them in the field and engaged with them in conversation. In this context, it is important for me to mention a comment made by a section leader who was my neighbor as well. His family regularly invited me to dinner where we talked about life in the camp. To my many questions about his work, he replied, “Dramu, if you really want to understand my work, you have to follow me.” I followed this invitation, and this is how my fieldwork can be described. I followed the actors and observed their everyday doings and work (Reference BochmannBochmann, 2022). In addition, various types of documents—particularly ones referring to the legal systems of the camp—were collected that are also understood as “natural” data—meaning texts that were not produced specifically for research purposes, but rather mark the practical concerns of the field.
The data was analyzed according to the following main rules: explore ethnomethods (Reference GarfinkelGarfinkel, 1967, p. vii; Reference Lynch, Turner and RisjordLynch, 2007, p. 486) and social facts as local and practical accomplishments (Reference GarfinkelGarfinkel, 2002, p. 65), ‘there is order at all points’ (Reference Sacks, Maxwell and HeritageSacks, 1984, p. 22), be context sensitive (Reference BergmannBergmann, 1988, p. 43) and follow a sequence and membership categorization analysis (Reference Dupret, Lynch and BerardDupret et al., 2015, p. 12; Reference Moerman and TurnerMoerman, 1974, p. 61).
During my field research, I mainly focused on the areas of governance, economy, mobility, and borders in the camp (Reference BochmannBochmann, 2021), less on legal orders. But I was confronted with this topic during field research again and again. Ultimately, a sentence in an interview with a camp leader, led to the study of the topic of legal orders in the camp. The sentence was “if they [the people] break the law, they can see the law.”Footnote 4 I will come back to this sentence in the following where I describe the mechanisms for the production of local camp law. Before that, however, I would like to present the specific case of Burmese refugee camps in Thailand and its political context relevant to the legal situation in the camps.
The case: Actors and power relations in Burmese refugee camps in Thailand
Burmese refugee camps in Thailand have been in existence for more than 30 years. The reasons behind that are complex and diverse (Reference McConnachieMcConnachie, 2014, pp. 21–39; Reference DudleyDudley, 2010, pp. 67–91; Reference LangLang, 2002, pp. 56–81). One main cause are decades-long military conflicts between the Burmese national government and various groups seeking for autonomy, living in the border regions of Myanmar which leads to mass migration from Burma to surrounding countries.
These ongoing conflicts and related reasons resulted for millions of people in the escape to Thailand. Thousands of people have been seeking protection in camps at the border between Myanmar and Thailand. There are currently about 94,000 refugees across nine Burmese camps in Thailand (TBC, 2019). These refugee camps are not administered by UNHCR. Instead, refugee committees and camp committees took over their administration and governance. These were founded by the political elites from the home regions of the respective ethnic groups. The committees cooperate with a consortium of various international aid organizations, which in cooperation take over the main care in the camps (see Reference McConnachieMcConnachie, 2012, p. 39ff.). The close cooperation between aid organizations and the committees, still ongoing today, occurs for various reasons but is in the interest of the receiving state that enforces a minimal presence of expatriates in the camps (BBC, 1992, p. 30; Ministry of Interior Regulations). This enables camp residents—and especially their political elites—to manage the camp's administrative and governmental systems (Reference McConnachieMcConnachie, 2014, p. 92ff., 140). Beyond that, it is important to notice that strong historical, economic, political, and social links in the border region exist, dominated by the different ethnic groups partly speaking the same languages on both the Burmese/Myanmar and Thai side of the border (Reference LangLang, 2002, p. 137ff.; Reference BochmannBochmann, 2021, p. 39).
Until today, Burmese refugee camps in Thailand are renowned for a high degree of community autonomy and for their self-governance, with control in the hands of refugee representatives (Reference DudleyDudley, 2010; Reference McConnachieMcConnachie, 2014, p. 92ff., 140; Reference LangLang, 2002). Not only scholars but also aid agencies and reports by the Karen Refugee Committee emphasize this characteristic of self-governance (KRC, 2003; TBC, 2004). But the power relations between the consortium and the committees changed fundamentally. While until the 1990s the committees acted very autonomously and the aid organizations only provided support, the influence of the NGOs on the government and the management of the camps has increased enormously (Reference BochmannBochmann, 2021, p. 48).
The formal body that overlooks, manages, and represents the residents of six camps is the Karen Refugee Committee (KRC). Each of these six camps is again represented by a camp committee including a camp leader. Camp committees are a kind of supreme governmental body on-site, that cooperate with different actors related to the individual camp. They maintain regular contact and close relations with authorities in the region of origin such as the KNU (Karen National Union), some of whom are also living in exile in Thailand. Many local, community-based organizations working in the camps have ties to the KNU as well. The camp leader and the committee members regularly participate in meetings with KRC and international aid organizations. There is also cooperation with local state authorities such as the Thai district officeFootnote 5 and the local Thai village leaders. But the camp leader and other members of the committee not only maintain contact with important “external” actors, for which they mostly must leave the camp, but also regularly exchange information with section leaders and the related committees.Footnote 6
These multiple actors that I have just introduced demonstrate already the fragmentary plural character of power in refugee camps. Many studies highlight the multiplicity and heterogeneity of power relations and describe camp governance, sovereignty, and authority as multiple, plural, hybrid and contentious (Reference MaestriMaestri, 2017; Reference Ramadan and FregoneseRamadan & Fregonese, 2017). Nevertheless, as discussed earlier, there is increased emphasis by scholars on the dominance and power of the humanitarian regime (Reference AgierAgier, 2011; Reference TurnerTurner, 2010). The dominance of the international regime in terms of legal systems can be questioned but the plural character seems to be evident from the examination of the different legal systems and their administrations. That is why the models for describing law within these spaces should also reflect that political pluralism. When scholars recognize these multiple sources of transnational and nonstate authorities, we are also not able to refer to one single abstract conception of law (Reference BermanBerman, 2020b, p. 3; Reference Nagy and SriramNagy, 2013).
The legal pluralism is reflected in a quotation from a KRC document of 2011 that refers to the different responsibilities but also uncertainties regarding the legal systems in the camp:
“[W]ho is responsible? Whether the host country or international organisations or the community itself for the increasing misbehaviors. Certainly, we are all responsible to maintain fairness and justice for the peacefulness of the camp community. What rules and law would be best to apply for the camp administration? It's a hard question to answer. The difficulty remains unsolved to this day. What rules and laws that are most appropriate to practice among the refugee community? What rules and laws have been applied for 36 years in camp management? Truly, there have been no definite rules and regulations for camp administration and legal systems so far.”Footnote 7
The authors of the document present three different actors of the legal system in the refugee camp: “the host country,” “international organizations,” and “the community itself.” In the following I take this differentiation as a basis, and I also try to give answers to the open questions that are raised in the KRC document in the following where I describe the mechanisms for the production of local camp law.
MECHANISMS FOR THE PRODUCTION OF LOCAL CAMP LAW
Active noninterference by the host country
As mentioned earlier, in the case of Burmese refugee camps, the receiving state has not signed the refugee conventions. Thailand has also not shown any interest in asserting its sovereignty to influence the camp's legal system and integrate the Thai one into the latter, or in creating structures that allow the camp population access to the national legal system. The receiving state assumes that these camps are only a temporary solution (Immigration Act, BE., p. 2552), which resulted in a lack of interest in providing resources to facilitate this legal integration (Reference BochmannBochmann, 2021, p. 44). In Thailand, there are also no national laws or other legal documents that specifically regulate the rights of asylum seekers.
There is the principle that conflicts and disputes within the camp should also be resolved on-site—a consensus that is still valid today, especially between local Thai authorities and camp leaders itself. This maxim of active noninterference and the preservation of autonomy—the absence, at present, of the state—has also been mentioned in studies of the legal system in other regional contexts (Reference SagySagy, 2009, p. 49). As a member of the paramilitary group present in the camp remarked with a laugh when I asked him if they also must deal with conflicts on-site:
“This is not necessary. You know, a quiet camp is a good camp and xy [name of the camp] is a good camp. No problems for us.”Footnote 8
This mutual independence of legal system was also evident during my field research. I was never told of a case that was brought to Thai courts, nor was this ever an issue in conversations with people in the camp. Problems are to be dealt with in the camp bubble.
The state's active noninterference in camp legal affairs led to the possibility—but also to the necessity—for residents themselves to establish legal orders. After tracing the autonomy of camp law and its developments below, I would like to show how, through international actors, the role of the national legal system for camps may also change. But before that, I would like to briefly introduce one historical reason. The Thai state made an important decision, which had a great impact on the legal and governmental system. Because of the armed conflicts in Myanmar spreading on Thai territory affecting Thai villages, the up to 35 refugee settlements at the border were merged into 16 larger camps. This was carried out in a collaboration between the Thai authorities of the provinces, districts, international organizations, and the federal government—(BBC 1995 July–December, p. 9). As a result, in 1996, three camps were established under the authority of Karenni authorities (originally six), another three Mon settlements (originally five) arose, while six camps were formed under the authority of Karen representatives (originally 24) (BBC 1995 July–Dec, p. 9; BBC 1998 July–Dec, p. 9).
The legal autonomy of camps
Until the merging of the many individuals, small settlements into large camps, the legal system and legal practices in the refugee camps were mainly in the hands of camp authorities. Back then, a local camp law was developed by refugee authorities. There was never a coordinated, common system of conflict resolution or legal order, neither between the many camp settlements that emerged at the start of the refugee situation, nor across the individual camps that formed in the 1990s. Historically, the representatives of the individual camps or settlements acted quasi-independently of each other, thus both the form of government and the legal system differed from camp to camp (TBBC 2011 January–June, p. 158). This quasi-autonomous position is reflected in the individual camp legal texts on both civil and criminal issues.Footnote 9 Also, spaces for the detention of accused persons are only available in the individual camps or sections (see Reference McConnachieMcConnachie, 2012, p. 140). There is no central prison run by KRC, who are responsible for all Karen camps.
The KRC played a role because it drew up a legal text early in the new millennium that was to apply to all camps that it governed.Footnote 10 It is not surprising that these common rules were drawn up some years after the many small settlements were merged into a few large camps. These territorial interventions created the basis for centralized access to the residents, for legal practices, and governmental and legal systems. The KRC legal text moreover reveals entanglements and connections with the systems and institutions of the home region. For “serious” legal matters, such as murder and rape, it was stated to transfer the case from the legal system of the camp to the authorities of the home region.Footnote 11 Although personnel of the Karen National Union (KNU) did not play an active role in legal proceedings in the camp itself, as was the case with the Karenni camps in relation to the Karenni National Progressive Party (see Reference DudleyDudley, 2010, p. 41), the KNU's legal documents (“Kaw Thoo Lei Law”) were relevant in KRC camps (Reference McConnachieMcConnachie, 2014, p. 71ff.). Still, we need to recognize that legal practitioners in the camp cooperate with the officially recognized body of legal agents of their region of origin, which is resisting national state authority. That means that both the authorities of the home region and the camp authorities legitimate mutually. However, later I will show that one part of this cooperation is that governance institutions of origin may intervene when perpetrators go back to the region under KNU jurisdiction and authority.
The fact that camp residents establish their own legal systems does not correspond to legal norms the international organizations are committed to and that is why they are trying to change the running system. The increasing presence of international organizations and its relevance to camp law becomes evident in a modified version of the KRC legal document of the year 2000. According to the “new” legal document of 2012, serious crimes such as murder and rape were tried not in the region of origin but within the Thai legal system.Footnote 12 The presence of international organizations increased the relevance of the law of the host state. International organizations thus also advocate for the power of the state (law).
International organizations transform camp autonomy
The refugee committees came under increasing pressure—mainly from IOs and their donors—to reorganize the practiced, but little formalized, governmental, administrative, and legal systems into a more civil, transparent, and formal entity—one separate from KNU structures and in accordance with the Convention, human rights, women's rights, and other international legal texts. There are various explanations on why this change was triggered (Reference BochmannBochmann, 2021, p. 29ff.). But the pronounced legal and governmental autonomy of the individual camps was significantly transformed when a consortium of aid agencies, in cooperation with the KRC, developed the so-called Camp Management Program (KRC 2006 Nov, p. 5). While establishing the latter, the government systems of the camps were evaluated and formalized by the NGOs—also with the aim of rewarding all government employees (KRC 2009 July, p. 2; TBC 2011 Jan.–June, p. 63). This means that camp authorities—including the ones involved with legal-case makings—are rewarded with incentives by the consortium. Moreover, organizational charts were created that documented, for example, the formal separation between an executive body (the camp committee) and a judicial body (Mediation and Arbitration Team), with corresponding separate staffing (TBC 2006 Jan–June, p. 52; TBC 2009 Jan–June, p. 88–89). Even though the transitions were fluid and close interrelationships between the bodies continued to exist (Burma Lawyers Council, 2008), a formal distinction between the judicial and executive bodies was created—and thus at least the responsible authorities knew about this. The separation of power was imposed by international organizations. This intervention of global governance institutions aims to harmonize camp law with international standards. Thus, this international intervention contributes to legal complexity and pluralism.
In addition, the legal system in some camps was transformed because UNHCR and the International Rescue Committee (IRC), in agreement with the Thai government, initiated a program to develop the transparent administration of the legal system. The Legal Assistance Center (LAC), founded in 2006, aims, among other things, to harmonize “customary camp law” with national and international standards. A human rights-based approach was implemented (UNHCR 2006), and camp authorities should, for example, punish suspects or offenders through rehabilitation programs rather than through possible “customary” punishments such as imprisonment, corporal punishment, or banishment (Human Rights Watch, 2012, p. 54). In addition, UNHCR, the Thai government, the refugee committees, and the IRC produced a document formalizing the legal system in camps called “Mediation and Dispute Resolution Guidelines.” A UNHCR-led and sponsored legal counsel was also established, which should be accessible to all victims of crimes and to the accused—with the goal that all serious legal cases will be forwarded to the Thai legal system.Footnote 13
These international programs are transforming the legal camp system mentioned above and have also increased the importance of the receiving state. International organizations and their conception of how law should be practiced also have implications for the legitimacy of camp authorities that potentially undermine their authority (Reference McConnachieMcConnachie, 2012, p. 150). Even though the LAC was not implemented in the camps where I conducted field research myself, upholding the international legal system in all camps seemed to be crucial from an NGO perspective. This interpretation of the law is shown, for example, in an interview wherein I told an NGO worker about a (semi-)public detention:
“They are not allowed to do this anymore. You should tell me in which section this happened, exactly. And who was involved? You should tell me. They are not allowed to do this anymore. They should know this!”Footnote 14
This angry comment makes clear that actors in the camp present on-site in different ways refer to diverse legal systems, ones that are also in conflict with each other. References to human rights is increasingly being introduced and made relevant also through community-based organizations, such as the Karen women's organizations (KWOs), which are very present in every camp but also in the refugees' home region. These actors and carriers of international law can play a role in concrete legal cases in the camps (see Reference McConnachieMcConnachie, 2014, p. 132ff.).
Despite the increasing relevance of the LAC programs and the international legal systems and aid agencies, especially in those camps that are easily accessible and close to Thai cities, my observations show that disputes are primarily negotiated and resolved at the local section level, which is formally and hierarchically below the camp level. The legal landscape may have an impact on the legal configuration in the camp as they provide an abstract background to which parties of a conflict may refer to or are forced to refer to depending on how present international organizations and state actors are in the camp. But the local camp law including its institutions and legal practitioners, as I could observe it, were not in open conflict with international legal systems. Their relevance was minimal. What kind of legal system informs case proceedings depends on its presence in the camp and on the accessibility to respective legal institutions and bodies. These circumstances may differ from camp to camp, region to region, or even case to case. In the camps where I conducted field research, local camp law dominated alongside relatively powerful authorities.
The communication and primacy of camp rules
According to my observations, hardly any explicit reference was made to the diverse, already-mentioned different legal texts in play such as individual camp rules, KRC regulations, or the legal documents created on the initiative of international organizations. Many members of the section committees were not even aware of these legal documents; at most, there was vague knowledge of the existence of the ones mentioned earlier. The early mentioned answer from a camp leader when I repeatedly inquired about the written rules and laws in the camp is characteristic of the legal system in practice on-site and of the handling of documented law: “Dramu, do not worry about this. Believe me people in the camp they all know the rules, and if they break the law, they can see the law.”Footnote 15
Even if legal documents are not accessible and known to the camp public, this does not mean that the latter have no awareness of the legal orders in the camps. The handwritten posters on camp rules that are present in the sections coincided broadly in scope with the individual section, camp, and KRC rules. Camp rules were also frequently communicated, for example, via section meetings on-site and via announcements over loudspeakers by section staff members and authorities (Reference BochmannBochmann, 2021, p. 57, 78). But codified camp law played more a role for the international initiators of code than for local practices, at least from my observations. Still, legal documents provide an abstract background, to which parties of a conflict may refer to occasionally.
The reciprocal preservation of local autonomy
The concrete, observable legal proceedings show the importance of case-oriented, oral, and local camp law. This includes, for example, maintaining legal autonomy not only for the individual camps, but also for the individual sections. According to the camp leader, conflicts are primarily negotiated at the section level. Only in case the section leader is not able to resolve the problem, they can discuss a case with the camp leader who is formally higher up in rank, or, in consultation with the latter, forward the case to the camp committee. But there is no compulsion to do so. A camp leader explained that he himself does not generally get involved in local conflicts unless a section leader requests help.Footnote 16 This also corresponds to the statement of a section leader. Cases would rarely be forwarded to the camp leader, and only with the consent of the involved parties. When I asked a section leader when he last involved the camp committee in a conflict case, he replied after thinking about it for a while: “Last year, we did send someone, but not this year.”Footnote 17 In another camp section, its leader explained to me as well that the forwarding of the case was always dependent on the interest therein of the people involved and confirmed: “Only when we are not able to handle a conflict on our own do we ask the camp committee for help. We, and the people, do not want to disturb them and we also try to handle the issues ourselves.”Footnote 18
A similar description can be given for the involvement of KRC legal bodies. Very rarely are cases from the individual camps handed over to the KRC. The mere threat that a case will be referred to the latter leads to the parties involved accepting the decision of camp authorities. In case the camp leader cannot deal with a case, he asks KRC members for advice. A camp leader further told me that the simple threat of sending someone to the KRC makes people accept his decisions and is enough to make people behave properly. He gave the following example:
“So, we ask the wife, for example, we wait one night, put him in detention and then ask her again, ‘Do you really want us to send your husband to the KRC?’ After one night she might change her mind […].”Footnote 19
This example shows that people involved in conflicts not only have respect for higher-ranking authorities, such as KRC, but rather want to let conflict cases rest and do not want to attract further attention. In this way, power dynamics are maintained in the camp, which functions through such a threat, which can be understood as a legal act or remedy for a solution. The desire not to cause any further publicity does not only run through the camp legal institutions (to solve cases as locally as possible), but also runs through ordinary camp residents. And this desire is also related to the camp context itself. The camp is in a state of temporariness and state toleration, which is why as few problems as possible should leak but are better solved internally. I will come back to this aspect at the end of the article. But in this sense, the camp context reinforces local camp law.
After further inquiries about the last time the camp leader involved the KRC, he said that he did not need to because he had good control over his camp and a sound relationship with the local state authority of the province.Footnote 20 He then explained that 2 years ago he had to refer a case of sexual abuse to the KRC because the parties involved could not agree on a solution. However, the case was referred back to him on the grounds that, since he was on-site, he could better assess and evaluate the situation. This means that the KRC also denies legal case making. This case confirms once again the importance of treating problems locally. That such a case should be forwarded to the Thai judiciary was never in question.Footnote 21
A KRC employee offered the same conclusion; the KRC is only involved if the main authority of the camp cannot handle the case, which happens very rarely.Footnote 22 This means a camp leader would have to actively request and involve the KRC and admit that he is not able to solve the case himself.
Overall, these descriptions reveal that a hierarchical order of different legal bodies is well known to section, camp, and KRC levels. However, in practice, the protagonists tend not to involve higher authorities in legal cases. Cases are very rarely transferred to higher authorities. In agreement—although conflicts between authorities and across levels cannot be ruled out—there is a reciprocal consensus that conflicts, problems, and cases are preferably resolved at the local level. Thus, the section level is not only an important government structure in the refugee camp (Reference BochmannBochmann, 2019); it is also of central importance for the legal system on the ground.
Legal practices and case processing: Negotiations between conflicting parties
The section committee members are mostly the first point of contact for problems and unsolvable conflicts or disputes. Every evening, section committee members meet for informal discussions at the warehouse.Footnote 23 Alongside being an opportunity for dealing with many other minor issues, the consultation hours created a central point of contact in case of conflict.Footnote 24 During my presence, a wide variety of cases were brought up and discussed. In more complex disputes, there were repeated meetings between the section leader, other members of the committee, and the conflict parties—both during and outside of the evening hours. Based on negotiations between the opposing sides and their family members, it is mainly the section leader and the security officer who make decisions. They also issue warnings and enforce penalties.Footnote 25 Employees of the Karen Youth Organization or of the KWOs and a section advisor who is usually a respected older person in the sectionFootnote 26 can also be involved in these case makings. The following case illustrates the importance of speaking and negotiating between the conflict parties and the responsible authorities as a central element of conflict case processing in the camp.
“A boy, about 14 years old, stole money and other products from a larger store in the camp. The boy lived in another section. The section leader and the section security officer met with the boy and the store owner, discussed the case, and negotiated together about the punishment. That same evening, the leader of the section where the boy lived was brought in to discuss the case with him. I was later told that the boy was probably very poor. The result of the discussion was that the boy had to return all the products as well as the money and do community work in the section where he committed the crime. He also had to apologize to the store owner and promise that he would not steal any more, otherwise a different punishment would be imposed. Furthermore, the leader of the section where the boy lived would keep an eye on the latter. The section leader also said to me that there are no general rules for theft, you have to see how the parties involved agree.”Footnote 27
In this specific case, the section authorities need to agree on how to deal with the case. The decision on how to handle the case is made based on negotiations between section authorities and not defined by general rules and laws. The local authorities agree based on the circumstances of the case. However, the case is not completely closed at the end. The case is taken care of and taken into the future, because the boy is now under special observation of the sectional authorities, in which the boy lives. The section authorities therefore take some responsibility for it or make a promise to the section authorities where the boy stole items that the boy will not become an offender again. In this way, local power and governance dynamics in the camp reinforce law and order as, for example, that the section authorities respect and recognize each other.
The legal proceedings here are exemplary for other cases that I encountered during field research. Solutions to conflicts were found primarily through negotiations between the parties concerned, and/or with the help of a recognized legal body established by section members to oversee mediation procedures. Verbal communication, conversations, and oral-settlement negotiations are key means of conflict case making and resolution. This shows that the legal system is not primarily established through documented rules and laws, but negotiations. In the latter, documented rules and laws are of less relevance; finding solutions in discussions with the conflict parties take precedence instead. Since the negotiations aim above all at resolution, precisely formulated and concrete legal norms are not of paramount importance. Legal norms necessarily remain general and vague instead (Reference RobertsRoberts, 1998, p. 26). Law and legal texts are not, so to speak, generally discussed or known about, rather what has happened in a concrete case and involving whom (Reference FallersFallers, 1969, p. 320).
The following observation underscores the relevance of negotiations, in which the physical presence of all parties is of central importance.
“A family accused their neighbour of raping their daughter. In this case there were several meetings between the parties involved, in which the families discussed the case with the section committee. Months later I was told that the accused left the camp (“he escaped from the camp”), and the case could not be negotiated any further.”Footnote 28
This case shows that as soon as one of the conflict parties is no longer present in the camp, the legal or negotiation case dissolves since the talks and meetings cannot be continued. However, the case also shows the “voluntary” banishment of individuals from the community because of behavior that does not conform to camp rules—something that can certainly be conceptualized as a punishment and should not be underestimated. Withdrawal of the community's cooperation and exclusion from camp life were often used as means of punishment by the authorities themselves.Footnote 29 Exclusion applies not only to the camp, in which the breach of law was committed but is enforced for all others as well. Furthermore, the potential persecution of the accused in the home region, due to the cooperation between the KRC and the KNU, is considered a possibility and indeed practice.Footnote 30 This means that legal practitioners in the camp cooperate with legal agents of the region of origin and part of that cooperation means that governance institutions of origin do intervene should accused persons move back to their territory of jurisdiction. This also means that jurisdictions and legal practices of camp authorities and authorities of the region of origin legitimize and accept each other.
Another observation worth presenting briefly is that in a meeting between camp residents and section authorities, participants were irritated to a limited extent by deviant behavior and did not automatically declare it a case of conflict or negotiation.
“Two drunken men disturbed a public section meeting, wherein section authorities and about 50 section residents were participating. One man ran to his house opposite and demolished it, even though his three small children and wife were inside. Everyone kept on watching but no one intervened. Afterwards, the two men tore through the meeting, screaming incomprehensible things. But they were actively ignored by everyone involved. When I later spoke with a section staff member, he explained to me that this case was not discussed further among the section staff.”Footnote 31
This case shows how deviant behavior is tolerated in favor of the harmonious maintenance of the joint meetings, and that even the section committee does not automatically render a case a legal one that needs to be negotiated. The earlier discussed maxim of active noninterference—we try to handle the issues ourselves—also applies to the section committees. There is no need to intervene if a case is not brought up by participants. Instead, there seems to be an informal effort to reach tacit agreement at all levels of the camp, not to communicate, and not to make conflicts more public than necessary. That the residents themselves publicly declare an event to be a case of conflict also confirms this maxim. The maxim can also be explained via the camp public and the specific refugee camp context.
The camp public and the materiality of encampment
The relevance of the camp public regarding the declaration of legal cases and the involvement of legal authorities is explained by a camp resident in a conversation with me. She emphasizes and describes the socially effective behavioral controls embedded in everyday camp life and names the involvement of the section and camp level as the very last measure. She provides information about why cases of conflict are reluctantly reported, made public, and thus part of a legal system.
A: “So people usually go to section staff?”
KKS: “You know. In general, I would usually say people in the camp really try to hide what they have been suffering because they don't want to get weird attention from others, and they feel embarrassed to let other people know. They don't want to be the topic that other people would gossip about, you understand? Mostly, they would try to solve it quietly without letting other people know. But in case they really can't be solved among themselves or the family, then they usually go to the section leaders or camp leader. But I think camp leader is really a next step.”Footnote 32
This comment by the camp resident makes it clear that in addition to legal instances other central mechanisms of continuity of order and conflict management are embedded in everyday life, without being secured by subsystems of law. These include strategies to prevent public shaming, people do not want to become the object of public gossip. Dependent communities exist in the camps, especially neighborhoods with reciprocal social obligations and closely intertwined personal relationship structures. This is extremely relevant in the context of the camp, as many “normal” everyday activities are embedded in structures that are not officially permitted and are thus partly dependent on the camp public (Reference BochmannBochmann, 2021, p. 78). If law is only constituted and recognized where institutional third parties deal with cases brought forward as mediators (and thus develop legal norms), this aspect of the camp public sphere remains underestimated, although it makes a significant contribution to the camp's legal order. Law is therefore only one of several forms of social control (Reference Trevino and DeflemTrevino, 2019, p. 38). Research into the legal system, legal documents, breaches of law and cases that provide information on how law and order are established and maintained is limited (Reference MalinowskiMalinowski, 1926/1989, Reference RobertsRoberts, 1998, Reference Trevino and DeflemTrevino, 2019).
The communication of camp rules and behavioral expectations, for example, is ubiquitous. They are announced in the daily (impossible to ignore) loudspeaker announcements but also repeated and discussed in regular meetings between section authorities and ordinary camp residents. The many posters of international organizations, the presence of community-based organizations, and the relationships between refugees and Thai soldiers present in the camp also contribute to how law and order are established in the camp (Reference BochmannBochmann, 2021). Some of these rules, known in the camp and established by state or international actors, are systematically disregarded by residents and camp authorities in everyday life. I discuss this phenomenon, which can equally be framed as part of local camp law, at length as “public camp secrets” (Reference BochmannBochmann, 2019, Reference Bochmann2021).
There is also significant knowledge about the establishment of law and order in a variety of everyday practices within the camp public. This includes the method of preventing public shame by the camp public. The camp architecture enables and reinforces these social phenomena. People are forced to live in very confined spaces, and the houses are constructed of bamboo—making domestic life permeable to being both seen and heard even against one's will. This architecture reinforces the danger of public ridicule and creates strong social pressure. At the same time, the enforced closeness of living in closed quarters in the camp and the powerful public sphere due to the camp architecture counteracts a lack of norm conformity. This temporary infrastructure also shapes the everyday practices that are necessary to maintain (legal) order and stability.
The risk of being disliked, ridiculed, or disregarded by the camp public in the event of noncompliant behavior enables considerable behavioral control, as does the fear of disgrace and loss of cooperative partnerships. As a result, the mere threat of public sanctions by local section authorities plays a major role. The same applies to the threat of making a legal case public, referring it to a higher camp legal level. Moreover, the materiality and architecture of the camp also contributes to specific mechanisms of the legal system. It can therefore be clearly seen that multiple mechanisms of continuity of order and conflict resolution are embedded in the everyday life of a camp without being secured by recognized subsystems of law (Reference BochmannBochmann, 2021; Reference Trevino and DeflemTrevino, 2019, p. 42).
THEORETICAL IMPLICATIONS: THE POWER OF LOCAL CAMP LAW
Based on my empirical analysis I argue that camps should be viewed as an extraterritorial space with a legal autonomy creating a dominating local camp law that is surrounded by legal pluralism. The observed situations show the impact of diverse legal orders on the local procedures, even though there is no profound competition among legal orders. The legal pluralism is primarily visible in legal documents and certain discourses, conversations, or interactions between different actors. But in the legal case proceeding presented here, the practical problem of legal pluralism is less evident. Even though legal pluralism is not observable in the case proceedings, we still need to consider that the practical handling of legal pluralism lies precisely in the fact that the pluralistic orders are not made relevant in situ; legal cases are competently shielded and protected by protagonists from other legal systems and authorities. This is a practical problem that is solved in everyday life and in the making of legal cases—primarily by not including other legal systems following the maxim of active noninterference and the preservation of autonomy.
Moreover, I argue that refugee camps can certainly be described as legal-pluralistic conglomerates, since more than one legal system may become relevant in social interactions and situations, and they may well conflict with each other. This can be argued without claiming that this necessarily must be visible in every negotiation or legal case (Reference Benda-Beckmann and TurnerBenda-Beckmann & Turner, 2018, p. 264). Yet, there are cases, in which participants refer to human rights or women's rights, or in which disagreements exist. McConnachie describes, for example, a case in which children's rights or “UNHCR law” stood in opposition to “customary camp law,” and the conflict parties discussed the responsibilities of the respective Reference McConnachielegal systems (2014, p. 151). But to understand legal pluralism in action, it is necessary to take a closer look at how cases are created and how they are handled in practice. Here, research is required that is dedicated to case construction or production, and that traces the course of proceedings. Cases of conflicting authorities and lines of conflict regarding jurisdiction thus need to be observed more closely. This case in which international law is referred to—but also the presented legal reforms in other camps in which “UNHCR law” or national rights have gained in relevance—demonstrate that the local camp law described here is subject to change and transformation. It might look different today and tomorrow.
Still, the legal situations observed and presented here cannot be characterized exclusively by legal pluralism; rather, in the concrete processing of legal cases, a local camp law and the parties' chosen means of negotiation dominate. This local camp law may well differ from other refugee-camp situations, and so must be examined empirically in the sense of doing law or legal pluralism in action. There are certainly local camp law systems where international, religious and/or state legal systems are much more relevant (Reference GriekGriek, 2006; Reference HolzerHolzer, 2015; Reference Riach and JamesRiach & James, 2016). My observations illuminate on a specific local law that dominates the legal system of the camp. This local law has the following characteristics:
1 The parties to the conflict meet with the legal practitioners who act as negotiators between the parties and negotiate cases until they are resolved. The introduction of certain international legal norms also depends on these negotiations. There are different people in the section committees who are involved in the cases. There are sections in which this local legal institution is hardly used and others, in which it is often used. This depends on whether the section committee has recognition in the section. The section committee members gain recognition in their functions, but also through the knowledge, experience, and skills they bring with them and have learned in the camp, but also in the time before the camp. Legal knowledge is of limited importance here, rather it is about local and public recognition within the section and foremost the conflicting parties. Access to justice is given to those parties who have access to the institutions. Through the public meetings at the warehouse, the section personal tries to create access for everyone but this public access was not offered by all section committees. Moreover, the extent to which this access is used depends on the parties to the conflict. Added to this, I have shown that access is limited by the fact that the social public plays a major role in the camp, which needs to be recognized as part of local camp law.
It is important to notice that all these mechanisms—the responsibilities for case handling, the heavily pronounced principle of subsidiarity, and the principle of joint negotiation—are reminiscent of legal structures in the regions of origin of camp residents. In Myanmar, local informal resolution practices are preferred. Village leaders are significant justice providers (Reference Kyed and KyedKyed, 2020), and disputes are resolved outside of the legal framework of the state (Reference ScottScott, 2009). A centralized, Burmese, or KNU-led governmental and legal system is of very limited relevance and does not extend to the villages in the border areas of southeast Myanmar—in part difficult to access (Reference KyedKyed, 2018). Locally recognized village structures dominate, in which elders or chiefs are the primary mediators regarding breaches of the law—being the recognized persons who enforce conflict-resolution mechanisms (Reference KyedKyed, 2018). Other mechanisms described—such as regulating conflicts through negotiations, talks between all parties, or banishment from the community—are also central means of conflict resolution in home regions (Reference Kyed and KyedKyed, 2020; Reference ScottScott, 2009, p. 264; Reference MarshallMarshall, 1997, p. 288). Imported, modified pre-camp structures thus inform local camp law.
2 Another important characteristic of the camp law is that there is no strict adherence to legal documents with fixed legal norms. It is not primarily official legal documents or written law that is crucial in communicating the camp's legal systems. Rather, the loudspeaker announcements, the regular meetings between section authorities and camp residents, the many posters by IOs, the presence of CBOs, but also the architecture of the camp per se and the presence of Thai soldiers. Therefore, legal documents, the formal legal system, breaches of law, and cases do not exclusively provide us with an adequate understanding of how law and order is established and maintained.
3 But a variety of other everyday practices related to the specific context of encampment contribute to the legal order of the camp, too. The often-enforced proximity or confinement of living together, the regular interrelationships as well as the powerful public sphere induced by the camp architecture counteract a lack of conformity to norms and shape the everyday practices necessary to maintain (legal) order and stability. The danger of experiencing reluctance, mockery, or disdain vis-à-vis the camp public facilitates considerable behavioral control. So does the fear of shame and of losing cooperative partnerships. Thus, the threat (or implementation) of public sanctions by the local section authorities alone plays a major role, as does the threat to make a legal case public and to pass it on to the next level of the law. Multiple mechanisms of continuity of order and conflict resolution are embedded in the everyday life of a camp without being secured by legal subsystems.
At the end, I would like to emphasize that the very specific legal situation described here is not fully transferable to refugee camps and other extraterritorial spaces around the globe. It is only possible to know how law is made in such spaces by carrying out close ethnographic studies of local orders and living law.
Finally, is important for me to highlight that my legal analyses have shown, in line with Reference EhrlichEhrlich (1936, p. 32), Malinowski (Reference Malinowski1926/1989, p. 18) but also current scholars (Reference BermanBerman, 2020a; Reference GriffithsGriffiths, 2017) that the question of law is directly linked to that of social order and in the case described here, this is the public order of the camp. Legal-sociological studies that focus on the local accomplishment of law enforcement, doing law, are central to obtain a different, more sophisticated understanding of the legal situation in refugee camps worldwide and other areas without or limited state law. As conglomerates with a pluralistic legal system, extraterritorial spaces can hereby be depicted more accurately and differentiated per their diverse legal situations and characteristics.
ACKNOWLEDGMENTS
I would like to thank all the reviewers for their accurate, understandable, and above all, extraordinarily supportive comments. This process made me learn a lot and the article as an overall result is also their achievement. I would also like to thank Georg Hubmann for his valuable comments and proofreading loops. Open Access funding enabled and organized by Projekt DEAL.
Open access
