II. Internally Displaced Iraqis

A.  Current Concerns

As of late 2002, estimates of the numbers of displaced persons in Iraq varied from 700,000 to one million.30 This number reflects not only the continued effects of past wars, but also official policies of the Iraq government targeting particular populations, such as the Marsh Arabs (described below). 

U.N. agencies predicted in December 2003 that war could displace an additional 1.1 million people inside Iraq and 900,000 would become refugees outside the country.31 Military attacks from the air and on the ground can be expected to uproot civilians. Actions by the Iraqi government targeting particular populations, including the possible use of chemical or biological weapons, could bring still further waves of displacement. People already displaced and with a shaky support system may be forced to flee from their homes again. Recurring displacement complicates the post-war situation, when people seek to return to their homes and find them occupied by others.32

There is also the risk that internally displaced Iraqis may be trapped in a “refugee-like situation” inside the borders of their own country. In the 1991 Gulf War, some internally displaced Iraqis were unable to cross international borders to safety and instead remained in the northern “safe area” under the aegis of Operation Provide Comfort.33  Lessons learned from Operation Provide Comfort and other examples of “safe areas,” described in Section III below, raise serious questions about whether displaced Iraqis will be able to make free choices about which location is safest for them and their families inside Iraq, about whether they will be able to exercise their human right to seek asylum in other countries, and about whether any future “safe area” they might reach would be truly safe.

B.  Background

Hundreds of thousands of Iraqis have been internally displaced in the past, for a variety of reasons. Large-scale displacements occurred as a result of the 1991 Gulf war.  In addition, since the mid-1970s the government of Iraq has also displaced the so-called Marsh Arabs and other Shi’a Muslim groups in the south and ethnic Kurds, Turkmen and Assyrians in the central and northern areas. In these latter cases, the government of Iraq has displaced groups assumed to be in opposition to it and those residing in oil-rich territories, such as the northern city of Kirkuk.

In southern Iraq, approximately 300,000 people are displaced.34 At least 100,000 of these are Marsh Arabs displaced from the southeastern marshlands. Government repression of the Marsh Arabs in the early 1990s included diversion of water from the marshes near the Tigris and Euphrates rivers through the use of dams and canals.  Officially, the government claimed people were displaced from the marshes in order to offer them better living conditions. These deliberate policies deprived the Marsh Arabs of food, destroyed their agricultural traditions, and forced them from their homes. One reason for the government’s assault on the marshes was the presence of Iranian soldiers inside the marshes, which began in 1984 during the Iran-Iraq war. In addition, army deserters and political opponents from central and southern Iraq were believed to be present in the marshes.  Moreover, the government had had plans for the drainage of the region and long-term plans for the exploitation of untapped oil reserves since the 1980s. Finally, the Marsh Arabs were forced from their homes because these Shi’a Muslim people had themselves revolted against the Sunni Muslim-based government of Iraq in 1991.

In the north, estimates for the number of internally displaced persons range from 600,000 to 805,505.35  Iraqi armed attacks and fighting between Kurdish factions have caused forced displacement, the destruction of important infrastructure, villages, and agricultural land, and the laying of landmines.  The displaced in the north also include individuals who tried to leave Iraq in the aftermath of the Gulf war, but were prevented from doing so and therefore became internally displaced (see below).

Since the mid-1970s, the government has expelled Kurds, Turkmen, and Assyrians from their homes in oil-rich areas such as Kirkuk, Tuz Khormatu, Khaniqin, and other districts as part of its "Arabization" program.  Most have been expelled to areas controlled by Kurdish opposition forces and a smaller number to central and southern Iraq.  Individuals who refuse to sign so-called "nationality correction" forms are among those displaced in this manner.  These forms were introduced by the authorities prior to the 1997 population census, and required members of ethnic groups residing in these districts to relinquish their Kurdish,  Turkmen, or Assyrian identities and to register officially as Arabs.36  Underlying the Arabization campaign is the government’s desire to reduce the political power and literal presence of ethnic minorities in certain areas, and to retain control of areas rich in oil.  Motivated by these reasons, the government of Iraq displaced approximately 120,000 persons from Kirkuk and other cities under government control from 1991 to 2000.37  On September 6, 2001, Iraq's Revolution Command Council issued Decree 199, “enabling” Iraqis aged eighteen or over registered as non-Arab to change their ethnicity to Arab.38 

Not only is the Iraqi government forcing specific ethnic groups to flee their homes, but it is also adopting measures intended to prevent the return of those displaced.39 The government has built new housing in villages around Altun Kopri and Tuz Khormatu to accommodate Iraqi Arab families, and substituted Arabic for Kurdish, Turkmen, and Assyrian place names.  The Arab settlers are given title deeds of property owned by those expelled.  Military checkpoints have been established around Kirkuk, Kurdish sites have been demolished, and Kurds and other minorities in the area have been prohibited from constructing or inheriting property in the area.40  Those refusing to comply with these measures have been intimidated, arrested, and have had their ration cards revoked.41

C.  Human Rights Obligations

International law protecting the right to freedom of movement exists during both peacetime and during armed conflict.  Under international human rights law, individual decisions to seek safety in another part of one’s own country are protected by the human right to freedom of movement, set out in the International Covenant of Civil and Political Rights (ICCPR),42 to which Iraq is a party.  Although the ICCPR does permit derogation (that is, limits) on freedom of movement during times of public emergency or armed conflict, those limits must be only those strictly required by the situation at hand and under no circumstances may the limits be imposed on a discriminatory basis.  Therefore, a government may not limit the movements of only a specific ethnic group during a time of public emergency unless other concerns (such as specific threats to the safety of that group) required such limits to be imposed. 

The legality under international law of displacements during armed conflict largely hinges on whether the intent of the party causing displacement is to provide better protection for civilians or whether it is to attack civilians, terrorize them, or otherwise seek to use them to achieve military objectives. According to international humanitarian law,43 warring parties must distinguish between combatants and civilians. Civilians are protected from deliberate attack and lawful attacks that disproportionately affect them; nor can civilians be used to shield military objectives.  Civilian objects, such as houses, must also be spared attack, unless such an object is being used by the opposing side for military purposes.  Whenever possible, attacks must be planned to minimize civilian displacement and there must be warning of attacks that may displace or otherwise harm civilians.  Such warnings implicitly allow for civilians to decide for themselves whether or not to remain in the area.  Under Protocol I, warnings cannot be used to terrify the population into evacuation (article 51(2)). 

Protocol I prohibits armed forces from attacking, destroying or rendering useless items necessary for the survival of the civilian population for whatever motive, including to cause people to move away from their homes (article 54). The Protocol permits a derogation of this provision - the destruction of objects indispensable to the survival of the civilian population - by a party to the conflict in the defense of its own national territory against invasion, "where required by imperative military necessity" (article 54(5)).  It is not clear whether such "scorched earth" tactics are permissible under customary international law.

International humanitarian law prohibits individual or mass forcible transfer to other countries.  Transfers are only permitted internally if the security of the population or imperative military reasons so require (article 49).  An unlawful deportation or transfer of a protected person is a grave breach of the Fourth Geneva Convention, that is, a war crime (Geneva Convention IV, article 147). Forcible transfers of population may be crimes against humanity when they are part of a widespread or systematic attack against any civilian population.44  Should the United States go to war with Iraq and become an occupying power, U.S. forces must ensure the security of the civilian population or allow civilians to move voluntarily out of harm’s way, both within and outside of Iraq.45

Principle 21 of the Guiding Principles on Internal Displacement46 sets out the prohibition against pillage of the property of displaced persons and the requirement for protecting property left behind at the time of their displacement.  The Iraqi government’s failure to protect the property of displaced persons, such as those from Kirkuk, is a continuing concern that may prove particularly troublesome in a post-war environment when displaced persons seek to return home. 

Finally, according to Principle 28 of the Guiding Principles, authorities are required to establish conditions and to provide the means for displaced persons to return voluntarily, "in safety and with dignity" to their homes or to resettle voluntarily elsewhere.  Property disputes, the Arabization campaign, and the proliferation of landmines all currently prevent Iraqis from returning to their homes.47 If an international conflict were to occur in Iraq, dispersed family members must be reunited in accordance with Article 74 of Protocol I.

30 The Global IDP Project estimates that there are 1 million IDPs Iraq; the U.S. Committee for Refugees estimates between 600-700,000; UNHCR cites a figure of 830,000 and the Brookings Institution estimates between 900,000 and 1.1 million.

31 See United Nations, “Likely Humanitarian Scenarios,” December 10, 2002 para. 11, available at info/undocs/war021210.pdf.  Iraq also currently hosts 130,000 mostly Palestinian, Turkish and Iranian refugees.  Given their current location in the south and their vulnerable status, these refugees may be among the first to be internally displaced and will be in acute need of physical protection.

32 C.J. Chivers, “Uprooted Iraqis See War as Path to Lost Homes,” New York Times, December 4, 2002.

33 See discussion of “Operation Provide Comfort” in Part IIIB, below.

34 See John Fawcett and Victor Tanner, “The Internally Displaced People of Iraq,” October 2002, The Brookings Institution-SAIS Project on Internal Displacement, p. 33.

35 See UNCHS-Habitat, IDP Site and Family Survey, January 2001 (estimating 805,505 internally displaced in the north); U.S. Committee for Refugees, World Refugee Survey 2002 (estimating 600,000 internally displaced in the north).

36 Human Rights Watch, World Report 2001, p. 385.

37 Based on statistics gathered by ongoing Human Rights Watch research, including a mission to Iraq in late 2002. 

38 Human Rights Watch, World Report 2002, p. 432.  See also Situation of Human Rights in Iraq, Report of the U.N. Special Rapporteur on Iraq, U.N. Doc. A/57/325, August 20, 2002.

39 Human Rights Watch, World Report 2002, p. 432.

40 United Nations High Commissioner for Human Rights, February 26, 1999.

41  Internally Displaced People: A Global Survey, Global IDP Project, November 2002, p. 173.

42 See Article 12, International Covenant on Civil and Political Rights, GA Res. 2200 A(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, p. 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, 1966, entered into force March 23, 1976.  Iraq ratified this treaty on January 25, 1971; Iran ratified it in 1975; Kuwait acceded in 1996; Syria acceded in 1969 and Saudi Arabia is not a signatory.

43 See text accompanying note 28, above for a description of international humanitarian law.

44 See Rome Statute of the International Criminal Court, 1998, Article 7, para. 1(d).

45 According to the ICRC commentary for the Fourth Geneva Convention, article 27, an occupying power may restrict the freedom of movement of civilians if circumstances so require.  But while parties to a conflict retain a great deal of discretion in their actions, “[w]hat is essential is that the measures of constraint they adopt should not affect the fundamental rights of those concerned.”

46  See footnote 29, above for a description of the Guiding Principles on Internal Displacement.

47 In November 1998, the U.N. Security Council stated that mine clearance in Iraq could take between thirty-five and seventy-five years.