As noted above, the north of Iraq is currently home to several hundred thousand internally displaced persons, most of whom are Kurds. In 1991 large numbers of civilians attempted to flee beyond the reach of Iraqi government violence by leaving the country altogether. Some crossed into Turkey, others were held back on the Iraqi side when Turkey closed its borders. There was a grave humanitarian crisis and the loss of an estimated 1,500 lives (mainly the very young and the very old) as the displaced accumulated in the mountainous border area in cold winter weather without food, shelter or health provision. The U.S. and the U.N. intervened to establish a so-called "safe area" in which the displaced trapped in northern Iraq were to be protected from further attack while receiving aid to meet their humanitarian needs.
In the event that one or more of Iraq’s neighbors prevent a massive flight across national boundaries, the U.N., the United States or other international actors may decide to establish “safe areas” in Iraq for persons who are in “refugee-like situations.” While the concept of a “safe area” is not recognized under international humanitarian law, such areas were created in northern Iraq in 1991 and in Bosnia-Herzegovina in 1993 with some success and much tragedy. Evidence that they are being contemplated anew surfaced in November 2002 when the government of Turkey announced a plan to send troops into northern Iraq in order to set up thirteen camps for displaced persons inside Iraqi territory. Only if these camps became full would the Turkish authorities consider allowing some Iraqis to cross the border to five additional camps. Turkey claimed that such a plan was necessary “to take measures to keep [displaced Iraqis] away from our border.”48 Since this announcement, the Turkish Red Crescent has been working to prepare for the arrival of 500,000 displaced Iraqis to Turkish-run camps in northern Iraq.49
Recent history gives reason to be concerned about prospects for “safe areas” in Iraq. Following Iraq’s defeat in the Gulf War in 1991, Kurds in northern Iraq staged an uprising that was brutally crushed by the central government. Approximately 450,000 Kurds attempted to flee Iraq to Turkey.50 Those who managed to reach Turkey were held in the mountainous border or were pushed back into Iraq by Turkish soldiers, in violation of the fundamental international refugee law principle of nonrefoulement, which is now an accepted principle of customary international law.51
While some refugees were stopped on the Turkish side of the border at places like Pirinceken or Kayadibi, Turkish forces kept many others inside Iraq. Even those who had been allowed to enter Turkey were trapped in the border area where they were exposed to cold, lack of food and sanitation, and poor medical care. In early 1991, death rates were as high as 400 persons per day.52
In April 1991, the United States established “Operation Provide Comfort” to provide food, shelter and clothing to Kurds in northern Iraq.53 At the outset of the operation, humanitarian conditions in the northern “safe areas” were extremely difficult. A civil engineer working with the humanitarian relief agency Médecines sans Frontières said, “these mountains are the worst possible place for a camp. There is no water and it is not flat. Sanitation is impossible because the tents are packed too close together.”54 By late spring 1991, however, humanitarian conditions improved in the “safe area.” Given the categorical withdrawal of international protection for refugees by Iraq’s neighbors, the “safe area” may have been the next best option.
While Operation Provide Comfort addressed many issues regarding food, shelter and water, it left protection issues unanswered. The government of Iraq was hostile to the establishment of the “safe area,” and argued it was an infringement upon its sovereignty.55 Given this hostility, it was not surprising that approximately 200 armed Iraqi police under the command of the central government moved into the northern “safe area” in April 1991.56 In July 1991, the Allied forces withdrew and between 350 and 500 U.N. observers were deployed to monitor Iraqi compliance with Resolution 688 in the northern zone.57 In October 1991 the government withdrew from the northern provinces. In 1992, the Turkish government, claiming that Kurdistan Workers’ Party (PKK) guerrillas were hiding out in northern Iraq, sent in its army to attack them. Sporadic fighting between the two main Kurdish parties: the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK) occurred in 1993 and 1994. Again, on March 20, 1995, responding to what it considered threats to its territory, Turkey sent some 35,000 troops into the “safe areas.”58 Repeated Turkish incursions and the internal fighting in the region threatened security and reduced relief work and village reconstruction.
By 1996, no significant international military presence remained in the northern areas, but the flight-exclusion zone remained in place. However, Iraqi government forces entered the city of Arbil on August 31, 1996 at the request of the Kurdistan Democratic Party, which asked for help in ousting forces of the Patriotic Union of Kurdistan from the city at the height of the inter-Kurdish conflict. Hundreds of people were arrested and scores were summarily executed59 when the Iraqi government forces surrounded the city of Arbil.60 Two relief workers were beaten and killed in the attacks, and Iraqi agents searched the offices of humanitarian organizations, looking for personnel files, confiscating computers, and interrogating and threatening staff.61 The situation became so perilous for certain Kurds, largely employees of U.S. aid agencies and their families, that the U.S. government agreed to evacuate 6,500 people.62
Despite these failings, observers variously cited Operation Provide Comfort as the “most effective,”63 or “the least bad of several bad”64 alternatives considered by the international community to protect displaced Iraqis since Turkey had not met its obligations under international law.
If, in the event of war Turkey or any other government creates a “safe area,” that government will have the burden of ensuring that all necessary assistance is provided and that such camps are secure. Past international experience has shown that “safe areas” often do not remain safe. “Safe areas” often pose significant dangers: if adequate safeguards are not in place, the promise of safety can be an illusion and “safe areas” can come under deliberate attack. There may also be pressures on humanitarian agencies to cooperate with military forces in ways that compromise their humanitarian principles, or agency personnel and access may be severely hampered by military operations. Finally, the presence of military personnel can make the location a military target as opposed to a “safe area.”
One example which, while extreme, shows all of these problems was the “safe area” in the Srebrenica enclave of Bosnia-Herzegovina. The failure of U.N. peacekeepers to protect Srebrenica led to the single biggest atrocity of the 1992-1995 war in Bosnia-Herzegovina: the premeditated mass execution of more than 7,000 men and boys.65 In addition, abuses attending the occupation of the “safe area” included rape and the terrorization of women, children and the elderly.66 The example of Srebrenica highlights the dangers of creating a “safe area” without making adequate provision for the safety of displaced persons.
Those who seek protection internally should never be prevented or dissuaded from seeking international refugee protection. States, in turn, cannot justify keeping their borders closed to refugees on the ground that they have set up internal “safe areas.” Turkey67 and Iran (see discussion in Section IV B below) have indicated that they may not allow refugees into their territories. Especially as members of the UNHCR’s ExCom,68 Turkey and Iran have obligations under international refugee law to keep their borders open and to “always admit [asylum seekers] at least on a temporary basis and provide them with protection. . .without any discrimination,” while other governments are obliged to “take all necessary measures” to assist such host countries.69 If any government forces refugees who have entered its territory, or who are standing at its borders, to return to conditions that are not safe, it will violate their obligations under international refugee law.70
It is critical that host countries open their borders to refugees and that the international community provide the support necessary to ensure that such countries have the resources to cope with any refugee influx. If the international community directly or indirectly supports the closure of borders and the establishment of in-country camps as an alternative to open borders, it will set a damaging precedent and send a dangerous message to countries elsewhere in the world facing large-scale refugee arrivals. Such practices could permanently erode the institution of asylum that is so fundamentally important to protect millions of people who flee persecution and human rights violations worldwide.
48 Dexter Filkins, “Turks, Fearing Flow of Refugees, Plan Move Into Iraq,” New York Times, November 23, 2002 (citing regional governor of southeastern Iraq).
49 See “Turkey’s Iraq Decision Still Pending,” Turkish Daily News, December 25, 2002.
50 At this same time, Iran permitted hundreds of thousands of Iraqi refugees to cross the border to safety.
51 The customary international law norm of nonrefoulement protects refugees from being returned to a place where their lives or freedom are under threat. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That nonrefoulement is a norm of international customary law is well established. See e.g. “Problems of Extradition Affecting Refugees,” ExCom Conclusion No. 17, 1980; ExCom General Conclusion on International Protection, 1982; Encyclopedia of Public International Law, Vol. 8, p. 456. UNHCR's ExCom stated that nonrefoulement was acquiring the character of a peremptory norm of international law, that is, a legal standard from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. See ExCom General Conclusion on International Protection No. 25, 1982.
52 See Centers for Disease Control, “International Notes Public Health Consequences of Acute Displacement of Iraqi Citizens,” Morbidity and Mortality Weekly Report, July 5, 1991 (noting that out of an approximate population of 400,000, crude mortality rates in April ranged from 4.0 to 10.4 per 10,000 per day).
53 U.N. Security Council Resolution 688, adopted on April 5, 1991, authorized the establishment of the northern Iraq “safe area” and gave general authorization for the humanitarian intervention to begin to help the stranded would-be refugees. On April 18, 1991, U.N. and Iraqi authorities signed a Memorandum of Understanding, authorizing U.N. humanitarian operations along Iraq’s northern borders. Iraq committed to “facilitate the safe passage of emergency relief commodities throughout the country.” The parties subsequently agreed in May 1991 that 500 unarmed U.N. guards would be deployed to act as “moral witnesses” to inspire confidence among the refugees located in the “safe area.” An air-exclusion zone was also imposed north of the 36th parallel. See United Nations Security Council Resolution 688, April 5, 1991, paras 3-6; “Survival is Harsh, Recovery Slow in Hard Hit Areas,” U.N. Chronicle, September 1991.
54 “GIs, Kurds Find Kinks in ‘Operation Comfort,’” Washington Post, April 18, 1991.
55 See e.g. Oscar Schachter, “United Nations Law in the Gulf Conflict,” American Journal of International Law, July 1991, p. 468–470.
56 See “Kurds Deserve a Safe Haven,” Chicago Tribune, April 14, 1991.
57 See “Allies End Three-Month Presence in Kurdistan on Optimistic Note,” Agence France-Presse, July 16, 1991.
58 See “US Protection of Kurds Succeeds - But How Does It End?” Washington Post, April 4, 1995. See also UNHCR, The State of the World’s Refugees, 2000, p. 216.
59 See Bill Frelick, “Down the Rabbit Hole: the Strange Logic of Internal Flight Alternative,” U.S. Committee for Refugees, World Refugee Survey, 1999.
60 See UNHCR, The State of the World’s Refugees, 2000, p. 217.
61 See Bill Frelick, “US Must Rescue Kurds Who Trusted U.S. Employers,” November 8, 1996 (available at http://www.refugees.org/ news/op_eds/ 110896.htm).
62 See Arthur Helton, The Price of Indifference, 2002, p. 174.
63 See e.g. Bill Frelick, “Down the Rabbit Hole: the Strange Logic of Internal Flight Alternative,” U.S. Committee for Refugees, World Refugee Survey, 1999.
64 See Arthur Helton, The Price of Indifference, 2002, p. 173.
65 See Human Rights Watch/Helsinki, Bosnia-Herzegovina: The fall of Srebrenica and the failure of U.N. Peacekeeping, Vol. 7, No. 13, October 1995. On August 2, 2001, the International Criminal Tribunal for the former Yugoslavia delivered its first ever genocide conviction for crimes committed in the wake of the 1995 capture of Srebrenica by the Bosnian Serb Army. See also International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radislav Krstic, Judgement, August 2, 2001.
66 See Human Rights Watch/Helsinki, Bosnia-Herzegovina: The fall of Srebrenica and the failure of U.N. Peacekeeping, Vol. 7, No. 13, October 1995, p. 26-7.
67 See text accompanying footnotes 48-49, above.
68 For a description of ExCom, see note 2, above.
69 See “Protection of Asylum-Seekers in Situations of Large Scale Influx,” ExCom Conclusion No. 22, 1981, para. IIA(1) and IV(1). See also “Temporary Refuge,” ExCom Conclusion No. 19, 1980, para. (b)(i).
70 See note 51, above for a discussion of the norm of nonrefoulement. Although Turkey is party to the Refugee Convention (where this norm is codified), since it maintains a geographical limitation on its obligations under the Convention to the effect that it only recognizes refugees fleeing Europe, Turkey’s nonrefoulement obligations are based on customary international law.
