At the end of 2001, the largest populations of Iraqi refugees outside the Gulf region were hosted by Sweden (25,900), the Netherlands (26,100), and the United States (19,100).123 Denmark (12,600), the United Kingdom (12,000), Norway (8,200), Australia (10,000) and Canada (6,000) also hosted significant numbers of Iraqi refugees. 124
In the event of an armed conflict in Iraq, governments outside the immediate region must ensure that refugees are able to reach protection. This will require high-level diplomatic efforts to open borders in the region of origin and in countries of transit, and to ensure that all groups, such as Kurdish and Shi’a refugees, are able to find effective protection. Industrialized states must keep their borders open to refugees, and immediately lift immigration measures, including visa restrictions, carrier sanctions, detention and interception policies, that effectively deny access to those seeking safe haven. Australia and European Union member states have in recent years increasingly invoked “third country” rules to require that asylum seekers find refuge in the first country they entered upon fleeing their country of origin; those who travel on are swiftly sent back to that country.
In November 2002, the E.U. Council of Ministers mandated the European Commission to negotiate readmission agreements with several states, including Turkey, which E.U. member states may hope to use as a third country to which they can return Iraqi asylum seekers. As previously described, however, based on its past record in treating asylum seekers, particularly those from Iraq, Turkey cannot be counted on to provide protection from refoulement. In the event of war in Iraq, no third country rules should be applied to Iraqi asylum seekers who will inevitably have to transit other countries to reach Australia, North America and Europe. As detailed below, a number of European governments and Australia have announced plans to continue to repatriate failed Iraqi asylum applicants.
Under present Australian policy, refugees, including those from Iraq, can only arrive in Australia by air, not boat. This effectively means that only those holding valid travel documents are able to seek asylum there. Any new arrivals by sea would either be detained on the “excised” Australian territory of Christmas Island where they would have their claims determined without reference to Australian law, or they would be detained in one of the Australian-funded “offshore” sites in the Pacific (Nauru or Papua New Guinea). In the past, refugees arriving by boat have been pushed back by Australia to Indonesia. As of January 2001, there were several hundred Iraqis in Indonesia who had been turned back by Australia. Indonesia is not a signatory to the Refugee Convention and there are no domestic laws providing for the legal entry or residence of refugees.125
Many Iraqis already admitted to Australia have been awarded only temporary protection visas, a status which requires each recognized refugee to periodically re-prove her need for continued international protection. The first temporary protection visas are now due for renewal, and if war starts in Iraq it is likely that decisions on whether to extend them will be frozen until stability is restored. If the renewal hearings occur after the end of a conflict in Iraq, the burden of proof will be unfairly placed on the individual refugee to show why he or she should not be returned immediately, making many refugees fearful of forced returns.
The Australian government has already put considerable pressure on rejected Iraqi asylum seekers (including those pursuing final appeals) to return home, despite the harrowing consequences likely to await anyone returned to Iraq. Most of these rejected asylum seekers are in detention, either in Australia or in the remote Pacific centers where they have little ability to communicate with the outside world and no access to lawyers. Some have been in detention under harsh conditions for years and the government is now offering some individuals assistance with “voluntary return” to other countries in the Middle East of which they are not nationals, such as Syria or Yemen.
A number of European states have shown a willingness during the past year to return rejected asylum seekers to Iraq. Germany, Denmark, Luxembourg and Switzerland, have indicated that there is an “internal flight/protection/relocation alternative” for certain Iraqis in the Kurdish-controlled zone of northern Iraq. This perspective is reflected in the E.U.’s Action Plan on Iraq,126 which states that “Northern Iraq can be seen as an internal flight/internal relocation alternative for those who fear persecution at the hands of the regime in Baghdad, except in the case of specified at-risk groups and after a case-by-case assessment.” E.U. member states have rejected a number of Iraqi claims on this basis and returned asylum seekers to this area.
In August 2002, Danish Integration Minister Bertel Haarder announced that Denmark planned to send home Iraqis whose asylum requests have been rejected, despite the threat of a U.S. attack on Iraq, stating that “the potential risks of war do not in themselves justify asylum.”127 According to an August report from the Danish immigration office, some Iraqi refugees can return to the country without facing any risks.128 Denmark announced in May that it would not deport twenty-six Iraqis on hunger strike in the Copenhagen cathedral, who were protesting the slow treatment or rejection of their asylum claims. Integration Minister Bertel Haarder stated that Denmark would “try to send back as many refugees as possible but will not force them to leave.”129 It was reported that this year alone, 228 Iraqi refugees refused to return to their homeland after their asylum claims were denied, according to Danish police.130
On November 8, 2001 Greece signed a readmission agreement with Turkey, which allows the Greek government to intercept (often at sea) individuals who departed from Turkey, and return them to Turkish territory. One such interception and return occurred on November 21, 2001, when forty-two migrants were intercepted as they were heading for the Greek island of Kos from the nearby Turkish port of Bodrun. Partly because of the readmission agreement, Greece purchased ten patrol boats for the purpose of intercepting people trying to reach its territory.
In 2001, Norway’s strict policy toward asylum seekers from northern Iraq was further tightened and as of April 2001, one-year residence permits granted to Iraqi asylum seekers were not being renewed and applicants were being rejected if they had no individual protection grounds. Under Norway’s one-year permit system, Iraqi refugees also had no right to reunify with their family members. Of the 1056 Iraqis who applied for asylum in Norway in 2001, only 2.5% were recognized as Convention refugees;131 however many others were granted humanitarian protection.
In April 2002, the Swedish Migration Minister Jan O. Karlsson said that Sweden would recommence deportations of asylum seekers from Iraq. Several thousand Iraqi asylum seekers who have been refused residence in Sweden are waiting to be deported to Iraq. Until now this has not been possible for practical reasons, such as the no-fly zone over Iraq. According to Karlsson, as of April 2002, the situation in northern Iraq had stabilized, making it possible to people to that region.132 At the same time, Sweden granted Kurds from the Kurdish-controlled zone in northern Iraq permanent permission to remain in the country.
In 2001, the United Kingdom determined that the Kurdish-controlled zone of northern Iraq was increasingly stable and was said to be exploring options of return, a result of which was a drop in its recognition rate for Iraqi refugees. In July 2002, the British government announced that it planned to deport Iraqi Kurdish refugees who failed in their asylum bids. While the UK Home Office reportedly accepted that some northern Iraqi refugees genuinely needed protection, a spokesperson stated that other asylum seekers from Iraq did not meet the criteria of the Refugee Convention.133
Just over 3,000 new Iraqi refugees arrived in the United States in 2001. Of these, only 815 were individuals who arrived at U.S. airports or borders.134 The remainder arrived through the resettlement program, presumably from countries in the immediate region surrounding Iraq (see above). A United States decision to go to war with Iraq should include an increased recognition of its obligation to resettle refugees from the region. However, the United States has only allocated 70,000 places for resettled refugees from throughout the world in 2003. Refugees from South Asia and the Middle East have been especially affected by an increase in background checks on resettled refugees that has slowed down resettlement processing and left many refugees in dangerous situations. On January 10, 2003, the U.S. State Department introduced – and withdrew without comment less than twenty-four hours later – a policy that would have denied admission to Iraqis already identified as refugees in need of resettlement.135
The Universal Declaration of Human Rights, which is widely recognized as customary international law, provides in Article 14 that “everyone has the right to seek and enjoy in other countries asylum from persecution.” This principle of international human rights is at risk when governments impose visa requirements, security checks, and other barriers to entry that effectively prevent persons from applying for asylum. The right to seek asylum is also violated, often together with the principle of nonrefoulement, when individuals cannot access fair and impartial asylum determination procedures.
Temporary protection schemes should not be used to indefinitely or unreasonably postpone consideration of applicants’ claims to full refugee status and recognition of the rights to which they are entitled. Where temporary protection regimes are in place, governments should allow individuals fearing persecution on Refugee Convention or other relevant grounds access to individualized determinations for full refugee status within a set period of time.
A number of countries have made accessing fair procedures much more difficult for refugees: visa restrictions and "safe third country" rules continue to obstruct their flight; expedited procedures are applied in many European airports and Australia has excised certain territories from its migration zone; the U.S., Australia, and some European states continue to employ administrative detention as a deterrent; and officials in many countries have made sweeping generalizations about the relationship between terrorists and illegal migrants.
Finally, industrialized countries have nonrefoulement obligations stemming from the Refugee Convention, the Convention against Torture, and for European states, the European Convention on Human Rights. Any decisions to return Iraqis to their home country or neighboring countries must not violate this fundamental obligation.
UNHCR guidelines state that asylum seekers should only be detained in exceptional circumstances and that refugee children should never be detained. The right to liberty and security of person is guaranteed under the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR provides that everyone “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.” To ensure freedom from arbitrary detention, Article 9 further requires that detention must be examined for its lawfulness by an impartial adjudicator. The U.N. Human Rights Committee has expressly stated that the guarantees of Article 9 apply to aliens.
UNHCR guidelines on the detention of asylum seekers also stipulate that minimal procedural safeguards must be guaranteed. These include the right to an automatic independent judicial review of all decisions to detain followed by periodic reviews of the necessity to continue to detain, and the right of all asylum seekers to be informed of their right to legal counsel and to be provided free legal assistance where possible. Policies of Australia, the United States, and other governments in Europe to detain asylum-seekers with severely limited access to review by an impartial adjudicator violates the prohibition against arbitrary detention.
If war were to occur in Iraq, the European Union Council of Ministers would likely activate its “Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.”136 This Directive can be triggered by an imminent as well as an actual mass influx, and should be applied “in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation.” Human Rights Watch emphasizes that the postponement of access to individual determinations should occur only if and when European asylum systems are genuinely overwhelmed, not as a way of avoiding granting Convention Status to deserving claims.
The Directive may be triggered by either spontaneous arrivals in the European Union or by an evacuation program implemented elsewhere (such as the region surrounding Iraq should there be a war), and it provides that member states will share the responsibility for hosting the displaced persons “in a spirit of Community solidarity.” The costs would be shared via the European Refugee Fund, and persons would probably be distributed (with or without their consent) throughout the E.U. on the basis of respective statements of reception capacity.
In addition, European states will need to revisit current policies based on the existence of an “internal flight alternative”/ “internal protection alternative” in Northern Iraq if the situation becomes unstable. It would be wholly inappropriate in the context of an international armed conflict, particularly should Iraq use population displacement or attacks on its own citizens as tactics in a war, for European asylum states to consider the supposed opportunities of refugees to flee to other areas inside Iraq, including “safe areas,” when assessing the credibility and validity of asylum claims. Finally, moves to suspend asylum determinations in Europe, while halting dangerous returns to the region, nevertheless will cause asylum seekers to live without certain fundamental rights and legal protections for the duration of the conflict.
All rejected asylum seekers possess human rights, including the right to be treated with dignity during detention and deportations, the right to be free from arbitrary detention, and the right to be afforded basic socio-economic rights such as education and urgent medical care. States must continue to respect such basic standards, regardless of the scale of any new refugee crisis in Iraq.
As previously mentioned, a number of European states currently maintain that Iraqi asylum seekers have a flight alternative in Iraq and have rejected asylum claims on that basis. In the context of a new crisis or conflict, it is very likely that such an assessment and possible returns based on such an assessment will need to be frozen. Rejected asylum seekers may need to lodge new asylum claims based on changed circumstances and must be permitted to do so, at least as soon as new arrivals are permitted to lodge their claims.
During the course of any crisis or conflict, it will be essential that those falling outside the scope of the 1951 Refugee Convention but still in need of protection, for example on the basis of Article 3 of the Convention against Torture or Article 3 of the European Convention on Human Rights, are granted some form of subsidiary or complementary status, with broadly equivalent rights to those of Convention refugees. Deserters from the Iraqi army, in particular, may require protection beyond the usual terms of the Refugee Convention.
Following the end of an armed conflict, it is usually both a matter of humanitarian principle and pragmatism that asylum states should wait until conditions allow for voluntary return in true safety and dignity before enforcing or actively promoting mass returns. The current pressure on Afghans to return from many asylum states indicates a tendency toward unnecessary impatience, which results only in fresh cycles of internal displacement and may put returnees’ lives at risk. Inversely, the willingness of Iraq to accept voluntary returns of persons in conditions of safety and dignity, to arrange for property returns, and to make arrangements for property dispute resolution, without discrimination, will be, as always, important indicators of the government's respect for human rights.
123 See UNHCR, Statistical Yearbook 2001, October 2002, p. 92.
124 See UNHCR, Statistical Yearbook 2001, October 2002, p. 92.
125 Indonesian Immigration Act No.9/1992, Sections 8 and 24 define who is permitted and refused lawful entry to Indonesia and clearly make no provision for a protection visa or any other form of international asylum.
126 See E.U. Action Plan on Iraq, Doc. 11425/99. The 46-point Action Plan was adopted by the E.U. General Affairs Council on January 26, 1998, in response to Germany's long-standing demand for an E.U. initiative to stem the movement of Kurdish refugees into the Union via the south. In particular, it was a reaction to the arrival in Italy, on December 28, 1997 and January 1, 1998 of two large boat-loads of refugees and migrants, mostly Kurds from Turkey and northern Iraq. The Plan was widely criticized by human rights groups for concentrating on the tightening of border surveillance and policing while failing to address the root causes of the movement.
127 See “Denmark to send Iraqi asylum seekers home despite threat of war,” Agence France-Presse, August 29, 2002
129 See “Iraqi refugees end hunger strike in Denmark,” Agence France-Presse, May 30, 2002
131 Memo from Information Office, European Council on Refugees and Exiles (ECRE), November, 2002
132 See “Sweden will recommence deporting Iraqi asylum seekers,” BBC Monitoring Europe, April 10, 2002
133 See Associated Press, “UK: Government plans to deport Iraqi Kurdish refugees who fail in asylum bid,” July 17, 2002
134 See UNHCR Population Statistics, “Indicative Refugee Population and Major Changes by Major Origin and Country of Asylum,” June 6, 2002.
135 See e.g. “U.S. Reopens Door to Iraqi Refugees,” Los Angeles Times, January 11, 2003; U.S. Committee for Refugees, “USCR Acutely Concerned Regarding U.S. Government Decision to Bar Admission of Iraqi Refugees,” January 10, 2003; Brandon Sprague, “U.S. Won’t Let Iraqi Refugees In, Group Say / No Explanation Given for Apparent Change of Policy,” San Francisco Chronicle, January 11, 2003 (citing a State Department memo providing for the freeze on admissions and citing a UNHCR confirmation of the U.S. government action).
136 E.C. Council Directive (2001/55/EC).