VI. INTRODUCTION TO REFUGEE PROTECTION IN IRAN AND PAKISTAN

Throughout the world, there are many situations in which refugees have fled conditions of generalized insecurity and conflict similar to those in Afghanistan.44 When refugees flee in large numbers to neighboring countries, particularly in less developed regions of the world, it is not usually possible to ascertain whether every person involved in the influx actually meets the criteria for refugee status. Low-income countries frequently do not have the logistical, administrative, or financial capacity to undertake individual status determinations. Instead, there is a general assumption that when conditions are objectively dangerous in a country of origin, refugees are recognized on a prima facie basis, without the need for further proof, and are afforded protection accordingly.45 Conflict, such as that between Taliban and Northern Alliance forces, the destruction caused by the U.S.-led bombing campaign, and the generally high level of insecurity, are precisely the kind of conditions that have given rise to prima facie refugee status in the past.

Unfortunately, both Iran and Pakistan have been inconsistent, even negligent, in their recognition of the legal status of Afghan refugees. Amid increasing hostility to the presence of the refugees, which worsened in the aftermath of September 11, both governments have passed domestic laws and adopted policies that by their terms or in practice are abusive of refugees' rights.

By keeping their borders closed, both governments have interfered with the right to seek asylum. In addition, by pushing newly arriving refugees back into Afghanistan, or summarily returning them without legal process or judicial review, the governments have violated nonrefoulement obligations --- the most fundamental norm of refugee law that protects individuals from being sent back to a place where their lives or freedom are under threat. The conditions that existed during the U.S. bombing campaign are examples of such threats. Moreover, the fears that refugees have about other kinds of insecurity and ethnically based reprisals are likely to continue in the future and will also constitute significant threats requiring protection from refoulement.

Iran and Pakistan have long stated that they have insufficient resources to deal with the over three and a half million Afghans within their territories, and both have charged the international community with failing to provide aid and financial assistance, thereby failing to share the responsibility for Afghan refugees. For example, Hassan Ali Ebrahimi, Iran's interior minister for Afghan affairs, said on November 12, 2001, "All expenses are on the shoulders of Iran. There is a lot of talk but no action."46 Although there are some discrepancies in the claims made by both governments about shortfalls in international assistance,47 before September 11, international support for Afghan refugees was considerably lacking.48 After the inception of the U.S.-led bombing campaign on October 7, aid for Afghan refugees and those internally displaced increased, together with the level of international focus on the region, yet this was not enough to convince Iran and Pakistan to open their borders or to provide legal protection to greater numbers of refugees. The previous failure of the international community to provide sufficient support to Pakistan and Iran in meeting the needs of Afghan refugees may well have contributed to these two countries' increasingly hardline policies.49

44 UNHCR, State of the World's Refugees, 1997, Chapter 2, p. 52.

45 See e.g. ExCom Conclusion No. 22, Protection of Asylum-Seekers in Situations of Large-Scale Influx, 1981 (noting that persons who "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country" are asylum-seekers who must be "fully protected," and "the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed.").

46 Soraya Sarhaddi Nelson, "Iran Sees Need for Refugee Aid Waning Like Taliban Migrants," Los Angeles Times, November 14, 2001.

47 Iran's interior minister stated that the entire global contribution to refugees in Iran was U.S. $12.4 million, donated during 2001 through UNHCR, WFP and NGOs, but estimated that Iran's total costs amounted to U.S. $ 2.9 billion. See "Interview with Iranian Interior Minister," IRIN News Release, November 13, 2001, at www.reliefweb.int. This does not correspond with UNHCR's mid year budget of U.S. $ 16.3 million. See UNHCR, Mid-Year Progress Report, Iran, 2001.

48 U.S. Committee for Refugees, Afghan Refugees Shunned and Scorned, 2001, p. 5 (noting that "since the mid-1990s, donors have substantially reduced assistance to Afghan refugees, leaving Pakistan to shoulder much of the economic burden of their presence.").

49 The international community is obliged to assist host countries to meet the humanitarian needs of large refugee influxes. The Preamble of the Refugee Convention underlines the "unduly heavy burdens" that sheltering refugees may place on certain countries, and states that "a satisfactory solution" to the refugee problem "cannot. . .be achieved without international cooperation." Numerous ExCom Conclusions also reiterate the need for international responsibility sharing to assist host countries in coping with large refugee influxes. See, e.g. ExCom Conclusion No. 52, International Solidarity and Refugee Protection, 1988.