X. FEAR OF RETURN TO AFGHANISTAN

With the creation of an interim government in Afghanistan on December 22, 2001, Afghans are hopeful about the future. One refugee, a doctor, told Human Rights Watch he thought that there could be peace if a Loya Jirga (national council) were to be held in Afghanistan. He said he was waiting for foreign troops to come to protect returning refugees, but for the protection to work: "the troops have to be under the control of the U.N."217 At the same time, the governments of Pakistan218 and Iran219 have made public statements indicating that refugees may be forced to return home as soon as stability returns to Afghanistan. These statements only add to the fears refugees have of being forced back to unsafe and insecure conditions in Afghanistan.

According to UNHCR and Iranian and Pakistani government officials, repatriation may begin as soon as March 2002.220 However, for many Afghan refugees that may be too soon. International standards promulgated by UNHCR require that repatriation must be conducted voluntarily, in conditions of safety and dignity.221 In addition, well over thirty U.N. resolutions and declarations call for repatriation on a voluntary basis.222 To the extent that any of the three and a half million Afghan refugees in Pakistan and Iran remain fearful about returning, they should be provided access to a refugee determination process to ascertain whether they would be entitled to recognition as a refugee, and thus to protection from return to a country where their lives or freedom are under threat.

Both refugees fleeing in the aftermath of September 11, and those who have lived in exile for years, expressed several concerns regarding return to Afghanistan. Conditions of generalized insecurity and factional fighting were often cited as abuses refugees had recently experienced or experienced in the past, and as reasons why refugees feared going back to Afghanistan. One refugee put the problem of factionalization in metaphorical terms:

I do not want to go back to Afghanistan now. The situation is complicated. They do not let people leave Afghanistan to come here and they do not let us come back. Everyone should just stay in their place and we must wait to see if the situation is clear. Even if you have only one room in your house it is not good to divide it. But this is what the fighting is doing now with Afghanistan. We do not want it like that; we do not want to be divided. We want it all to be unified.223

For the most recent refugees, the causes of flight were sometimes not the same as the reasons refugees had for fearing return. Most of the refugees interviewed by Human Rights Watch mentioned the U.S.-bombing campaign as a major reason for their flight. However, many of these same refugees and many others who fled before bombing began, also experienced violence at checkpoints, or described recent224 or previous experiences of living amidst factional fighting when asked if they would be willing to go home. One refugee said, "We are afraid to go back to fighting because in fighting the Tajiks have suffered before. But if our country is free, we will go, we do not want to be here always."225 Hamidullah said,

We are afraid to go home to Afghanistan because the situation there is not clear. We came here with a lot of difficulties and we do not have enough money to go back. We have spent our whole life in fighting. Our sons have not been to school. We are afraid of the Northern Alliance like we are afraid of the Taliban. Whenever war comes to our country we cannot let our sons go outside. If they are caught, they will be taken to the fighting.226

Other refugees who fled after September 11, and those who had been living in exile in Pakistan for many years, mentioned new fears of reprisal attacks against their particular ethnic group, especially as anti-Taliban commanders took over most of Afghanistan. Often, ethnic Pashtun refugees described new fears of being attacked because of their ethnicity or because of the assumption that they are Taliban sympathizers. One Pashtun refugee man who is forty-one years old and is from Mazar-i Sharif said he was afraid of attacks by Hazaras and Uzbeks.227 Another Pashtun man in his mid-twenties from Shabarghan said he was afraid of reprisals by "Hazaras and Shi'as."228 Zmaiya, a refugee woman, told Human Rights Watch, "We liked the Taliban because they gave us security. Now, we are afraid because the Northern Alliance does not provide security. There will be looting and fighting. I am Pashtun and not with the Taliban, but the people may think I am with them and they will punish me and become angry with me."229

Ethnic Tajik, Uzbek and Hazara refugees and the nomadic segment of the Pashtun group known as Kuchi, also mentioned ethnically-based fears associated with reprisals that could break out as a part of a generalized deterioration in law and order. Tajik refugees who had fought with the Northern Alliance cited fears of a resurgence in past animosity with the Hazara ethnic group.230 Kuchi refugees explained they feared discrimination resulting from a popular rumor circulating in Afghanistan that U.S. Special Forces disguised themselves as Kuchis and traveled with groups of the nomads as a means of infiltrating new territory.231

Other refugees were concerned about the fate of loved ones left behind due to the abusive practices of the Taliban. Despite press reports that individuals imprisoned by the Taliban were released when large cities changed hands, some refugees told Human Rights Watch that their relatives were still in jail, or that they had not been heard from since they were taken. The fate of family members, particularly when they were the main income earners for the family, and the condition of property, were two types of information refugees wished to receive before deciding whether or not to return to Afghanistan. For example, Jamila, a Tajik woman in her early thirties, originally from Bamiyan, who had been displaced to Kabul, told Human Rights Watch that soon after September 11, Taliban forces had come to her home in Kabul and asked for her husband. When he came to the door they began questioning him about his alleged support for General Dostum.232 He denied supporting Dostum, but they grabbed him and threatened him with their guns and rifles, and took him to the prison in Kabul. Jamila had not heard from her husband since then.233

Families were often separated because of the conscription policies of the Taliban. Sometimes men and boys were forcibly recruited. At other times, families had to separate when they fled Afghanistan because they could not afford to pay for the freedom of their men. The fate of those left behind was not known as of late 2001. Shamim is a sixty-year-old Tajik refugee from Nahrin in Baghlan province. She told Human Rights Watch:

The Taliban beat my thirty-year old son because he refused to fight. We had to pay money to keep him free. My son has seven children. I did not want him to fight so I promised to pay. . .to keep him at home, but we could only afford half of the required amount. When we fled Afghanistan, my son had to stay behind because he had to find the rest of the money to pay the Taliban. They told us if he left without permission or paying the debt they would burn our home.234

Finally, women refugees, particularly those who had lived in an area previously under Northern Alliance control, spoke of their fears for themselves and their daughters of sexual violence and abductions resulting from a general breakdown in law and order. One refugee woman explained,

We are afraid to go back because we fear hunger and fighting. If there is peace we will go back. We are afraid of violations against girls, and we are also afraid that people from other villages will come to our place and commit violence against us. They may try to rape me and be violent toward me.235

Some women refugees, especially those from Kabul, also explained that they feared return to the lawlessness that had existed from 1992-1996, during the nominal rule of President Burhanuddin Rabbani of the Northern Alliance. Another woman refugee put her ongoing traumatization in blunt terms, "I refuse to ever go back to Afghanistan because I hate that place. That country killed my husband. I won't ever go back."236

217 Human Rights Watch interview, Muhammed Gulgari neighborhood, Peshawar, November 15, 2001.

218 "Afghan Exiles Ponder Return: Years of Conflict Leave Unseen Scars," Denver Post, December 12, 2001; Deutsche Press Agentur, "Pakistan Starts Work on Repatriation of Afghan Refugees," January 30, 2002.

219 BBC Monitoring via NewsEdge Corporation, "Afghan Refugee Ministry and UNHCR Cooperate," January 30, 2002 (citing an Iranian government official who said, "now that relative peace has been established in Afghanistan, refugees can gradually return.").

220 UNHCR, Humanitarian Update No. 49, January 16, 2002.

221 UNHCR, Handbook on Voluntary Repatriation, 1996, §§2.2, 2.3. See also ExCom Conclusion No. 18, Voluntary Repatriation, 1980; No. 22, Protection of Asylum-Seekers in Situations of Large-Scale Influx, 1981; No. 74, General Conclusion on International Protection, 1994.

222 See e.g. A/Res/53/165 (1999); S/Res/874 (1993); A/53/Pv. 72 (1998); A/Res/50/159 (1996); S/Res/810 (1993); A/Res/44/153 (1990); A/53/Pv.95 (1999); S/Res/1258 (1999); A/Res/53/163 (1999); S/Res/ /1272 (1999); S/Res/ /1264 (1999); A/Res/48/117 (1994); A/Res/49/174; S/Res/1255 (1999); S/Res/1097; A/Res/48/117 (1994); S/Res/1233 (1999); E/Res/1991/5 (1991); A/Res/50/149; S/Res/1014 (1995); S/Res/1100 (1997); A/Res/53/162 (1999); A/Res/48/117 (1994); A/Res/49/35 (1995); A/Res/51/114; A/Res/50/200; S/Res/1080 (1996); S/Res/1270 (1999); A/Res/43/206 (1989); A/Res/45/176 (1991); A/Res/46/79 (1992); A/Res/51/112 (1997); A/Res/54/182 (2000); A/Res/51/30 J (1997); A/Ac. 96/199 (1963); A/Res/41/195 (1987); S/Res/1239 (1999); A/S-21/Pv. 9 Ga.

223 Human Rights Watch interview, new Jalozai camp, November 20, 2001.

224 See, e.g. Agence France Presse, "Fighting Erupts Between Afghan Warlords," January 30, 2002 (describing heavy factional fighting in the towns of Gardez and Kunduz between "men loyal to rival ethnic Pashtun warlords.").

225 Human Rights Watch interview, Shamshatoo camp, November 17, 2001.

226 Human Rights Watch interview, Tajarabat, Peshawar, November 18, 2001.

227 Human Rights Watch interview, Killi Faizo camp, December 5-6, 2001.

228 Human Rights Watch interview, Killi Faizo camp, December 5-6, 2001.

229 Human Rights Watch interview, new Jalozai camp, November 20, 2001. Such fears were also confirmed by press reports of the targeting of ethnic Pashtuns, which caused them to flee Afghanistan. See, e.g., Haroon Rashid, "Pakistan Offers Refugees Mixed Prospects," The Star Ledger, January 21, 2002 (quoting a Pashtun refugee who fled on about January 14, 2002, and who said, "Dostum's men snatched our cattle, we were beaten up and some of our colleagues were killed after labeling us Taliban.").

230 Human Rights Watch interview, Quetta, November 29, 2001.

231 Human Rights Watch interview, Quetta, November 28, 2001.

232 General Abdul Rashid Dostum was named Afghanistan's deputy defense minister in late 2001, and he is in control of Mazar i-Sharif and the surrounding countryside. In early 1992, Dostum joined forces with the Hazara faction Hizb-i Wahdat and Tajik leader Ahmed Shah Massoud to form a coalition they called the Northern Alliance.

233 Human Rights Watch interview, Peshawar, November 15, 2001.

234 Human Rights Watch interview, Shamshatoo camp, November 17, 2001.

235 Human Rights Watch interview, Shamshatoo camp, November 17, 2001.

236 Human Rights Watch interview, Kotkai camp, November 25, 2001.