II. ENTRY TO AND CONDITIONS IN JORDAN
The harassment and physical insecurity documented in this report and experienced by Palestinians, Iranian Kurds, and other non-nationals inside Iraq prompted some of them to flee Iraq for Jordan. This section describes how they have been received and treated in Jordan.
Prior to the U.S.-led war in Iraq, Jordan had prepared for a refugee influx with the help of the United Nations High Commissioner for Refugees, the International Organization for Migration, as well as several non-governmental organizations such as Médecins Sans Frontières, Oxfam, Jordanian Red Crescent Society, International Federation of Red Cross and Red Crescent Societies, Médecins Du Monde, Japan Platform, and the Hashemite Charity Organization.
Camps were set up, across from the border crossing of al-Karama between Iraq and Jordan. Space for approximately 10,000 new arrivals was provided near al-Ruweished, which is the last Jordanian town before the border with Iraq, in two camps: one for Iraqi refugees (al-Ruweished Camp A) and one for third country nationals (al-Ruweished Camp B).48 Starting from March 20, the first wave of refugees fleeing the conflict and insecurity in Iraq were third country nationals, coming originally from countries like Sudan, Somalia and Eritrea. These third country nationals were housed at al-Ruweished Camp B. The main functions in this camp were coordinated by the International Organization for Migration.
As of this writing, a third makeshift camp has been established in the no-man's land between Jordan and Iraq, because the Jordanian authorities have refused to allow the Iranians sheltering there to enter the country. The camp holds some 1,136 people, almost all Iranian Kurds who had been living in Baghdad's al-Tash refugee camp since 1991. Approximately forty people are from the Iranian opposition group Mojadehin e-Khalq, a group listed on the United States' list of terrorist organizations.50 UNHCR and relief organizations such as Médecins Sans Frontières and Oxfam worked to deliver water and medical assistance to them in their windswept location, in the no-man's land near the Jordanian border. Due to time constraints, Human Rights Watch did not request permission to conduct research in this camp.51
The conditions at all three camps are difficult due to the harsh weather. Frequent windstorms whip fine sand into every tent, and some of the humanitarian aid workers have resorted to wearing goggles in order to work in the difficult conditions. Respiratory problems among camp residents are growing. As summer approaches, the heat will become debilitating. Scorpions are also a concern to the refugees, who are accustomed to a more urban lifestyle. Children, who make up a high percentage of those trapped in the no-man's land camp, are at special risk of illness and death in these conditions.
As of May 1, the Jordanian authorities allowed some 550 Palestinians to enter al-Ruweished Camp A.53 In subsequent days, almost all the Palestinians resident in the no-man's land were allowed in to the country. However, they left behind some 1,136 Iranian Kurds who were refused entry by the Jordanian government.
With this part of their ordeal behind them, the Palestinians were presented with a new challenge. In order to enter Jordan, many claimed they had to sign a vaguely-worded waiver undertaking to return to Iraq once the current crisis was over.54 Neither Human Rights Watch nor UNHCR was able to view a copy of this document, since it had been signed by each Palestinian family as they entered the country, and subsequently collected by Jordanian officials. However, the vague wording in the waiver, as confirmed to Human Rights Watch by several refugees, meant that the Palestinians agreed to return to Iraq when the situation there stabilized. The tenuousness of Jordan's offer of asylum was exacerbated by a time limit originally suggested by UNHCR itself. In the first days of the conflict in Iraq, on March 26, UNHCR recommended to all governments that individuals fleeing Iraq should be afforded temporary protection for a period of three months, at least until June 25.55 It is unclear what the Jordanian government will do with the Palestinians when this time period expires.
The Palestinians who fled Iraq for Jordan arrived with a variety of identity documents. Human Rights Watch researchers were shown passports from other middle eastern countries by a few of the refugees. The vast majority, however, have special travel documents issued by the government of Iraq and recently renewed in 2002. These travel documents, the Palestinians explained to Human Rights Watch, allowed them to prove their identities to Iraqi authorities, but they were not sufficient documents with which to apply for visas to exit Iraq under the Saddam Hussein government.56 Therefore, the Palestinians living in Iraq were unable to leave or enter the country freely.
Human Rights Watch is particularly concerned that the Palestinians will be coerced to return to Iraq after June 25, or as soon as the government of Jordan unilaterally decides the situation is safe enough. Involuntary returns of refugees to any territory where they may potentially face persecution violates international standards that require any such returns to be voluntary, on the basis of accurate information about conditions in the potential country of return, and without negative push factors, such as reductions in humanitarian relief supplies. All such voluntary returns should be in conditions of safety and dignity, which necessitates careful human rights monitoring and protection.57
Third Country Nationals
The numbers of third country nationals in Jordan peaked at about 600, because they began to leave Jordan even as others were still arriving As of April 28, some 1,116 third country nationals had passed through Jordan, although only 218 remained in the country.62 The swift reduction in third country nationals was due to a policy set up by the government of Jordan, with the cooperation of the International Organization for Migration (IOM).63 The policy focused on ensuring that the third country nationals left Jordan for their countries of origin with the assistance of the International Organization for Migration, preferably within seventy-two hours.64 The third country nationals were given an opportunity to decide for themselves whether or not they wanted to return home. However, the seventy-two hour deadline created time pressure that called into question whether individuals had adequate time to be made aware of their rights and to make an informed decision about returning to their home countries.
The policy of returning individuals within seventy-two hours raised concerns that Jordan, with the assistance of the International Organization for Migration, was violating its customary law obligation not to return refugees to a country where their lives or freedom are threatened because of persecution (the principle of nonrefoulement), which is the cornerstone of international refugee protection. Some of these concerns were allayed when, on March 21, 160 of the 300 Sudanese nationals scheduled to depart for Sudan were allowed to remain in Jordan once they expressed their fears of persecution if returned home.
However, serious problems remained. Human Rights Watch learned that the Sudanese government sent embassy representatives from Amman to the camps at the border to counsel and reassure Sudanese who originally were reluctant to return home.65 IOM, which was in charge of Camp B at al-Ruweished, did not impose controls on these contacts between the government of Sudan and the refugees.
Permitting Sudanese government officials to contact Sudanese individuals potentially harboring fears of persecution constitutes a breach of refugee law. Refugees should not have their identities disclosed to the government of their country of origin. UNHCR's Refugee Status Determination Handbook states unequivocally that, "It will be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence it is, of course, of the utmost importance that the applicant's statements will be treated as confidential and that he be so informed."66
Finally, IOM should have been particularly careful when sending third country nationals home from Jordan. IOM itself had published a list of the countries of origin for the majority of migrant workers in Iraq in March 2003. That list included India, Egypt, Philippines, Pakistan, Bangladesh and Sri Lanka67 - but the nationalities of many of those sent home by IOM from Jordan, such as Somalis and Sudanese, are noticeably absent from this list. The implication that the third country nationals fleeing Iraq were migrant workers and did not fear persecution if returned home is questionable given the list of migrant workers published by IOM and the fact that the countries of origin for many of these people, such as Somalia and Sudan, were places from which tens of thousands of refugees have fled from persecution or civil war for several years.
Iranian Kurds in No-Man's Land
The most pressing need for these refugees is that they be allowed to enter Jordan. Jordan has an obligation to keep its 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 Jordan as a host country.73 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.
It is unclear what will happen to these refugees while conditions in Iraq are unsafe. In the face of Jordan's unwillingness to allow the Iranians in, UNHCR is contemplating resettling them in a camp near the border inside Iraq, as opposed to the mostly empty refugee camp already set up for this purpose at al-Ruweished. The camp in Iraq would be guarded by U.S. troops. The Iranian Kurds are said to be adamantly against this option, and some have threatened to commit suicide if they are moved.74
Responsibility Towards Refugees in Jordan
If Jordan should send anyone on its territory to a country where their lives are seriously at risk, the government would violate its obligations of nonrefoulement. This obligation applies to Sudanese who may be returned to unsafe conditions in Sudan, or Palestinians who may be returned to Iraq where they will suffer from discrimination and physical attacks. This obligation also applies, for example, to Somalis who might suffer abuse in Iraq if sent there. In other words, nonrefoulement protects refugees from being sent to any country where they will suffer serious human rights abuse, whether it is their country of origin or not.
Other protection functions that the agency works with governments to perform include: ensuring that refugees are not subjected to human rights abuse, ensuring that refugees have a secure legal status, and ensuring that governments work to find durable solutions to their plight. The three primary solutions that UNHCR is entrusted to implement are: voluntary return to a refugee's country of origin in conditions of safety and dignity,84 resettlement to a safe third country, or local integration in the host country the refugee is currently living in.
Since its inception, UNRWA was only intended to be an assistance agency. Protection was supposed to be provided by the United Nations Conciliation Commission for Palestine (UNCCP.)85 The UNCCP was given the mandate to seek durable solutions to the Palestinian refugee problem - a role usually assigned to UNHCR in other refugee situations. Stymied by the political stalemate over the question of repatriation and the inability of the Arab states and Palestinians and the Israeli government to reach an agreement, the UNCCP declared it could not fulfill its mandate and by the early 1950's ceased to be an operational protection agency.86 This effectively left the Palestinian refugees in a protection vacuum. No agency was authorized to intervene on their behalf to protect their human rights, to negotiate to seek a just solution, or to deal with their claims for repatriation, compensation or restitution.
However, Article 1D of the Refugee Convention and paragraph 7 of UNHCR's Statute extends the competence of UNHCR to include protection activities for refugees who do not have another organization already fulfilling these functions. In other words, in the absence of UNCCP protection, the Palestinian refugees should receive the same protection and durable solutions as afforded to other refugees under the international refugee regime.87 UNHCR, in fulfillment of its mandate, should seek to facilitate and promote these durable solutions, including voluntary repatriation,88 through international fora and bilateral or tripartite negotiations.
However, IOM has no refugee protection mandate. Certain aspects of the programs established in Jordan for third country nationals, such as the seventy-two hour deadline for arranging flights home for individuals and the visits to the camps by Sudanese government officials have raised serious refugee protection concerns. Given Jordan's overall unwillingness to host refugees for more than a six month period, IOM may have come under pressure to create a program in which third country nationals spent the least possible amount of time in the country. Regardless, IOM should never succumb to such pressures when they involve potential breeches of refugees' safety or subjecting them to refoulement.
International Community and Donor Governments
The international community also has a responsibility to provide longer-term solutions to the plight of refugees in Jordan. Not only should donor countries provide Jordan with financial and logistical assistance, but all industrialized governments should also be prepared to assist the government of Jordan in providing a permanent solution for some of these refugees through refugee resettlement schemes, particularly those who cannot safely remain in Jordan or who cannot return safely to Iraq or to their places of origin. The United States and Britain, as the occupying powers in Iraq, have a heightened responsibility in this regard. Donor governments are playing a critical protection and responsibility function when they agree to take in, or "resettle" refugees. On several occasions UNHCR's ExCom has emphasized that "[a]ctions with a view to burden-sharing should be directed towards facilitating. . . resettlement possibilities in third countries."90
48 "Jordanian Red Crescent Says Preparing for "First Shot" of 10,000 Refugees," Agence France Presse, March 11, 2003.
49 UNHCR, Briefing by Spokesperson Peter Kessler, May 1, 2003.
50 Douglas Jehl and Michael R. Gordon, "American Forces Reach Cease-fire with Terror Group," New York Times, April 29, 2003
51 Information on conditions in the "no man's land" camp is based on Human Rights Watch interviews with refugees in Jordan who had passed through the camp, conversations with U.N. and non-governmental humanitarian aid workers who had visited the camp, and public statements by U.N. and relief organizations.
52 "Over 1,000 People in `No Man's Land,'" IRIN News, April 20, 2003. See also Médecins Sans Frontières, "Stuck in Unsuitable Camp in `No Man's Land,'" April 28, 2003.
53 UNHCR, Briefing by Spokesperson Peter Kessler, May 1, 2003.
54 Human Rights Watch interviews in al-Ruweished camps. See also "Amman Allows 200 People to Enter From No-Man's-Land," IRIN News, April 23, 2003.
55 UNHCR, "UNHCR Urges States to Grant Temporary Protection to Iraqis," May 7, 2003.
56 Human Rights Watch interview with Palestinian refugees, Baghdad, April 29, 2003.
57 See UNHCR, Handbook on Voluntary Repatriation, 1996, pp. 10-12. The Handbook states that voluntary returns require that "the positive pull-factors in the country of origin are an overriding element in the refugees' decision to return rather than possible push-factors in the host country or negative pull-factors, such as threats to property, in the home country." Also, returns should "take place in conditions of safety, dignity and security." This standard necessitates return "which takes place under conditions of legal safety. . .physical security. . .and material security. . . .[Returnees should be] treated with respect and full acceptance by their national authorities, including the full restoration of their rights." The handbook contains guidelines derived from international law by which the behavior of UNHCR and governments during repatriation may be judged. It is also based on several ExCom Conclusions, such as ExCom Conclusion No. 18 (1980), ExCom Conclusion No. 40 (1985), ExCom Conclusion No. 74 (1994), which reflect international human rights norms as well as interpretations of the Refugee Convention.
58 "First Refugees From Iraq Arrive in Jordan," Milwaukee Journal Sentinel, March 21, 2003.
59 "474 Third Country Nationals Have Arrived at Ruweished Camp," Xinhua News Service, March 22, 2003.
60 "Saddam's Regime Bars Iraqis from Leaving the Country," Agence France Presse, March 25, 2003.
61 Human Rights Watch interviews with third country nationals, al-Ruweished Camp B, April 27, 2003.
62 IOM Third Country Nationals Map, April 28, 2003.
63 Since the International Organization for Migration does not have a protection mandate, its involvement with third country nationals may reflect an underlying assumption that they are economic migrants and not refugees, and may result in affording them lesser protection than what they are entitled to under international law.
64 IOM Press Release, March 21, 2003 (stating that IOM was arranging for bus convoys and flights to send third country nationals home within a seventy-two hour deadline).
65 Human Rights Watch interview with UNHCR representative, Amman, Jordan, March 24, 2003.
66 See UNHCR, Handbook On Procedures And Criteria For Determining Refugee Status, UN Doc. HCR/1P/4/Eng/REV.2, 1979, (edited 1992) para. 200 (emphasis added). The Handbook on Procedures and Criteria for Determining Refugee Status was prepared at the request of states members of UNHCR's ExCom for the guidance of governments. See Guy Goodwin-Gill, The Refugee in International Law, 1996, p. 34. The Handbook is an authoritative interpretative guide and is treated as such by governments. For example, the U.S. Supreme Court has found the Handbook's guidance "significant." See INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) (stating that the Handbook "provides significant guidance in construing the Protocol, to which Congress sought to conform.... and has been widely considered useful in giving content to the obligations that the Protocol establishes.").
67 See United Nations, Flash Appeal for the Humanitarian Requirements of the Iraq Crisis, Six Month Response, p. 19.
68 U.N. Office of the Humanitarian Coordinator for Iraq, Humanitarian Situation Report No. 32, May 6, 2003.
69 Médecins Sans Frontières, "Stuck in Unsuitable Camp in 'No Man's Land,'" April 28, 2003.
70 Oxfam, "Oxfam Aids Refugees on Jordanian Border," April 28, 2003.
71 CARE, "CARE Relief Supplies, Emergency Team Arrive to Baghdad," April 28, 2003.
72 Médecins Sans Frontières, "Stuck in Unsuitable Camp in `No Man's Land,'" April 28, 2003.
73 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).
74 Human Rights Watch interview with relief organization, April 28, 2003.
75 See UNHCR, Statistical Yearbook 2001, October 2002, p. 92-95. See also UNRWA in Figures, June 30, 2002, available at www.un.org/unrwa/pr/pdf/uif-june02.pdf.
76 Correspondence from UNHCR Branch Office Jordan, December 3, 2002 (on file with Human Rights Watch).
78 See Géraldine Chatelard, "Iraqi Forced Migrants in Jordan: Conditions, Religious Networks, and the Smuggling Process" September 2002 (on file with Human Rights Watch).
80 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954.
81 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. ExCom Conclusion No. 17, Problems of Extradition Affecting Refugees, 1980; No. 25, 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 Conclusion No. 25, General Conclusion on International Protection, 1982.
82 Statute of the Office of the United Nations High Commissioner for Refugees, GA Res. 428(V), December 14, 1950.
83 See UNHCR, Handbook for Emergencies, January 2000.
84 See footnote 57, above, for a discussion of the standards required for voluntary returns.
85 The UNCCP was entrusted under General Assembly Resolution 194 to "take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them" - specifically, to ensure repatriation and compensation.
86 See Progress Report of the United Nations Conciliation Commission for Palestine, Article 87, covering the period from January 23 to November 19, 1951, (Stating that "[t]he Commission is of the opinion, however, that the present unwillingness of the parties fully to implement the General Assembly resolutions under which the Commission is operating, as well as the changes which have occurred in Palestine during the past three years, have made it impossible for the Commission to carry out its mandate, and this fact should be taken into consideration in any further approach to the Palestine problem. ").
87 The international refugee regime includes the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol; the Statute of UNHCR; the Conclusions and documents of UNHCR's Executive Committee; UNHCR guidelines and policies; and international customary law.
88 See footnote 57, above, for a discussion of the standards required for voluntary returns.
89 Between 1979 and 2000, the ExCom passed fourteen Conclusions citing the need for international responsibility-sharing to assist host countries to cope with mass influxes of refugees. The Conclusions also stipulate the fundamental obligation of first countries of asylum to keep their borders open to refugees and to provide them with full refugee protection on at least a temporary basis, while being assisted in meeting that obligation with financial assistance from other governments.
90 See "Protection of Asylum-Seekers in Situations of Large Scale Influx," ExCom Conclusion No. 22, 1981, para. 3. See also ExCom General Conclusion on International Protection No. 79 (1996), ExCom General Conclusion on International Protection No. 85 (1998). In addition, as one authoritative commentary on the Travaux Préparatoires to the Refugee Convention has noted, "the Preamble, by referring to the international nature of the refugee problems which has, inter alia, been affirmed in General Assembly Resolution 6(I) of February 12, 1946, and the need of international cooperation, proclaims the principle of burden-sharing.... It is clear from the debate that not only international cooperation in the field of protection but also in the field of assistance was meant." See The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis, Cambridge International Documents Series, Vol. 7, The Refugee Convention, 1995.