publications

V. Detention and Refoulement

Penalties for illegal entry or presence in the country

Although Lebanon is not a party to the 1951 Refugee Convention or its 1967 Protocol, it is a member of UNHCR’s Executive Committee (ExCom).64 In standardizing state practice in conformity with Article 31 of the Refugee Convention, which directs states not to impose penalties on refugees on account of their illegal entry or presence, the ExCom has repeatedly endorsed the principle that refugees who flee from circumstances where their life or freedom is threatened should not be penalized for entering or residing in another country illegally for the purpose of seeking asylum. In its Conclusion 44, the ExCom “noted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum,” and “stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum-seekers, and that of other aliens.”65

Lebanon does not make this fundamental distinction with respect to Iraqi refugees; all Iraqi nationals who enter the country illegally or overstay their visas are considered to be illegal immigrants regardless of the fact that a great number of them are fleeing because their lives are threatened and despite UNHCR's prima facie recognition of Iraqi nationals from central and southern Iraq as refugees.

In practice, the Lebanese authorities have shown a remarkable tolerance of the Iraqi presence in Lebanon. The police and the Internal Security Forces (ISF) do not systematically arrest Iraqis who do not have valid visas or residence permits. However, the authorities have not recognized the right of Iraqis in need of international protection to be present and have not issued unequivocal instructions to law-enforcement officials not to arrest Iraqi refugees on the basis of their illegal entry or presence in the country. Accordingly, the Iraqis — especially Iraqi men — live in great uncertainty. At times Iraqi refugees at checkpoints are allowed to proceed when they show their refugee certificates, although the certificates have no official status. At other checkpoints these same refugees face arrest for being in the country illegally. There is no pattern or method to these arrests; whether an Iraqi refugee is arrested or not appears to depend entirely on the whim of the law-enforcement officers at the checkpoints. In recognition of this reality, UNHCR warns Iraqi refugees about the possibility of arrest. It issues Iraqi refugees with a leaflet headed “Important Information,” which states: “Under the current circumstances, the refugee certificate does not provide any definite guarantees against arrest. The refugee certificate allows UNHCR to intervene on your behalf with the Lebanese authorities, but it does not give you additional rights beyond those provided by the Lebanese authorities in terms of work and movement.”66

For Iraqi refugees, the risk of being arrested and detained increases directly with the number of checkpoints: while in March 2007 there were fewer than 100 Iraqi refugees in detention in Lebanon, by August 2007 this number had increased dramatically to 480 as a direct result of the proliferation of checkpoints due to the worsening security situation.67 As this paper goes to press, in November 2007, about 580 Iraqi refugees are in detention in Lebanon.68

The authorities take those Iraqi refugees they arrest to a local police station and then transfer them to one of Lebanon’s prisons to await a court hearing.69 Usually, court hearings are scheduled for a number of Iraqi refugees at the same time. These hearings are entirely standardized; the judges only ask the refugees to confirm their names and nationality, and to confirm their illegal entry. The judges usually deny them an opportunity to explain the reasons for their illegal entry or presence in the country.70 One refugee said, “I was brought before the judge. He asked my name and whether I had entered illegally. I said, ‘Yes.’ I was sentenced to one month imprisonment and a fine of 50,000 Lebanese pounds [US$33].”71

Under article 32 of the 1962 Law of Entry and Exit, foreigners who enter Lebanon illegally are liable to a prison sentence of between one month and three years, a fine, and deportation; judges have exercised little discretion in imposing all three penalties provided in the law.72 Iraqi refugees who are convicted of illegal entry are usually sentenced to the minimum prison sentence of one month, plus a fine and deportation.73 Instead of paying the fine most Iraqi refugees opt for the alternative of serving extra prison time, at a rate of one day for each 10,000 Lebanese pounds.

Conditions in Roumieh Prison

The vast majority of Iraqi refugees sentenced to prison for illegal entry serve their sentences in Roumieh prison, in Greater Beirut. Human Rights Watch researchers visiting the prison observed that Iraqi refugees share cells with common criminals. The UNHCR ExCom voiced its disapproval of this practice in its Conclusion 85, which “note[d] with concern that asylum-seekers detained only because of their illegal entry or presence are often held together with persons detained as common criminals, and reiterates that this is undesirable and must be avoided whenever possible."74

Roumieh prison has four different types of cells: cells intended for one person that usually hold four; cells intended for three people that actually hold four to six; cells intended for seven that usually hold eight or nine; and a few very large cells that were never intended to house detainees that now hold 100 to 120 people. Detainees in the large cells are allowed to go outside their cells into a corridor or a courtyard for one hour per week. Detainees in the smaller cells are, in theory, allowed to leave their cells three times a week for two hours, but in practice are often let out less often.75

Although prison conditions are equally bad for Lebanese prisoners at Roumieh, they usually have the benefit of relatives bringing them food, water, and supplies, such as hygienic items, whereas Iraqis and other foreigners cannot usually rely on such outside support networks. The few relatives and friends of Iraqi detainees who go to the prison to deliver food find the experience daunting. “I must take food and clothes to my brother and my nephew in prison,” said an Iraqi woman. “It is very hard to visit the prison. I am very afraid to meet the authorities because I am illegal here. I go every week, I have to, my brother and his son don’t have anyone else here. In Roumieh they get food, but the food isn’t good, and it isn’t enough.”76

Iraqi detainees in Roumieh prison told Human Rights Watch that they were not subject to ill treatment by the prison guards. But detainees complained that the cells were very crowded. An Iraqi detainee who was kept in one of the smaller cells said, “There are a lot of people inside, but the way we are treated by the guards is okay. Our cell is 2.5 x 2.5 meters. When there are six people in the cell, it is impossible to sleep.”77 An Iraqi detainee in one of the large cells said the situation was no better there: “You must sleep like sardines, head to toe.”78 The cells do not have beds, and very few mattresses. Another Iraqi detainee said: “There is just enough space for everyone to sleep. There is one mattress in the cell. We use it as a pillow for everyone.”79

In these circumstances, detainees have no privacy at all. An Iraqi detainee explained: “The bathroom is in a corner of the cell. We use a piece of cloth to separate the toilet from the rest of the cell. We wash inside the cell. We have a bucket; friends bring soap to us in the prison.”80

Iraqis in detention also complained about the temperatures in the prison. With no air-conditioning, few fans, and overcrowding, the cells get very hot in summer. In winter, on the other hand, the cells become quite cold.

Another major complaint concerned the prison food. “We get two meals a day, but the food has no color or taste, it is not edible,” said one Iraqi detainee. “We rely on friends to bring us food, tea, sugar, cigarettes. Most people here rely on food that is brought to them from outside.”81 Another Iraqi detainee said, “Before I came here, I weighed 74 kilograms, and look at me now. [He looked underweight.] At one point I was down to 56 kilograms. The food is not very good. The drinking water is not very good; it harms me. Some people here have money; they buy drinking water.”82

An Impossible Choice: Indefinite Detention or Returning to Iraq

Article 18 of the 1962 Law on Entry and Exit provides that anyone who is subject to a deportation order may be kept in detention under the authority of General Security until the deportation procedures are completed. Thus once Iraqis have served their prison sentence for being in the country illegally, General Security assumes responsibility for them. In principle, Iraqi detainees are transferred to the General Security prison at this point. In practice, lack of space in the General Security prison often means that Iraqi refugees remain in the prison where they served their sentence.

In theory, General Security does not enforce deportation orders against any Iraqis, in accordance with Lebanon’s obligations under international law not to subject them to refoulement, the forcible return to a territory where their life or freedom would be threatened. In practice, the situation is considerably less clear-cut. While General Security does not deport Iraqi nationals who have served their sentence, it also does not release them from detention. Instead, it keeps them in detention, presumably until such time as they can be deported to Iraq without such deportation amounting to refoulement. The only ways Iraqi refugees can secure their release from detention once they have served their sentence is by agreeing to return to Iraq (the most common option), by having UNHCR apply to General Security for their release, or by getting an employer to sponsor them and thus regularize their status.83 

In practice, UNHCR has had limited success in obtaining the release of Iraqi detainees. While some Iraqi refugees are released without further delay once UNHCR has requested their release, others remain in detention. General Security does not generally provide UNHCR with the reasons it declines to release certain refugees. However, it would seem that significantly increased offers of third country resettlement—with priority for Iraqi refugees in detention—would enhance UNHCR’s ability to convince the Lebanese authorities to release Iraqis from detention and to protect them from refoulement.

Iraqi refugees find it very hard to regularize their status from inside the prison. They often do not have a way to communicate directly with their former employers in Lebanon who could try to regularize their status. In any case, with a cheap and constantly replenishing supply of Iraqi laborers, their employers are rarely willing to go through the expense and effort of regularizing the status of their former employees.

Accordingly, Iraqi refugees in detention are presented with a repugnant choice: either they continue to suffer the cruelty and hardship of being detained, with no release date in sight, or they agree to go back to the country from which they fled for their lives. For most refugees in detention, it is a choice that does not deserve the name. The notion of remaining in prison indefinitely is so abhorrent and the conditions in prison so unbearable that they see little option but to “choose” return to Iraq. The imposition of indefinite detention in harsh conditions, when the detainees have served their sentences and are not facing other charges, may itself constitute inhuman and degrading treatment and as such would be a violation of Lebanon’s obligations under the International Covenant on Civil and Political Rights  (ICCPR)84 and the UN Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (Convention Against Torture).85

Detained Iraqi refugees have no wish to return to or stay in Iraq; they want only freedom from indefinite detention. Agreeing to go back is their only means of realizing that objective.

Many detained Iraqis interviewed by Human Rights Watch in Roumieh prison initially chose to stay in prison rather than go back to Iraq, where they feared for their safety.86 Human Rights Watch interviewed an Iraqi detainee at Roumieh prison within moments of making his “choice” to return to Iraq. Until then, he had refused to be sent back to Iraq and had remained in indefinite detention after completing his sentence for illegal entry. A few minutes before Human Rights Watch talked with him, an Iraqi embassy delegation had completed interviewing and processing him for return. He was so agitated and angry that he could hardly speak. He held up his thumb, still covered in blue ink, which he had used to produce a fingerprint, and said, “You see this? I’m going back! This prison is making me go mad. I will probably get killed in Iraq [he ran his finger across his throat], but I’m going back, I can’t stay in this prison any longer.”87

Before the International Organization for Migration (IOM) temporarily suspended its involvement in return of detained Iraqis in September 2007, Iraqi detainees could return to Iraq in one of two ways. Either they made their own travel arrangements or IOM returned them. Iraqis who made their own travel arrangements could leave at any time, provided they had served their prison sentence.88 The IOM returns procedure worked as follows:

General Security on a regular basis provided details to the Iraqi embassy of all Iraqis who had served their sentences. The embassy then sent a delegation to Roumieh prison to interview the Iraqis in question and to ascertain whether they wanted to go back to Iraq. The embassy sent a list to UNHCR and IOM with the names of people who wished to return to Iraq.89

UNHCR staff members interviewed all Iraqis on these lists. They counseled all those who had not yet registered with UNHCR on the prima facie refugee recognition policy, and offered them the opportunity to register with UNHCR. They confirmed with the detainees whether they stood by their decision to go back to Iraq. Few changed their mind at this stage, since UNHCR could not guarantee that they would be released from prison, even if they were registered as refugees with UNHCR. UNHCR communicated with IOM to ensure that IOM did not make travel arrangements for Iraqis on the embassy list who subsequently told UNHCR that they did not in fact wish to return to Iraq. General Security requires all Iraqi detainees who wish to return to Iraq to sign a statement to the effect that they voluntarily agree to repatriate.

Prior to the September 2007 temporary suspension of its involvement in the return of detained Iraqis, IOM informed Human Rights Watch: “All individuals assisted by IOM in their voluntary return are subject to voluntariness assessment and return counseling.”90 Prior to September 2007, IOM arranged for flights, and assumed the transportation costs, to one of the four international airports in Iraq (Baghdad, Basra, Erbil, Sulaimaniya). Depending on the arrival airport, IOM either arranged for onward transportation to the returnees’ final destination, or paid for public transportation.91 Between May and September 2007, IOM provided Iraqi returnees with a reintegration package worth $2,000, including a $500 cash component, with the remainder disbursed as in-kind assistance.92 Between January 1 and May 17, 2007, IOM returned 67 Iraqis from Lebanon to Iraq, including 62 Iraqis who had been in detention for illegal entry, and one family of five people.93

Coerced Choices

The Iraqi consul in Beirut told Human Rights Watch that Iraqi embassy personnel “do not encourage anyone to go back to Iraq,” but that it was nevertheless part of his consular duties to facilitate the return to Iraq of Iraqi detainees who asked for his assistance.94 Embassy officials are acutely aware of the fact that Iraqi detainees only agree to go back to Iraq because they do not have a real alternative. The Iraqi consul in Lebanon said, “You put them [Iraqi detainees] in a corner: either you stay in prison, or you go back to Iraq. They have no choice. If you gave them another option, and if they then wanted to go back, that would be voluntary.”95

UNHCR finds itself in a similar predicament. By interviewing Iraqis in detention who have indicated to their embassy that they wish to return, UNHCR tries to ensure that they do not go back against their will. At the same time, UNHCR recognizes that Iraqis in detention have few alternatives, and that it is therefore difficult to maintain that decisions by detained Iraqis to go back to Iraq are truly voluntary. The UNHCR representative in Lebanon said, “We don’t ask them whether they are voluntarily going back to Iraq, because we think there is something strange about asking that when someone is in detention.”96

It seems unlikely that Iraqi detainees would choose to go back to Iraq if they were indeed given an alternative other than indefinite detention. Certainly, Iraqi refugees who are not in detention, and who therefore do have an alternative, unequivocally reject the idea that they might want to go back to Iraq at this time. However difficult life is for Iraqi refugees in Lebanon (see section VI), they nevertheless choose to stay. Asked whether he hoped to be able to go home in the foreseeable future, one refugee answered succinctly, “No. You die over there.”97 Asked the same question, an Iraqi woman said, “No. I am very afraid, afraid of violence. I am looking for security and safety, this is my goal. I want to live without nightmares and without fear.”98 Another woman said, “No one does not like their own country, but if the situation remains like this, why would I want to go back?”99 Refugees are also warned against returning home by their relatives who have stayed behind in Iraq. As one refugee said, “Every time we call our family in Iraq they tell us, ‘Don’t even think about coming back to Iraq.’”100

Since UNHCR’s decision in January 2007 to recognize Iraqi nationals as refugees on a prima facie basis, Iraqi detainees interviewed by UNHCR have increasingly indicated that they do not want to return to Iraq, even though they understand that UNHCR cannot guarantee their release from detention. However, the majority of Iraqi detainees still chose to go back to Iraq. In interviews with Human Rights Watch, Iraqis in detention explained their reasons. Many pointed out that refugees who refused to go back had already spent many months in prison, despite UNHCR’s efforts to intervene on their behalf with General Security. As one Iraqi detainee said, “I’d rather go back to Iraq than stay here [in Roumieh prison]. There are people here who have been here for eights months. UNHCR is not managing anything for them. Why would I stay here? I might be killed in Iraq, but I’d rather leave.”101

The option of release through employment sponsorship and legalized status is also remote. An Iraqi detainee told Human Rights Watch of his failed efforts to have his employer sponsor his application to regularize his status. He said:

No one tells me how long it is going to be in prison. I see people who have been here for eight months. If I can’t regularize my status, I will go back to Iraq. If I go back to Iraq, I will be killed. I don’t want to go back, but it is better for me to go back than to spend one more day being locked up with criminals. I don’t want to stay in prison. I have never been to prison in my life. This is the first time that I am in a room with criminals. I suffer so much in prison, I prefer to die.102

A number of the Iraqi detainees interviewed by Human Rights Watch said they were finding it very difficult to cope with their prolonged detention. One said:

I have been here for seven months. I am really tired. I am about to lose it. My nerves are fraying. I only want to know when I am going to be released from jail. When? I haven’t done anything. I haven’t committed a terrorist act. I am very tense, I am often shaking. Sometimes I am in my cell and I just want to rip off my shirt. [He grabbed his shirt with two hands, and made a movement as if he was going to rip his shirt apart.] We are treated like animals. We haven’t seen any human rights, we only hear of them.103

Another Iraqi detainee said, “You are here, with thieves, criminals. You spend your nights crying because you don’t know what is happening. I’ve stopped asking for things, because nothing ever happens. When you complain too much, they say, ‘Go back to Iraq.’”104

Yet another Iraqi detainee said:

The situation is so difficult for us, we are just waiting. I have no news from my family. The months just go by, I feel like I am collapsing. I am very tired, psychologically I am exhausted. People are losing it in jail, they start talking to themselves. It is such a difficult situation. This psychological tiredness, with time it becomes more severe. My hands start shaking, I really am collapsing.105

It is evident from these accounts that agreeing to repatriate is the only means for Iraqi detainees to be released from detention. They have no wish to be in Iraq; what they want is release from detention. Human Rights Watch interviews with four Iraqi refugees who had previously been in detention, had been returned to Iraq, and then crossed back into Lebanon again confirm that most Iraqi detainees have no desire to be back in Iraq. One said, “After 20 days in Iraq, I found a smuggler and I went straight back to Lebanon.” Asked why he had agreed to leave Lebanon in the first place, he simply said, “The situation in prison was very bad, so I had to leave.”106 The Iraqi embassy is familiar with this scenario. The Iraq consul told Human Rights Watch, “I assure you, the person who is returned, 10 days later, you see him back again. Some persons, we return them three times.”107 A pattern of multiple returns of the same persons is among the strongest indications that the returns are involuntary.

Sometimes, detained Iraqi refugees in Lebanon who agree to return to Iraq are then served a cruel reminder of the dangers that had caused them to flee Iraq in the first place. An Iraqi father recounted what happened when he and his son were arrested and detained for illegal entry in 2005. After several months in Roumieh prison, they agreed to return to Iraq in order to be released from detention. Once back in Iraq, the son was kidnapped. The father managed to secure his son’s release by paying a ransom. Together they then returned to Lebanon. The father said, “I don’t want to go back to Iraq. I want to stay in Lebanon, even if they break every bone in my body, even if we don’t feel safe here, because we are illegal.108

In addition to targeted violations, such as kidnapping, returnees run the risk of falling victim to generalized violence. For example, after `Abbas Hamid Gawda served a 45-day sentence in a Lebanese prison after being caught attempting to cross the border illegally, his family raised $400 so that he could leave prison and return to Iraq. He went back to Iraq in October 2006, leaving his wife and two children in Lebanon. He was killed in an explosion in Sadr City two weeks later. Human Rights Watch saw the death certificate, dated October 23, 2006, which gives "accident-explosion in New Baghdad" as the cause of death.

Lebanon’s Nonrefoulement Obligations

Lebanon is party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and is bound under Article 3 of that instrument not to return or expel any persons to states where they would be in danger of being tortured.109 As noted above, Lebanon is not a party to the 1951 Refugee Convention or its 1967 Protocol, but is nevertheless bound by customary international law not to return refugees to a place where their lives or freedom would be threatened. The UNHCR ExCom’s Conclusion 25 of 1982 declared that “the principle of nonrefoulement

The UN General Assembly reinforced the international consensus that the

nonrefoulement obligation adheres to all states, not just signatories to the Refugee Convention, when it adopted Resolution 51/75 on August 12, 1997, which: 

[c]alls upon all States to uphold asylum as an indispensable instrument for international protection of refugees and to respect scrupulously the fundamental principle of nonrefoulement, which is not subject to derogation.111

On the occasion of the 50th anniversary of the Refugee Convention in 2001, the Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees acknowledged “the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of nonrefoulement, whose applicability is embedded in customary international law.”112 Later that year, the UN General Assembly welcomed the Declaration.113

In theory, Lebanon does not return any Iraqi refugees to Iraq against their will. However, the practices of the Lebanese authorities coerce Iraqi refugees to “choose” to return to Iraq. By first arresting and detaining Iraqis who enter the country illegally for the purpose of seeking asylum, and then giving those in detention a “choice” between returning to Iraq or indefinite detention, Lebanon in practice commits refoulement.

Lebanon needs to adopt a different approach to the presence of Iraqi refugees on its territory. It must offer Iraqi refugees the protection they need. Lebanon should accede to the Refugee Convention and Protocol and adopt a domestic refugee law. At a minimum, Lebanon should issue circulation permits to all Iraqis whom UNHCR registers as refugees. Consistent with the international refugee law principle not to penalize refugees for their illegal entry or presence, Lebanon should not prosecute and punish Iraqi refugees for their illegal entry or presence by imposing fines and prison sentences.

In addition, Lebanon should cease subjecting Iraqi refugees to indefinite detention after they have served their prison sentence for entering the country illegally. Lebanon is a party to the International Covenant on Civil and Political Rights (ICCPR).114 Article 9(1) of the ICCPR provides: “No one shall be subjected to arbitrary arrest or detention.” The UN Human Rights Committee, which oversees implementation of the Covenant, has examined the practice of indefinite detention of asylum seekers in Australia.115 The Committee emphasized that the concept of arbitrariness should not be equated with “against the law” but must also include such elements as “inappropriateness and injustice.” It noted that to avoid being arbitrary, detention should not continue beyond the period for which a State can provide appropriate justification. It also pointed out that detention could be considered arbitrary if “it is not necessary in all the circumstances,” for example to prevent flight, and that “the element of proportionality becomes relevant in this context.”

In the current circumstances, where Iraqis cannot be deported to Iraq because to do so would violate Lebanon’s nonrefoulement obligations, keeping Iraqi refugees in indefinite detention under the authority of General Security for the purpose of arranging deportations that cannot legally be carried out would not be considered proportionate or appropriately justified. As such it amounts to arbitrary detention and hence violates Lebanon’s obligations under the ICCPR.116

The Role of Lebanon’s Judiciary

Lebanon’s judiciary could play an important role in protecting the rights of refugees in Lebanon. However, attempts to engage with the legal system to prevent Iraqi refugees from being detained have mostly proven unsuccessful, as have attempts to secure the release of detained Iraqi refugees through the courts.

Lawyers have tried several different ways to intervene on behalf of Iraqi refugees.117 First, lawyers have tried to persuade state prosecutors not to file charges of illegal entry in the case of Iraqis who were arrested when they attempted to cross the Lebanon-Syria border without permission. Second, they have argued that Iraqis charged with illegal entry should not be sentenced to imprisonment and deportation. Third, they have attempted to bring test cases to establish precedents for the release of Iraqi refugees who have served their sentence for illegal entry.

Even where these efforts have had some success, the outcome has turned on the details of the individual cases, and no precedent has been set. Thus, for example, in the case of a group of Iraqi refugees arrested for attempting to enter Lebanon illegally, the prosecutor was persuaded not to file charges against some members of the group, but he did file charges against others, despite their having been arrested at the same time and in the same circumstances.118

Attempts to obtain through litigation a categorical judicial pronouncement on the wrongfulness of prosecuting Iraqi refugees for illegal entry have thus far failed. Lawyers acting on behalf of a group of Iraqis who were charged with illegal entry argued that these refugees should not be prosecuted on the grounds that the Universal Declaration of Human Rights (UDHR) has been incorporated into the Lebanese constitution and that prosecuting refugees for illegal entry under articles 32 and 33 of the 1962 Law of Entry and Exit is in conflict with the right to seek asylum under article 14 of the UDHR.119 Without addressing the legal arguments, the judge postponed the hearing and ordered the release from detention of the Iraqi refugees in question, on condition that UNHCR undertake to find a permanent solution for them.120 However, as soon as the judge ordered their release, General Security assumed responsibility for them and kept them in detention.121

Finally, two test cases have been brought in an effort to secure the release of Iraqi refugees who have served their sentence for illegal entry. Legal submissions made on behalf of the refugees argued that while General Security, under the authority of the Ministry of Interior, is authorized under article 18 of the 1962 Law of Entry and Exit to detain foreigners for the purpose of making the necessary arrangements for their deportation, for such detention to remain lawful it must be possible to effect the deportation within a reasonable time. Since the current security situation in Iraq precludes the deportation of Iraqi nationals, as this would violate Lebanon’s nonrefoulement obligations, the continued detention of Iraqi refugees is arbitrary, and hence violates Lebanon’s obligations under article 9 of the ICCPR, which provides that no one shall be subjected to arbitrary detention. In both test cases, the judges declined to address the legal arguments and instead referred the cases to General Security.122

Lebanese courts have in several past cases upheld the rights of refugees. In 2001, the Beirut Court of Appeals overturned a deportation order in the case of an Iraqi refugee who had entered Lebanon illegally, on the grounds that deporting the refugee in question would violate Lebanon’s obligations under article 3 of the Convention against Torture, which binds Lebanon not to return or expel any persons to states where they would be in danger of being tortured.123 However, the judiciary has not yet treated this and similar cases as precedents establishing that Lebanon’s obligations under international law outweigh prison sentences mandated by the 1962 Law of Entry and Exit of people convicted of illegal entry.

Lebanon’s judiciary urgently needs to take responsibility for protecting the rights of Iraqi refugees under domestic and international law. In interpreting the requirements of the 1962 Law of Entry and Exit, Lebanon’s judiciary should pay heed to Lebanon’s obligations under international law not to subject anyone under its jurisdiction to arbitrary detention, and not to refoule anyone to a state where his or her life or freedom would be in danger. Iraqi nationals who enter Lebanon illegally for the purposes of seeking asylum should not be prosecuted under the 1962 Law of Entry and Exit, and should in any case not be sentenced to deportation. Where the state cannot execute sentences of deportation because of its obligations under international law, it should not subject refugees to indefinite detention but instead should release them.

IOM’s Role and Obligations

The International Organization for Migration (IOM), a Geneva-based intergovernmental organization with 120 member states, is governed by a constitution which requires that any returns it facilitates be voluntary. Article 1(1)(d) of the IOM constitution provides that the purposes of the organization include “services as requested by States, or in co-operation with other interested international organizations, for voluntary return migration, including voluntary repatriation.”124 The requirement of voluntariness means that any person whose return IOM facilitates must be able to choose freely and not be pressured or coerced to return, and bars the IOM from facilitating deportations.125

The website of IOM-Iraq’s Regional Operations Centre states:

A voluntary decision to return entails a two-pronged element:

1. The freedom of choice in the absence of any physical, psychological or material pressure.

2. An informed decision based on available, updated objective and accurate information on which this voluntary return decision is based upon.

A voluntary return request is always the trigger for IOM assistance and is based on the premise that the migrant is not under any pressure or coercion to return and is duly informed on the conditions of return.126

For Iraqi refugees whose only alternative to returning to Iraq is indefinite detention, these requirements are not satisfied. Far from having the freedom to choose in the absence of any form of pressure, Iraqi detainees are coerced by the prospect of indefinite detention to accept that they have no other option but to return to Iraq.

In preparing this report, Human Rights Watch suggested to IOM that these circumstances render the distinction between voluntary repatriation and forced return meaningless. IOM responded:

Stating that such circumstances — individuals being placed in detention for undetermined periods of time as a sole result of their being irregular migrants — render "the distinction between voluntary and forced returns meaningless" defeats the purpose of the many steps we, in coordination with all relevant stakeholders, have taken over the past years, to precisely establish and maintain that distinction, as well as the belief that individuals, properly counseled and informed of their status and alternative options, should be able to decide for themselves, in fine, whether or not they wish to seek return assistance to their home country.127

Clearly, counseling detainees and providing information about the situation in Iraq is vital, but cannot alter the fact that to many indefinite detention is so unacceptable and may cause such trauma that almost any alternative presents itself as the better option, no matter how dangerous or harmful that alternative is.

It is true that some detained Iraqi refugees refuse to go back to Iraq. An Iraqi refugee who had been in Roumieh prison for nearly seven months, and who had already been interviewed by delegations from the Iraqi embassy several times, said, “I refuse to go back, the situation in Iraq is so bad, I’d rather stay in jail for 10 years than to go back.”128 Such cases hardly show that those detained Iraqi refugees who decide to go back to Iraq do so voluntarily. Rather, these cases underscore the dangers that await those who return to Iraq.

On September 24, 2007, IOM sent a letter to the Iraqi embassy in Beirut informing it that IOM had decided to temporarily suspend its “voluntary return assistance” for detained Iraqis in Lebanon. It based this decision, it said, on discussions with UNHCR and in recognition that “general conditions in Iraq have greatly deteriorated.” Despite the temporary suspension, IOM said that it “will resume work in the near future after the UNHCR, according to their agreement with the Lebanese government, assesses the care for the expected returnees outside of arresting agencies.”129

IOM has emphasized that “the rights of individual migrants and refugees should be respected.”130 Of course, the most basic right of refugees is the right not to be returned to a place where their lives or freedom would be threatened, that is, the right not to be subjected to refoulement. Lebanon, by detaining Iraqis who enter the country illegally for the purpose of seeking asylum, and then giving them a “choice” between returning to Iraq or indefinite detention coerces them to “choose” to return to Iraq, a form of refoulement. IOM should not resume its participation in the return of Iraqi refugees thus coerced. Doing so would facilitate what are in practice deportations and exposes IOM to the risk of being complicit in committing refoulement.

As noted above, UNHCR advises states that “No Iraqi from Southern or Central Iraq should be forcibly returned to Iraq until such time as there is substantial improvement in the security and human rights situation in the country.”131 IOM should not resume its involvement in the return to Iraq of detained Iraqi refugees, for these are forcible returns in all but name.




64 The Executive Committee (ExCom) is UNHCR’s governing body. ExCom membership does not require accession to the Refugee Convention or Protocol, but requires rather a “demonstrated interest and devotion to the solution of refugee problems” and membership in the United Nations or its specialized agencies. UNHCR, “How to Apply for ExCom Membership,” www.unhcr.org/excom/418b5ecc4.html (accessed July 5, 2007). Lebanon joined the ExCom in 1963. Since 1975 the ExCom has adopted a series of "Conclusions" at its annual meetings, which are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. ExCom Conclusions are not legally binding on states, but they are widely recognized as representing the view of the international community and carry persuasive authority as they are adopted by consensus by ExCom member states (currently numbering 70 states).

65 UNHCR ExCom Conclusion 44 (XXXVII), “Conclusion on International Protection,” October 9, 1986, www.unhcr.org/excom/EXCOM/3ae68c43c0.html (accessed July 19, 2007), paras. (a) and (d).

66 UNHCR information leaflet for Iraqi refugees in Lebanon, undated, on file with Human Rights Watch.

67 Human Rights Watch interviews with Stephane Jaquemet, UNHCR Representative in Lebanon, Beirut, March 23 and June 8, 2007, and email from UNHCR-Beirut to Human Rights Watch, August 31, 2007. See also Lysandra Ohrstrom, “Beirut Grows Less Tolerant of Displaced Iraqis,” Daily Star (Beirut), June 23, 2007.

68 Associated Press, “US Group: Lebanon Jailing Iraqi Refugees,” November 12, 2007, http://www.msnbc.msn.com/id/21762135/ (accessed November 14, 2007).

69 By far the largest number of Iraqi refugees are detained in Roumieh prison in Greater Beirut. Iraqi refugees who are arrested while attempting to enter Lebanon illegally, usually with the help of people smugglers who operate in the remote and mountainous terrain that straddles the Lebanon-Syria border in the far north of Lebanon, are usually taken to a local prison, at least initially; many are then transferred to Roumieh prison at a later stage.

70 Human Rights Watch interview with Samira Trad, Director, Frontiers Association, Beirut, March 26, 2007.

71 Human Rights Watch interview with Iraqi refugee (No. 68), Roumieh Prison, Building B, Greater Beirut, May 3, 2007.

72 Law Regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country, art. 32.

73 The value of the fine varies from one person to the next, without any discernable reason: Human Rights Watch encountered Iraqi refugees who had all been sentenced to one month in prison for illegal entry, but who were ordered to pay fines of 50,000LL, 100,000LL, 150,000LL, 200,000LL, 250,000LL and 300,000LL respectively.

74 UNHCR ExCom Conclusion 85 (XLIX), “General Conclusion on International Protection,” October 13, 1998, www.unhcr.org/excom/EXCOM/3ae68c6e30.html (accessed July 19, 2007), para. (ee).

75 Human Rights Watch interview with staff members of Médecins du Monde au Liban and Association Justice et Miséricorde, Greater Beirut (Roumieh), April 23, 2007.

76 Human Rights Watch interview with Iraqi woman (No. 13), Greater Beirut (Za`taria), March 31, 2007.

77 Human Rights Watch interview with Iraqi man (No. 68), Roumieh prison, May 3, 2007.

78 Human Rights Watch interview with Iraqi man (No. 41), Roumieh prison, April 23, 2007.

79 Human Rights Watch interview with Iraqi man (No. 44), Roumieh prison, April 23, 2007.

80 Human Rights Watch interview with Iraqi man (No. 41), Roumieh prison, April 23, 2007.

81 Human Rights Watch interview with Iraqi man (No. 43), Roumieh prison, April 23, 2007.

82 Human Rights Watch interview with Iraqi man (No. 40), Roumieh prison, April 23, 2007.

83 Since regularizing one’s status in Lebanon on the basis of a work permit is costly, only very small numbers of Iraqi refugees can use this option to secure their release from detention. (See also section IV.)

84 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Lebanon acceded to the ICCPR on November 3, 1972. Article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment of Punishment (CAT), adopted December 10, 1984, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987. Lebanon acceded to CAT on October 5, 2000.

85 In C. v. Australia, UN Doc. A/58/40, UN Doc CCPR/C/76/D/900/1999 (2002), para. 8.4., the immigrant detainee kept in indefinite immigration custody suffered psychological trauma because of the prolonged detention. The Human Rights Committee determined that Article 7 of the ICCPR had been violated. In 2004 the Committee Against Torture expressed its concern that in relation to non-UK nationals whom they considered a security risk, that the United Kingdom government was resorting “to potentially indefinite detention” (CAT/C/CR/33/3, 10 December 2004) and then in 2006 the Committee told the  United States, that “ detaining persons indefinitely without charge constitutes per se a violation of the Convention”, U.N. Doc CAT/C/USA/CO/2, (July 25, 2006). See also, Alfred de Zayas, Human rights and indefinite detention, International Review of the Red Cross, Volume 87 Number 857 March 2005, p.20: “ … indefinite detention may raise issues under the peremptory international law rule against torture. Because of the psychological effects that indefinite detention may have on individuals, it may also entail violations of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.”

86 This does not mean that a majority of all detained Iraqis chose to remain in prison: by definition, the people interviewed by Human Rights Watch in Roumieh prison were people who had not returned to Iraq.

87 Human Rights Watch interview with Iraqi man (No. 44), Roumieh Prison, Greater Beirut, May 11, 2007.

88 The Iraqi embassy in Beirut issues a letter to Iraqis in detention who make their own travel arrangements to return to Iraq. With this letter, Iraqis wishing to return to Iraq from Lebanon can obtain a 50 percent discount on the one-way fare from Beirut to Baghdad from Iraqis Airlines, the Iraqi national airline. If they prefer to use an airport other than Baghdad, they need to pay for a ticket with a different airline, for which no discounts are available.

89 Human Rights Watch interview with Alhamhal H. Alsafi, consul, and Khaled M. Al-Mashhadani, first secretary, Iraqi embassy in Lebanon, Greater Beirut (Hazmiye), April 19, 2007. Prior to each such visit to Roumieh, the Iraqi embassy asks General Security for all Iraqi detainees who have served their sentence  and who are held in different prisons in  Lebanon to be sent to Roumieh prison.

90 Email from IOM-Lebanon to Human Rights Watch, June 7, 2007.

91 Email from IOM-Lebanon to Human Rights Watch, June 7, 2007.

92 Emails from IOM-Lebanon to Human Rights Watch, June 7, 2007, and June 19, 2007.

93 Email from IOM-Lebanon to Human Rights Watch, May 17, 2007, and June 7, 2007. IOM was not able to say whether any of the 62 detained returnees left family members behind in Lebanon. Although they left individually, IOM said, “This does not mean all are unmarried.” IOM said that the Iraqi embassy and UNHCR “usually also alert us to situations in which they are aware of spouses or other family members in Lebanon,” and that IOM seeks to clarify the possible consequences for families in its counseling “and to discourage the provision of assistance, as appropriate.” Email from IOM-Lebanon to Human Rights Watch, July  18, 2007.

94 Human Rights Watch interview with Alhamhal H. Alsafi, consul, and Khaled M. Al-Mashhadani, first secretary, Iraqi embassy in Lebanon, Greater Beirut (Hazmiye), April 19, 2007.

95 Human Rights Watch interview with Alhamhal H. Alsafi, consul, and Khaled M. Al-Mashhadani, first secretary, Iraqi embassy in Lebanon, Greater Beirut (Hazmiye), April 19, 2007.

96 Human Rights Watch interview with Stephane Jaquemet, UNHCR representative in Lebanon, Beirut, March 23, 2007.

97 Human Rights Watch interview with Iraqi couple (No. 57), Greater Beirut (Dahieh), April 25, 2007.

98 Human Rights Watch interview with Iraqi woman (No. 59), Beirut, April 26, 2007.

99 Human Rights Watch interview with Iraqi woman (No. 58), Beirut, April 26, 2007.

100 Human Rights Watch interview with Iraqi man (No. 56), Greater Beirut (Dahieh), April 25, 2007.

101 Human Rights Watch interview with Iraqi man (No. 89), Roumieh Prison, Greater Beirut, May 11, 2007.

102 Human Rights Watch interview with Iraqi man (No. 42), Roumieh Prison, Greater Beirut, April 23, 2007.

103 Human Rights Watch interview with Iraqi man (No. 41), Roumieh Prison, Greater Beirut, April 23, 2007.

104 Human Rights Watch interview with Iraqi man (No. 69), Roumieh Prison, Greater Beirut, May 3, 2007.

105 Human Rights Watch interview with Iraqi man (No. 95), General Security Prison, Beirut, June 1, 2007.

106 Human Rights Watch interview with Iraqi man (No. 23), Greater Beirut (Dahieh), April 17, 2007.

107 Human Rights Watch interview with Alhamhal H. Alsafi, consul, and Khaled M. Al-Mashhadani, first secretary, Iraqi embassy in Lebanon, Greater Beirut (Hazmiye), April 19, 2007.

108 Human Rights Watch interview with Iraqi family (No. 15), Greater Beirut (Za`taria), March 31, 2007.

109 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture),

adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered

into force June 26, 1987, art. 3.

111 UN General Assembly Resolution 51/75, UN Doc. A/RES/51/75, February 12, 1997, para. 3.

112 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, December 12-13, 2001, UN doc. HCR/MMSP/2001/09, January 16, 2002, para. 4.

113 UN General Assembly Resolution 57/187, UN Doc. A/RES/57/187, December 18, 2001, para. 4.

114 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Lebanon acceded to the ICCPR on November 3, 1972.

115 Decisions of the Human Rights Committee, A v Australia No 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 (1997); C v Australia No 900/1999, op.cit.; Baban v Australia No 1014/2001, U.N. Doc. CCPR/C/78/D/1014/2001 (2003) , Bakhtiyari v Australia, U.N. Doc CCPR/C/79/D/1069/2002 (2003).

116 For a detailed analysis of Lebanon’s obligations under international and Lebanese law regarding the detention of refugees and asylum seekers, see Frontiers (Ruwad) Association (Beirut), “Legality vs. Legitimacy: Detention of Refugees and Asylum Seekers in Lebanon,” May 2006, www.frontiersassociation.org/pubs/ArbitraryDetentionFINALMAY2006.pdf (accessed August 3, 2007). See also the criteria established by the U.N. Working Group on Arbitrary Detention to determine when deprivation of liberty is arbitrary. Office of the United Nations High Commissioner for Human Rights, “Fact Sheet No. 26, The Working Group on Arbitrary Detention,” www.ohchr.org/english/about/publications/docs/fs26.htm (accessed August 3, 2007). The European Court of Human Rights has likewise held that while detention pending deportation is lawful,  proceedings to deport must be in progress and to be prosecuted with due diligence. In Quinn v. France (judgment of March 22, 1995, Series A no. 311) the Court found France to have subjected the applicant to arbitrary detention because the detention lacked proportionality and the state had not conducted the relevant proceedings with due diligence. See also Chahal v United Kingdom, judgment of November 15, 1996, Reports of Judgments and Decisions 1996-V.

117 UNHCR has started a legal aid project, with the aim of providing legal representation for asylum seekers and refugees, including those who are in detention. The project is financed by UNHCR and is implemented together with Caritas, in coordination with the Bar Association’s Legal Aid Commission. Human Rights Watch interview with Dominique Tohme, UNHCR Senior Protection Assistant, Beirut, April 30, 2007.

118 The group consisted of 13 individuals, including a married couple with one child, and another married couple with two children. No charges were brought against the two families, but the remaining six members of the group, including a 70-year-old woman, were all charged with illegal entry. Moreover, while no charges were brought against any members of the two families, the two husbands were kept in detention under the authority of General Security. They were subsequently released from detention. Human Rights Watch interview with Dominique Tohme, UNHCR Senior Protection Assistant, Beirut, April 30, 2007.

119 Lebanon constitution, May 23, 1926, as amended August 21, 1990 (amendments came into force on September 21, 1990), www.unhcr.org/cgi-bin/texis/vtx/rsd/rsddocview.pdf?tbl=RSDLEGAL&id=44a24a674 (accessed August 15, 2007), preamble, para. (b). The legal submissions that were made on behalf of these Iraqi refugees argued that, in the alternative, any sentence should be suspended under article 227 of the Criminal Code, which provides for the suspension of sentences for criminal acts committed under duress, or, alternatively, under article 229 of the Criminal Code, which provides for the suspension of sentences of necessity, where a criminal act was committed in order to avoid a grave and imminent danger, provided that the act was proportional to the danger to be avoided.

120 Lawyers have since attempted to obtain a pronouncement from the Cassation General Prosecutor on the unlawfulness of detaining Iraqi refugees. Human Rights Watch interview with Dominique Tohme, UNHCR Senior Protection Assistant, Beirut, April 30, 2007. As of August 31, 2007, the case was still pending. Email from UNHCR-Beirut to Human Rights Watch, August 31, 2007.

121 UNHCR has since secured the release of most of the Iraqi refugees in question. Human Rights Watch interview with Dominique Tohme, UNHCR Senior Protection Assistant, Beirut, April 30, 2007.

122 Human Rights Watch interview with Dominique Tohme, UNHCR Senior Protection Assistant, Beirut, April 30, 2007; and Human Rights Watch interview with Samira Trad, Director, Frontiers Association, Beirut, March 26, 2007.

123 Decision of the court of appeal in Beirut (chamber 9) in the case of Sajid Ilia, President Tanious al-Khoury, No. 2001/580, June 20, 2001, as referred to in Frontiers (Ruwad) Assocation (Beirut), “Legality vs. Legitimacy: Detention of Refugees and Asylum Seekers in Lebanon,” May 2006, www.frontiersassociation.org/pubs/ArbitraryDetentionFINALMAY2006.pdf (accessed August 3, 2007), p. 26. However, the court of appeal upheld the sentence of imprisonment for illegal entry. The court authorized Mr. Ilia’s stay in Lebanon until such time as Mr. Ilia could be resettled to a third country with the assistance of UNHCR. Ibid. A similar outcome was obtained in the case of a Sudanese refugee, Makir am din Nutout. Decision of the court of first instance in Beirut, No. 2003/1119, as referred to in Frontiers (Ruwad) Assocation (Beirut), “Legality vs. Legitimacy: Detention of Refugees and Asylum Seekers in Lebanon,” May 2006, www.frontiersassociation.org/pubs/ArbitraryDetentionFINALMAY2006.pdf (accessed August 3, 2007), p. 26.

124 IOM, Constitution, October 19, 1953, as amended by amendments adopted on May 20, 1987, and entered into force on November 14, 1989, www.iom-iraq.net/iomConstitution.html (accessed August 3, 2007).

125 See also IOM, “IOM Return Policy and Programmes: A Contribution to Combating Irregular Migration,” MC/INF/236, November 5, 1997, para. 6, footnote 3, which states: “IOM considers that voluntariness exists when the migrant’s free will is expressed at least through the absence of refusal to return, e.g. by not resisting to board transportation or not otherwise manifesting disagreement. From the moment it is clear that physical force will have t o be used to effect movement, national law enforcement authorities would handle such situations.”

126 IOM-Iraq, Regional Operations Centre (ROC), www.iom-iraq.net/roc.html (accessed August 3, 2007).

127 Email from IOM-Iraq in Amman to Human Rights Watch, July 18, 2007.

128 Human Rights Watch interview with Iraqi man (No. 43), Roumieh Prison, Greater Beirut, April 23, 2007.

129 Letter from Rafiq Tshannan, head of mission for IOM in Iraq, to the Iraqi Embassy in Beirut, September 24, 2007, translated from the Arabic by Human Rights Watch and on file with Human Rights Watch.

130 IOM, “IOM Return Policy and Programmes: A Contribution to Combating Irregular Migration,” MC/INF/236, November 5, 1997, para. 2(f). (Emphasis added).

131 UNHCR, “Return Advisory and Position on International Needs of Iraqis Outside Iraq,”April 30, 2007 (revised version; original version December 18, 2006), www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=SUBSITES&id=45a252d92 (accessed July 1, 2007), p. 4.