Western governments have cited the large-scale return of Afghan refugees from Pakistan and Iran as a key indicator of the success of the US-led military intervention in Afghanistan, and the subsequent Bonn Agreement. It has thus been hailed as a vote of confidence in Afghanistans interim, Western-sponsored government, and has been used to justify a more active return policy for Afghan refugees in Europe. In fact, the return was largely a result of a combination of duress and inducement. As European refugee organisations seek to challenge the policies of European governments and their adherence to international standards of refugee protection, it is important to take stock of the nature of the protection accorded the refugees who left Pakistan and Iran during 2002, and to consider the implications for the protection of Afghan refugees in Europe.
For rural Afghans, the Soviet military intervention in Afghanistan in December 1979 was an assault by a secular power on an Islamic nation. This assault imposed a religious duty on the population to migrate out of a secularised Afghanistan into countries where Islam still prevailed. Pakistan and Iran similarly saw their acceptance of these religious migrants, or muhajirin, as a religious duty. Iran, though a signatory to the 1951 Refugee Convention, did not regard the 2.9 million people who entered its territory as refugees within the terms of the Convention. Pakistan, which received more than three million Afghans, was not a signatory, so the question of whether these people were refugees under the Convention did not apply.
Thus, from the outset the refugees in Pakistan and Iran enjoyed no legal protection under the 1951 Convention, and their rights have remained tenuous ever since. To a degree, Iran has regularised the right of Afghans to live in Iran for specified temporary periods through registration and associated documentation. However, there have been gaps in this process, in which Afghans have felt extremely insecure. This insecurity has been compounded by arbitrary action by Iranian police, in which individual refugees, mostly young men, have been picked up, sent to detention centres and then deported. Their documentation has often simply been torn up. Iran has argued that it has faced a high level of illegal migration, in addition to the refugee flows arising from military and political developments in Afghanistan, and has needed to act firmly to deter this. It has also, quite reasonably, argued that it has taken on a far greater burden than any other state in accepting, at one point, 4.5m refugees from Afghanistan and Iraq, with very limited international financial support.
Until 1992, Pakistan received a reasonable level of financial resources to support the Afghan refugee population. In that year, almost a million went back to Afghanistan to mark the end of the jihad against the Soviet occupation. The ensuing mujahideen war, the Talibans advance and drought in 19982001 saw further outflows. Meanwhile, international assistance declined from 1992. This fuelled official and public hostility towards the refugees so that, finally, following the Talibans advance in the north-east of Afghanistan and the exodus of 170,000 people into Pakistan, the governments tolerance evaporated. UNHCR was not allowed to register the people pouring into a makeshift camp at Jalozai, precluding the provision of tents, food and other supplies. Following months of negotiations, Pakistan reluctantly agreed to allow the creation of new camps, but in remote areas some distance from the urban centres where work could be had.
This approach dictated the response to the further outflow that occurred in the autumn of 2001, as a result of the US-led military intervention in Afghanistan. Pakistan thus permitted UNHCR to establish new camps in designated areas, but insecurity and difficult logistics made progress extremely slow. As a result, large numbers were held in makeshift waiting areas on the Afghan border, and tens of thousands had still not been processed when Pakistan finally stopped new registrations in March 2002, in the context of a repatriation agreement agreed with UNHCR and the Afghan government.
Following the establishment of the new, post-Taliban government at the end of 2001, assisted repatriation agreements were drawn up between UNHCR and the governments of Pakistan, Iran and Afghanistan. These provided for 400,000 people to return from each of Pakistan and Iran over the course of the year. However, by the end of 2002 a reported 1.5m Afghans in Pakistan had returned, along with 261,000 from Iran.
In September and October 2002, the Afghanistan Research and Evaluation Unit (AREU) commissioned a study looking at this return process. The study found that the reasons for return were far more complex than was being presented by the international community, and that refugees had returned to a situation which could barely sustain them. Thus, Iran had been placing steady pressure on Afghans to return, progressively withdrawing their entitlements to health and education services and penalising Iranians who employed Afghans. The Iranian police maintained a climate of fear, with arbitrary arrests and deportations of Afghans and the use of detention centres. The study found that, in 2001, the situation had been regularised, but that those without documentation had been left in an even more vulnerable situation. The Iranian government appears to have permitted a degree of inward illegal migration to meet periodic labour shortfalls in the construction industry, and for menial tasks such as refuse collection, while undertaking large-scale deportations when there was an economic downturn. In 2002, there was a sustained media campaign in which Afghans were advised that it was now time to return, that they would be provided with free transport to their home areas and that the UN would be there to assist them. Returnees were therefore aggrieved to find that UNHCR was making only a contribution to their transport costs, not meeting them in full, and that the UN could provide assistance only to a small fraction of the returnees, and that on a very limited scale.
In Pakistan, it was apparent that the government was seeking to substantially reduce the Afghan refugee population in the principal urban areas, while leaving the camp population to depart at a later stage. Combined with growing police harassment and the closure of one of the major camps, this sent a powerful message that Afghans should not see themselves as having a long-term future in Pakistan. Refugees were also encouraged to return by the media coverage of the donor conference held in Tokyo in January 2002, which gave the clear impression that a substantial amount of funding would be provided for the reconstruction of Afghanistan, and that plenty of jobs would be available.
The AREU report also asked whether the assisted repatriation agreements drawn up between UNHCR and Pakistan, Iran and Afghanistan, which included an assistance package of wheat, cash and some household items, could have reinforced the message from host governments and the international community that it was time to return. Clearly, both the Pakistani and Iranian governments were under enormous internal pressure to send Afghans back. UNHCR was well aware of this, and of the inevitability of large-scale returns even if no assistance was provided to individual returnees. It therefore took the reasonable view that it was better to provide assistance than not. The Afghan government may also have seen some benefit in facilitating a structured repatriation programme, in that its own credibility would be enhanced if large numbers of refugees appeared to be voting with their feet by returning. For the international community, reports of refugees returning in their hundreds of thousands from Pakistan and Iran provided an effective counterweight to reports of chronic insecurity and slow progress in the process of nation-building within Afghanistan.
Conditions in Afghanistan
Whatever the pressures for return, it is clear that conditions are difficult at best. Unlike in earlier years, when UNHCR worked with refugee communities to restore the infrastructure in their villages of origin prior to their return, resources were lacking in 2002 to make this achievable. This has been, in part, a reflection of the fact that Afghanistan had suffered from three years of drought prior to 2002. The international community has thus needed to give priority to alleviating the hardship brought about by the drought. The international community was also not anticipating such a large return from Pakistan, and had not made adequate preparations to provide for such a number. Refugees thus have to depend on whatever aid resources happen to be arriving in their home areas. There have been particular problems in the Shomali Valley, to the north of Kabul, where a major programme of infrastructure repair should have preceded returns to an area severely damaged by a scorched-earth campaign by the Taliban. The infrastructure of housing and basic public services in Kabul, which has received the largest concentration of returnees, has also come under severe strain. Furthermore, the economic revival that the returnees had been led to expect has been extremely slow in coming, and jobs are scarce.
Refugees are returning to a country where the authorities are in no position to accord them security. Efforts to build a national army and police force are still at an embryonic stage and, even in Kabul, the protection provided by the International Security Assistance Force (ISAF) is more symbolic than real. UNHCR does not have the resources to monitor resources effectively to address possible protection concerns, even though it is doing what it can within the resources available. The individual returnee is, therefore, potentially highly vulnerable to summary justice.
Repatriation or resettlement?
The return of refugees to Afghanistan from Pakistan and Iran in 2002 can be seen in the context of a long-standing policy approach by UNHCR, supported by Western governments, that sees repatriation rather than resettlement as the desirable solution. Resettlement has not been an option for Afghan refugees in either Iran or Pakistan, although both countries have acquiesced in high levels of unregistered economic migration over many years. The temptation to present repatriation as a success is therefore considerable, yet return programmes are rarely straightforward. The Afghan economy, like many affected by long-term conflict, is not in a position to receive a large influx of people. The fact that almost two million returned within months of an interim government being formed, with the infrastructure requiring a major programme of investment, has placed a major strain on both the government and the aid community. It could be argued that UNHCR should have discouraged refugees from returning to Afghanistan during 2002, and should have done what it could to prevail upon Iran and Pakistan to ease the pressure on their refugee populations. If UNHCR had done this, it would have been able to send a clear message to European governments that they should also exercise patience. Instead, Western governments feel able to reduce the protection accorded to Afghan asylum-seekers and refugees within their own borders.
Peter Marsdenis Information Coordinator of the British Agencies Afghanistan Group (BAAG), which brings together British NGOs to share information and debate key issues relating to programming in Afghanistan.
The BAAG Project produces a monthly analysis of the political, economic and security situation in Afghanistan through the BAAG Monthly Review. This can be found on www.baag.org.uk, www.refugeecouncil.org.uk or reliefweb.int.
International refugee law is seen by many as constitutive for national refugee policy. Yet, as asylum has become politicized, many countries have adopted procedural and physical deterrence mechanisms to prevent refugees from accessing protection. The present article examines these policies, as well as the legal responses to them, as a critical case study for understanding the relationship between international law and refugee policy. Based on a theoretical triangulation of the dominant accounts of the interplay between international law and politics within liberal, realist and critical legal studies scholarship, it is argued that the two should rather be seen in a dialectic process of co-evolution. This speaks both to the continued power of international refugee law, but also to the instrumentalist approach of certain states trying to contest or circumvent their international legal commitments.
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