RE: Policy of Returning Kurdish Iranian Refugees Back to Northern Iraq

Dear Mrs. Ogata:

We are writing to ask you to reassess and reverse the policy of classifying as Irregular Movers (IM) and returning Kurdish Iranian refugees to Northern-Iraq which is being implemented by the UNHCR Office in Turkey. We previously requested clarification of this policy in our letter dated August 30, 1997 to Mr. El Ouali, Senior Legal Advisor, CASWANAME, but we did not receive any reply.

We are critical of the UNHCR's IM policy of returning Kurdish Iranian refugees back to Northern Iraq because:

• Refugees have a fundamental right to safe asylum, at the heart of which lies the right to physical security in the country they are given asylum. They should also not be forced back from their country of asylum to a place where they may be persecuted and should be ensured that their other basic human rights are adequately respected.
• UNHCR has been entrusted with the responsibility of ensuring that refugees receive safe and true asylum, as described above.

1. An acceptable level of security for Kurdish Iranian refugees in Northern Iraq already exists; and

2. Increased UNHCR resettlement activities in Northern Iraq are such that resettlement opportunities should no more be an incentive for refugees to cross the Turkish border

The attached report entitled "Unsafe Haven: The situation of Kurdish Iranian Refugees in Northern Iraq," realistically describes the precarious situation confronting these refugees. The report finds that due to the general instability and chaos of the region, intra-Kurdish politics, and increased activities of Iran's agents, Iranian Kurds in Northern Iraq have become easy targets of attack by their government. The report further indicates that refugees, along with active members of opposition parties, have been victims of attacks and abductions while hopelessly waiting for the UNHCR to resettle them in a third country.

We recognize that UNHCR's resettlement program from Iraq showed slight improvement in 1996 in comparison to previous years (514 refugees were resettled in 1996 from the 2,400 assessed caseload in comparison to 255 from 1,460 in 1995 and 280 from 2,000 in 1994). However, based on the following factors, we strongly feel that this increase is inadequate and will not support the satisfactory resettlement of refugees from Northern Iraq in safe third countries:

1)UNHCR's increased efforts in 1996 to resettle refugees from Iraq was still only a fifth of its initial assessment caseload--which is evidently a minimal assessment due to lack of resettlement opportunities;

2)The total number of refugees in need of resettlement from Iraq in 1996 is at least five times more than the minimally assessed caseload: this includes 3,682 refugees in the North and at least 8,000 of the 20,080 refugees in Altash camp in the government controlled area who had not registered for voluntary repatriation;

3)There has been no progress in the past two years for the repatriation of the 12,000 refugees in Altash camp who volunteered for repatriation in 1995 reportedly as a result of losing hope for resettlement in a third country; and

4)As reported by the UNHCR, the majority of the resettled cases in 1996 were from the Altash camp and not from Northern Iraq.

Furthermore, we also want to express our deep concern at indications that the IM policy has been dictated to the UNHCR by the Turkish government. It is hard not to notice that the IM policy followed a long campaign of arbitrary deportation by the Turkish border police of ex-Northern-Iraq Kurdish Iranian refugees. The policy also immediately preceded an extensive campaign by the Turkish authorities to deport hundreds of other such refugees who were residing illegally inside the country and receiving assistance from the UNHCR.

UNHCR-Turkey turned a blind eye over these campaigns and allowed Turkey's breach of the most essential component of refugee status and asylum to go unchallenged. Article 33 of the UN Convention and the principle of non-refoulement clearly proscribe the return of refugees to the frontiers of territories where their life or freedom would be threatened. It was further disingenuous of this Office to justify the inaction by suggesting that "a refoulement is a forcible return to a refugee's country of origin and not to a country of first asylum," since, fifty years ago, the travaux preparatories of the UN Refugee Convention had intentionally worded Article 33 of the Convention to make it clear that the principle of non-refoulment applies not only in respect to the country of origin but to any country where a person has reason to fear persecution.

It is alarming that a section of the UNHCR is misinterpreting an essential component of the UN Refugee Convention in a country which has remained among the most recalcitrant European states at implementing the Refugee Convention and Protocol. This oversight is particularly serious, according to your own words, at a time when the declining willingness of States to grant asylum is one of the most disconcerting issues on international humanitarian agenda and when key standards are increasingly being interpreted so restrictively as to lose their meaning and purpose.

We are also disappointed that a section of the UNHCR is misinterpreting and using carelessly the term "Irregular Mover." As defined in the EXCOM Conclusions No. 58, "Irregular Mover" only applied to persons who "have already found protection" but nevertheless "move in an irregular manner" to other countries to "seek asylum or permanent resettlement." In fact, the same Conclusions further recognize that: "... there may be exceptional cases in which a refugee or asylum-seeker may justifiably claim that he has reason to fear persecution or that his physical safety or freedom are endangered in a country where he previously found protection. Such cases should be given favorable consideration by the authorities of the State where he requests asylum..."

Instead of using an incorrect interpretation, we recommend the use of "refugees without an asylum country", a term which was introduced by the High Commissioner in the Thirtieth Session of the EXCOM. In that Session, the Commissioner provided that in circumstances where it can reasonably be said that a refugee does not enjoy "the protection normally associated with asylum, and indeed that he does not have asylum in the true sense of the term," and "he feels obliged to seek asylum in another country, his case should be favorably considered and he should not simply be told that he already has a country of asylum." The High Commissioner even went further in providing that,

"there may, however, also be cases were the prevailing conditions in the country of asylum, e.g. lack of employment or study possibilities, are such to make it genuinely impossible for a refugee to establish himself there. Cases of this kind should normally be resolved in the context of resettlement. Where, however, a refugee, in these circumstances, leaves his country of asylum on his own initiative there may be good reasons for other countries to give sympathetic consideration to his understandable desire to establish himself elsewhere."

1-Stop Turkey from deporting Iranian Kurdish refugees to Northern Iraq and using any measures to deny such refugees access to its asylum procedures.

2-Discontinue UNHCR's IM policy and provide resettlement to all refugees who feel compelled to move from Northern Iraq to Turkey.

Sincerely,
signed
Nancy Hormachea, ESQ
President- Iranian Refugees' Alliance, Inc.