Post-war outflow of people from Iraq creates dual challenge

States meighboring Iraq must take steps both to protect refugees and to Iientify and hold accountable human rights abusers
Lawyers Committee for Human Rights recommendations to States on how to meet these obligations

Even as the intensity of conflict abates in Iraq, widespread instability and uncertainty continues to prompt Iraqis and other nationals to flee and seek safety elsewhere. Some are in search of temporary protection, a respite from the chaos of a country emerging from a quarter century of oppression where new forms of ethnic and political tension have been unleashed and humanitarian and security conditions remain volatile.

Others who are seeking to leave Iraq fear more sustained persecution from sources which will not be contained in the new disorder; these include refugees from other countries who are concerned about the impact on their safety of the new political realities.

At the same time, mixed in with the outflow, may be individuals who committed some of the egregious human rights abuses which characterized the regime of Saddam Hussein. They may also be trying to make it across the border to neighboring countries -not as victims of violations seeking refuge from persecution- but criminals attempting to escape accountability.

Such potent political and humanitarian realities are creating critical challenges for those charged with responding to the movement of people in the region. Middle East governments have clearly expressed apprehensions about the economic, political, and security implications of populations crossing from Iraq into their territory. In recent weeks, reports of border closures, rejection at the frontier and expulsions of Iraq nationals on grounds of security, seem to be on the increase.

In November 2002 the Lawyers Committee published Refugees, Rebels and the Quest for Justice, a report which examined the trio of obligations which collide when security concerns, displacement and the desire to combat impunity for serious crimes come together in situations of conflict. The report explored how in such contexts, not only must refugees be protected and the security of local host communities assured-holding human rights violators accountable for their crimes is also essential if the cycle of impunity and instability is to be broken.

The challenge

As an initial matter, it is critical that those fleeing Iraq be protected from harm. On 27 April the U.N. High Commissioner for Refugees (UNHCR) urged States neighboring Iraq once again to continue to protect Iraqi and other refuges fleeing the conflict there at this delicate time. We echo this call. We urge States not to expel Iraqi nationals and others in flight from Iraq, or to prevent them from entering their territories, without first clearly determining that they will not be in danger of persecution if returned to Iraq.

But in addition to their obligations to protect refugees, States also have an obligation to ensure that those who have committed serious human rights abuses be held accountable. The former Government of Iraq engaged in widespread, gross violations of human rights for more than 25 years, including political killings, torture, arbitrary detentions, and genocide. Serious war crimes, including grave breaches of international humanitarian law, were also committed by Iraqi officials. Among these violations were the violent attacks against the Kurds in the late 1980s, including use of chemical weapons, and the assaults against Shi'a in the South of Iraq in 1991, where villages were burned and thousands of civilians forcibly displaced.

To ensure that those who flee Iraq to seek impunity for their crimes cannot disguise themselves as refugees, the Lawyers Committee urges that a screening process be instituted for the refugee population in neighboring States. Conduct of a screening process in line with international standards would permit government authorities to identify those who pose a threat to security, or who have committed serious crimes, while ensuring that refugees and others genuinely in need of safety continue to be protected.

The Lawyers Committee's recommendations

In the screening of refugee populations, the Lawyers Committee recommends that States neighboring Iraq, the United States and other Occupying Powers in Iraq, and the broader international community be guided by the following principles of international law :

1. Refugees have the right to flee.

It is a principle of international law that refugees may not be summarily turned back at the frontier. Even in situations of large-scale influx, or where security concerns are heightened, States have an affirmative obligation to ensure that those seeking safety are not be sent back to face persecution. Those who are found to require protection as refugees must be permitted to receive at least temporary protection and assistance. In a statement on the first day of the Iraq conflict the U.N. High Commission for Refugees urgently appealed to all governments neighboring Iraq to keep their borders open to those seeking protection.

States bordering Iraq have accepted international obligations relating to the protection of refugee rights to varying extents. Iran is alone among Iraq's neighbors in having ratified the 1951 U.N. Refugee Convention and its Protocol. Turkey, while a party to the 1951 U.N. Refugee Convention, restricts recognition of refugee status to refugees of European origin. Although Jordan, Kuwait, Saudi Arabia and Syria have not signed the 1951 U.N. Refugee Convention they are bound under human rights law and customary international law to provide basic safeguards to those fleeing war and persecution. They are obliged at a minimum, to permit fleeing refugees to at least temporarily enter their territory and not to return them to a place where they would be in danger of persecution and serious violations of their human rights.

The Arab Charter on Human Rights (1994), adopted by the Council of the League of Arab States, specifically provides that, even in times of emergency, no derogations from the guarantees in the Charter relating to political asylum are permitted (Article 4).

2. States have the sovereign right to control access to territory.

States neighboring Iraq may, of course, take measures to control access to, and movement within their territory, provided that this does not result in refugees being returned to danger. These include:

Screening for armed fighters: International law requires that arriving refugees are screened to ensure that combatants or armed fighters are not among them. Separating fighters from the general refugee population is vital to preserving the security of refugee settlements -among other reasons, in order to prevent refugees from becoming targets of attack. Such separation is also necessary in order to preserve neutrality during a conflict.

Combatants and armed fighters cannot benefit from protection as refugees -they must be dealt with under the law of armed conflict. Active combatants, for example, may be interned. Where it is clear that those who have been participating in the fighting intend to permanently lay down their arms and embrace civilian status, they may be considered for protection as refugees.

Screening for those who should be "excluded" from refugee protection: When an individual requests protection as a refugee, an examination of the need for protection must include consideration of whether or not there are serious reasons for considering that the individual has committed a serious crime. States are required by international refugee law to ensure that those who have committed serious crimes are identified and "excluded from" protection as refugees, with a view to combating impunity.

If an individual is found to be excluded from refugee protection, the authorities have a twofold duty. They must ensure, as far as possible, that the allegation of wrongdoing is investigated, and that serious criminals are brought to justice, in a manner which adheres to international fair trial standards. At the same time, no matter how atrocious their crimes, the host State must guarantee that such persons continue to benefit from basic international human rights protection.

A decision to exclude an individual from refugee status is not a conclusive determination of guilt -it is simply a judgment that there are serious reasons to consider that the individual may have committed the crime in question. Subsequent to a fair trial, if the individual is found innocent of the charges, his or her case for protection as a refugee must be re-examined.

Screening for those who may be considered as a threat to national security or a danger to society: Once an individual has been determined to be in need of international protection, States may also consider whether or not there are security concerns which justify imposing restrictions on how the refugee exercises his or her rights (for example, those relating to freedom of movement). The host State might also request another State to grant protection to the refugee if there are compelling reasons to do so. Resettlement outside the region, for example, might be considered.

Screening procedures must be conducted in line with international principles relating to due process. Further, any restriction of rights which results from screening must only be imposed on an individualized basis: for example, family members of a person excluded from refugee status may not themselves be automatically excluded. Finally, UNHCR staff must be permitted access to border areas, and to persons seeking protection as refugees who are submitted to a screening process by the authorities.

3. Granting refugee status is a peaceful act.

A cornerstone of refugee law is that the recognition of refugee status must be considered as a purely humanitarian act -admission by States in the region of Iraqis or others seeking safety in their territories should not be viewed as hostile conduct by any of the parties to the current conflict in Iraq. The conduct of appropriate screening procedures, both to identify active combatants, and those who have committed serious crime, is an essential element of the provision of asylum.

4. Summary expulsion is not permissible.

Automatic expulsion or rejection at the frontier of individuals seeking protection as refugees violates vital international standards and puts genuine refugees in danger.

First, although States are required to screen for, identify and separate out those who may have committed serious international crimes, the principle of non-refoulement obliges States to ensure that expulsion or rejection at the frontier, does not result in an individual being returned to serious persecution. Any person seeking protection as a refugee must thus be given an opportunity to have his or her case heard. In order for that determination to be made fairly, temporary entry to the host State is usually required. Entry to the State does not, of course, preclude detention of the individual or indeed eventual expulsion, pending determination of his or her status.

Second, in relation to many of the most heinous of crimes, States have a clear obligation to either prosecute or ensure that a fair prosecution takes place elsewhere. Simply pushing back a suspected war criminal at the border ignores the responsibility of States to ensure international justice for the most terrible of crimes.

Finally, a person who is excluded from refugee protection because of serious reasons for considering that he or she has committed grave crimes must not, at a minimum, be returned to serious violations of his or her human rights. A State must therefore take into account the kind of treatment, or type of prosecution, to which the individual will be submitted if removed or expelled-an obligation which requires careful examination of each particular situation.

5. War Criminals and other human rights violators must be held accountable.

Once a person suspected of having committed serious crimes has been identified, States should seek, and in some cases are obliged, to submit suspected criminals to trial, in line with international standards. For example, the Geneva Conventions - to which all states in the Middle East region and most in the world are party - obliges states to pursue those responsible for serious violations of international humanitarian law and to make sure they are brought before a court. (See, e.g., Article 146 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949.)

There are a variety of options which may be open to a State: prosecution in the host State, prosecution in the country of origin, prosecution in a third State or prosecution by an internationally constituted court.

Whatever the accountability option chosen, States must ensure that the basic human rights of those awaiting trial or those who are returned outside the State for prosecution continue to be guaranteed. These include the right not to be subject to torture and the right to a fair trial.

6. United Nations should play key role in shaping justice mechanisms.

In the aftermath of the war in Iraq, some of those who committed egregious human rights abuses may attempt to flee to neighboring countries. It is imperative that they be brought to justice.

All members of the international community have a shared interest in ensuring that there is no impunity for international crimes and in assisting each other in achieving that objective. (See Rome Statute of the International Criminal Court, 1998, Preamble.)In the case of Iraq, the Lawyers Committee believes that justice is best served, and the responsibility of the international community most appropriately shouldered, by the initiation of a U.N.- sponsored process to look at options for dealing with accountability, including the possible establishment of an international criminal tribunal under the auspices of the United Nations.

We believe that only an international forum can guarantee independent, impartial, and fair trials of the senior leadership of Iraq in a way that will have legitimacy and reassert the primacy of the rule of law in Iraq and in the region. To this end, we have called upon the U.N. Security Council to request the Secretary-General to appoint a commission of inquiry with a mandate to initiate investigations of the international crimes committed and to recommend an appropriate model of tribunal. This should be set in motion with the utmost urgency.

We urge the governments of Iran, of Syria and all other members of the Arab League - as well as the United States, Britain, Australia, Poland and other governments - to support an appropriate forum tasked with ensuring accountability for the worst human rights violations in Iraq. We urge them to publically state their commitment to putting in place a system that combats impunity for the most serious crimes, as an element of the creation of a genuine system of international justice. We call upon them further to work actively with other nations for the creation of such a tribunal and ask members of the international community to support this call.

7. Protecting refugees is a collective international responsibility.

Protection of refugees is a collective international responsibility. But on the ground, it is States neighboring Iraq which are now being called upon to protect the majority of those currently in flight. Many of the region's governments have legitimate concerns about the security and other impact of the arriving populations. The international community should assist States in the region to fulfill their refugee protection obligations in a manner consistent with their own security, and that of the region. This might take the form of support for the activities of the United Nations High Commissioner for Refugees (UNHCR), including provision of technical and material resources for the carrying out of screening activities, contributions of humanitarian aid, and consideration of appropriate cases for refugee resettlement.