JURIST Guest Columnist Perveen Ali, Ph.D. candidate in the Department of Law at the London School of Economics and Political Science, is currently researching issues of international refugee and human rights law. Here she discusses the challenges Iraqi refugees face in returning home safely and with dignity...
he 2003 war in Iraq
and subsequent internal security crisis led to the forced displacement of four million Iraqis. Insurgents, counter-insurgency operations and sectarian militias targeted persons for their religious, ethnic and political affiliations, subjecting them to kidnappings, rapes, murders, torture, lootings and evictions. Nearly two million Iraqis sought refuge in Syria, Jordan and Lebanon, where they found themselves living in legally precarious situations. Often having no long-term residence or work permits and limited access to public services, they live in fear of arrest, detention and deportation to the violence they escaped in Iraq. Following the 2011 withdrawal of US forces from Iraq, more than 1.6 million Iraqi refugees remain in the region in search of a solution to their plight.
Within the framework of the international refugee protection regime, the traditional "durable solutions" sought for refugees include local integration in their country of asylum, resettlement to a third country or voluntary repatriation to their country of origin. In the Iraqi refugee crisis, local integration seems an unlikely prospect as asylum states in the Middle East claim that they are overburdened. Resettlement to third countries, such as the US, will provide protection for more than 100,000 Iraqis having specific vulnerabilities, such as those who worked with the Multinational Forces or US government contractors in Iraq. The question then is, what is the future for the vast majority of Iraqi refugees remaining? Absent the political willingness of states to allow for local integration or to increase their resettlement quotas, the only other solution under consideration is voluntary repatriation to Iraq.
The right to return to one's country of origin is enshrined in international human rights instruments, including the Universal Declaration of Human Rights, Article 13(2), and the International Covenant on Civil and Political Rights (ICCPR), Article 12. However, repatriation must be voluntary, and refugees must be able to "return in safety and with dignity." The core components of safe and dignified return are identified in the UN's 2002 Global Consultations on International Protection [PDF] and are elaborated further in the Office of the UN High Commissioner for Refugees' (UNHCR) 2004 Handbook for Repatriation and Reintegration Activities [PDF]. They include physical, legal and material safety and reconciliation. Given the ongoing security crisis, political instability, fragile infrastructure and human rights violations that plague the new Iraqi government, each of these components presents particular challenges to successful repatriation.
Securing the legal, material and physical safety of Iraqi refugees will foremost require determining where they will live upon their repatriation to Iraq. The right to return has been interpreted to include the right to return to one's home in Article 12 of the ICCPR, Principle 28 of the Guiding Principles on Internal Displacement and by the former Sub-Commission on Prevention of Discrimination and Protection of Minorities. This right was also recognised in Annex VII of the Dayton Peace Agreement in the case of Bosnian refugees. However, the prospect of many Iraqis returning to their original homes will be difficult to realise in practice. The ethnic cleansing of their former neighbourhoods and the appropriation of their homes by violent militias has left many Iraqi refugees with no place to which they can return. Some refugees also had to sell their property in Iraq to cover their living expenses in their countries of asylum. Iraqis who attempt to return to Iraq may find their homes looted, destroyed or occupied. This places them at risk of further displacement to squatter settlements inside Iraq, where they would join the nation's currently 1.3 million internally displaced persons living in destitution, lacking access to basic services and fearing eviction. The successful repatriation of Iraqi refugees will require the creation of relocation and housing schemes, and effective property restitution mechanisms that will be able to accommodate returnees without exacerbating the precarious political, economic and security situation in the nation.
Iraqi refugees' legal and material safety is further compromised by limited employment opportunities, and continuing problems accessing public services, such as electricity, sanitation and potable water in Iraq. A 2011 report by the International Rescue Committee (IRC) noted that these problems are compounded by the frequent lack of documents necessary for enrolling in public schools, reclaiming confiscated property, accessing medical care, qualifying for food rations and applying for jobs. Undergirding these obstacles is a deep lack of trust in Iraqi governmental institutions, which are still in their formative stages and face allegations of corruption, political manipulation and lack of transparency. Legal assistance, such as that provided by the IRC and UNHCR, can provide critical help in navigating the complexities of these new bureaucracies to returning Iraqis.
Reconciliation is perhaps the most tenuous component of effective repatriation. Both the sectarianisation of Iraq and debates over the country's political future, as either a unified or federal state, have significant implications for reconciliation. Prospects for reconciliation are also impacted by the profound trauma that many Iraqis endured both under the former regime and in the aftermath of the war. Some refugees may find it too psychologically onerous to return to Iraq and participate in reconciliation processes in light of the extreme violence that forced them to flee. In such cases, should country conditions in Iraq change and be deemed stable in the future, these persons should continue to receive protection in accordance with Article 1C(5) of the 1951 Convention Relating to the Status of Refugees [PDF]. Asylum states should refrain from their deportation, and the international community should secure alternative solutions for them.
In the face of such serious obstacles to return, Iraqi refugees have been slow to take advantage of repatriation programs, primarily only doing so when facing severe economic hardships or having expired visas in their countries of asylum. The UN documented that by 2008, 220,000 refugees had returned to Iraq. But in a 2009 report [PDF], the International Organization for Migration noted that rather than returning permanently, many Iraqi refugees in Syria and Jordan travelled back and forth from Iraq, sometimes voluntarily and other times due to repeated forcible displacements. Numerous reasons necessitated these temporary returns, including going to assess the security situation, seeing elderly parents, attending funerals, collecting pensions, borrowing money and selling property. A 2010 survey by the UNHCR revealed that the majority of Iraqis who did attempt to repatriate permanently reported having insufficient resources to meet their families' needs in Iraq and being subjected to bomb explosions, kidnappings and harassment in the areas to which they had returned.
The government of Iraq is developing a plan of action to facilitate the effective return and reintegration of refugees. In 2008, it allocated USD 213 million to support these efforts, and subsequently provided financial and transportation assistance to returnees. In a 2009 report [PDF], the Brookings-Bern Project on Internal Displacement concluded that the effective repatriation of refugees will also require building peace and security, governmental institutions and law and policy frameworks supporting displaced persons in keeping with the International Compact with Iraq [PDF] and Iraq's National Policy on Displacement [PDF]. It further recommended including displacement issues in national development strategies and providing continued humanitarian support for refugees in asylum states. More specific activities critical to return should include creating mechanisms for property restitution; allocating housing and land; increasing access to public assistance, education, infrastructure and livelihoods; and developing meaningful transitional justice mechanisms. Ultimately, the success of such strategies will turn on the willingness of the international community and the government of Iraq to acknowledge and grapple with the formidable challenges of repatriation. And central to any durable solutions framework that results, the right of Iraqi refugees to live in safety and with dignity must always be paramount.
Perveen Ali is writing her Ph.D. dissertation on the refugee crisis in the aftermath of the 2003 war in Iraq. She has been a practitioner in the field of refugee protection for the past ten years and has worked for both the UNHCR and refugee legal aid NGOs, primarily in the Middle East and Africa. She received her J.D. from the University of Washington.
Suggested citation: Perveen Ali, The Challenges of Repatriation for Iraqi Refugees, JURIST - Dateline, Jan. 22, 2011, http://jurist.org/dateline/2012/01/perveen-ali-iraq-refugees.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at firstname.lastname@example.org