May 1995
Background: Discussions between the Turkish officials and the UNHCR to make new arrangements for determining refugee eligibility of non-European asylum-seekers were reportedly held as far back as August 1993.[1]
These discussions continued to be held behind closed doors. The process has, however, appeared to be uncollaborative and filled with irregularities.[2]
Since July 15, 1994, asylum seekers were notified by the UNHCR Branch Office in Turkey [hereafter Branch office] that the Turkish Government would decide on their refugee applications in order to issue them temporary residence. They were instructed to register and lodge applications for asylum with the Turkish police. However, the Government's regulations on the new procedure were not issued until November 30, 1994. As of this date, new arrivals without proper documents were also instructed to lodge their applications in the governorship closest to their point of entry. Until recently, no written information on the procedure was available for asylum seekers.
The booklet, titled "INFORMATION FOR NON-EUROPEANS REQUESTING ASYLUM IN TURKEY" [hereafter the booklet], recently published by the Turkish Government and the UNHCR, clarifies some of the major issues concerning the new procedure.[3]
It confirms the Government's commitment to establish a state run refugee status determination procedure and, to a large extent, clarifies equivocations regarding UNHCR's role in the new procedure. The booklet is significant in determining whether the two actors of the new system, Turkish Government and the UNHCR, meet their obligations to ensure protection and human rights of asylum seekers in accordance with international laws.
Obligations of the Actors: By exercising sovereign authority to establish a state run refugee status determination system, the Turkish Government is legally and morally bound to observe international obligations and guidelines governing the situation. These obligations include the duty to fairly apply UNHCR guidelines in the refugee determination process and the duty to observe non-refoulement, which prohibits forcible return of a person to a country where his or her life or freedom may be threatened and now hinges on the institution of an appropriate refugee determination procedure. Further responsibilities arise from the UNHCR Statute, in which the UN General Assembly calls upon governments "to co-operate with the United Nations High Commissioner for Refugees in the performance of his function concerning refugees falling under the competence of his office." Under Article 35 of the 1951 UN Convention and Article II of the 1967 Protocol, both of which Turkey is a party, governments are obliged to co-operate with UNHCR and facilitate its task of supervising the application of the UN Convention.
It further follows that states ratifying the 1951 Convention and the 1967 UN Protocol necessarily undertake to respect fundamental individual rights of persons seeking asylum, regardless of whether they are recognized by the host government as "refugees" or are classified as "illegal aliens". The standard of treatment to which all non-citizens are entitled is the same as that applied to nationals, and should not fall below that level. Turkish legal and administrative procedures should be used efficiently to further facilitate the protection of asylum seekers. Other treaties to which Turkey is a party should also be appropriately utilized. Turkey is a party to the European Convention, which prohibits subjecting any one to forcible return to a country when there are serious reasons to believe a person might face a severe violation of basic human rights amounting to torture or inhuman or degrading treatment.
UNHCR's involvement in legal protection of asylum seekers remains critical, since Turkey still maintains the geographical limitation to the Convention not to accept non-European refugees. The fundamental importance of UNHCR's protection function in respect of States whose obligations under the 1951 Convention or the 1967 Protocol are restricted by the geographical limitation is reaffirmed by the Executive Committee of the UNHCR.[4]
One of the most important aspects of protection is that would-be refugees are afforded a just and a fair opportunity to show that they come within the criteria; that they are afforded a fair refugee status determination procedure. The Statute of the UNHCR specifies the organization's fundamental interest in the process of determining refugee status based on co-operation with Governments and combined with a "supervisory role".[5]
The part played by the UNHCR has varied. Although human rights organizations have frequently criticized UNHCR's involvement as inadequate and even at times conflicting with its mandate, there is general consensus that the enterprise has advanced more detailed standards for fair refugee status determination procedures. Additionally, important lessons have been cited when mechanisms were developed to facilitate co-operation with government authorities and supervision.[6]
Early in the discussions with the Turkish authorities the Branch Office indicated that "any reconsideration of respective UNHCR and Turkish Government involvement in refugee recognition procedures would be done in light of the safeguards specified in relevant Conclusions of the UNHCR Executive Committee and other international instruments of refugee law."[7]
However, such reconsideration would comply with the respective laws if there are adequate assurances that resultant obligations are satisfied. Considering that Turkey insists that it will not lift the geographic limitation and thus accept to be bound by the international standards with respect to non-European refugees, it is of utmost importance that Turkey reaffirms unconditional commitment to non-refoulement. Furthermore, in absence of a national legislation, any new legislation for establishing a refugee status determination should be scrutinized and, if necessary, authoritatively clarified by the UNHCR to conform with international standards. In addition, provisions to secure safety and humane conditions for asylum seekers should be sought and finally efficient mechanisms to resettle those recognized as refugees must be established. UNHCR must further ensure that in the long run it is given a "meaningful role" to perform supervision on the procedures, as mandated by the Executive Committee Conclusions.[8]
As a final safety net to prevent return of refugees to possible persecution, UNHCR should be able to exercise its mandate power to declare an individual a refugee, in spite of certain adverse determinations by the Turkish Government.[9]
The New System: According to the booklet, the new Turkish Government refugee determination procedure requires that asylum seekers register with the local police within five days of their arrival. Those who have no travel documents must lodge their applications with the governorship closest to their point of entry. Applicants are interviewed by "a member of the local police". The interview by the police is "the only opportunity" that asylum seekers have to tell the Turkish authorities the reasons for their application. During the interview applicants must give a "precise and detailed description" of their reasons to come to Turkey. The booklet further stipulates that an interpreter be provided to assist the interviewing police officer, who will make a "summary" of the applicant's statements during the interview. The summary is shown to the applicant for accuracy and amendments. The applicant has the option not to sign the notes if her/his requested alterations are not made.
Several governmental bodies and institutions take part in the decision-making process, including the Ministry of Interior, who will assess the claim in conformity with the 1951 Geneva Convention, the Ministry of Foreign Affairs, "the responsible governorship," and "other relevant ministries and organizations." The document states that "UNHCR may present an opinion about an asylum request." The applicant is notified by the governorship about the decision which is provided by the Ministry of Interior in writing. If the application is rejected, the applicant will be deported to the country of the origin or the country before arrival to Turkey. As described in the booklet, if Turkey "is not the first country of asylum" after having left one's country of origin, this "can constitute a reason" not to be granted temporary asylum in Turkey.
If the application is accepted, the applicant is assigned to live in a Turkish city and will be given a "reasonable time" to receive a visa to be resettled in a third country. UNHCR seeks resettlement opportunities for those asylum seekers who receive a positive decision for temporary residence in Turkey. Such opportunities are sought under the condition that resettlement is considered by the UNHCR as "the only solution". The organization also provides "legal counseling" on "serious and urgent" matters for those whose "request for temporary residence has been accepted as well as those for whom a final decision has not yet been taken."[10]
Problems with the system: Although several important questions remain unanswered by the booklet,[11]
a precursory examination of the descriptions given reveals serious flaws at every step of the procedure. Only a few months into the new procedure, there is evidence of greater concern because in practice, treatment is not even in compliance with the provisions of the booklet.
Structural Discrimination: In its opening section, the booklet states that "If Turkey is not your first country of asylum after having left your country of origin or the area in which you were at risk, this can constitute a reason not to give you temporary asylum in Turkey" [Emphasis in original]. By setting a presumption of ineligibility, a considerable number of Iranian asylum seekers who continue to flee to Turkey via Iraq, are categorically denied access to the determination procedure. Such a presumption is against Executive Committee Conclusions which points out that asylum should not be refused solely on the ground it could be sought from another state.[12]
It is ironical that UNHCR gave up a similar policy only a few months ago.[13]
It seems that the policy was reversed by the UNHCR only because it was going to be reaffirmed in a new euphemism.
Appeal: When drawing fundamental requirements for fair determination procedures, the Executive Committee of the UNHCR recognized that the chances of erroneous denial are too great to justify any compromise to appeal a negative decision. In 1977, in its conclusions on refugee status determination, the Committee concluded that if an applicant for refugee status is not recognized by the government to which he or she applies, the applicant should be given a reasonable time to appeal.[14]
The Committee concluded in 1983 that even unsuccessful claims of manifestly unfounded or abusive applications should be eligible for a review of a negative decision before they are rejected.[15]
There are no opportunities for appeal in the new system, either administrative or judicial. Failure to invoke this basic principle of fundamental justice is perhaps the greatest violation in the new system. Such a structural deficiency makes the system stand out conspicuously in not identifying genuine refugees, and forcibly return them to places where they have fled. At the time of this writing, dozens of asylum seekers are reported to have been served deportation orders after cursory interviews with the police. In the absence of a right to appeal, deportations have taken place immediately.
Legal assistance: No form of effective legal assistance is available for applicants prior to the interview--the only moment in the whole process that applicants can present their cases to the authorities. The written information provided in the booklet does not provide meaningful and adequate guidance. The booklet fails to articulate "refugee criteria". The provision that assessments of claims would be "in conformity with the 1951 Geneva Convention" is meaningless to most asylum seekers who are not trained in such legal matters.
Although there is a section that provides guidance on questions asked during the interview, the information is insufficient and misleading in places. The mark of the "Convention refugee" is a "well-founded fear of being persecuted". However, the booklet does not give any clues as to what is considered as "persecution". Thus the door is left open for adjudicating authorities to narrow the interpretation. "Well-founded" in turn means that there must be sufficient facts, not necessarily relating to one's personal experience, so that, if returned to her/his country of origin, the applicant would face a reasonable likelihood of being subjected to persecution. What is implied by the wording in the booklet is much narrower than UNHCR Handbook's guidelines.[16]
Interview: Failure to conduct the interview in accordance with UNHCR guidelines and to record the interview properly, is another unfair factor in the examination process. This is despite the acknowledgment that the interview is the "only opportunity" that an applicant has to tell the Turkish authorities the reasons for one's application.
UNHCR Handbook specifies the role of an asylum "officer" as a partner to the applicant to bring to light the facts underpinning the persecution claim. However, as described below, the interviewing officers assigned in the system--members of the local police--lack the qualifications to fulfill the role.
The specifications about the interview, not only does not impart the required sense of confidence and cooperation between interviewer and applicant but, rather, burdens applicants with unwarranted demands and promotes anxiety and distrust. For example, asylum seekers are "advised" to "offer facts and details" even if "they are not asked directly", while according to the Handbook the applicant does not bear the duty to ascertain such facts and details. It is the examiner who bears the duty to ascertain reasons for persecution, which in order to be fulfilled may require her/him to conduct "independent research" using "all the means at his disposal to produce the necessary evidence."[17]
The biggest irony of the interview process is when the applicant is given the opportunity to correct "the notes of the interview". While there is no doubt that such an opportunity is crucial to present claims accurately and completely, the opportunity would have no effect if there are no guarantees that corrections are actually made. The booklet foresees the situation where disputes between the applicant and the interviewer concerning the recorded statements remain unresolved. However, the proposed resolution is "not to sign the statements"--this hardly solves the problem. The opportunity is, thus, compromised when it is needed the most. Given that only the interviewer's summary of an applicant's statements is kept on record and that each applicant has only one opportunity to present her/his case, such disputes are not going to be resolved at later stages either. Therefore, deciding authorities, who never hear applicants personally, adjudge potentially distorted claims.
These formal deficiencies aside, based on reports received from asylum seekers who have gone through these interviews, it appears that in practice even the above provisions are not fully implemented. Interviews are reported to have consisted of rigid questions cited from a questionnaire, disallowing applicants to offer extra "facts and details". Questions have been reported to focus on certain stereotypes of political activism with opposition organizations which significantly narrows the refugee definition. Details that have been asked were reported to be irrelevant and instead concerned with identifying an applicant's organizational superiors, affairs, structure, and whereabouts.
It is further reported that no interpreters were present at interviews. Some applicants who were interviewed in Nevsehir, reported that an 11 year old asylum seeker who could speak some Turkish was assisting some asylum seekers to communicate. Applicants who were interviewed in Hakkari also reported that they were not availed of the services of an interpreter and if it weren't for other asylum seekers who could speak some Turkish, communication would have been impossible. Subsequently, "notes of the interview" were also not read back to applicants and as reported applicants were requested to sign their statements.
Examining authorities: Another factor of serious concern is the partiality and incompetence of the wide range of decision makers involved in examining applications. The Executive Committee has required that "There should be a clearly identified authority--wherever possible a single central authority--with responsibility for examining requests for refugee status and making a decision in the first instance."[18]
However, according to the booklet the police interviews and other identified and unidentified bodies decide without ever hearing the applicant.
Although UNHCR guidelines have not excluded any particular governmental body from examining asylum applications, they have required that the application should be examined by "qualified personnel having the necessary knowledge and experience, and an understanding of an applicant's particular difficulties and needs."[19]
[Emphasis Added]. Such provisions are required by the Handbook because an "applicant for refugee status is normally in a particularly vulnerable situation . . . in an alien environment" with serious difficulties in submitting his or her case to the authorities.[20]
Members of the local police, apparently do not qualify for interviewing applicants. They do not have the necessary knowledge of the subject matter including human rights and refugee laws. Neither are they knowledgeable about conditions that applicants have fled from or have an understanding of the circumstances concerning asylum seekers. Further, as stated in the Handbook applicants' difficulties may include fear of authority and resultant inability to speak freely and give a full and accurate account of one's case.[21]
The police undoubtedly represent the most typical authority figure invoking fear and intimidation in asylum seekers. Particularly, due to past behavior concerning harassment and ill-treatment of asylum seekers, it is more than unlikely that asylum seekers would be willing and able to talk about fears of persecution to the police.[22]
More so, due to the current political situation in Turkey, Kurdish applicants, feel extremely inhibited to speak about their persecution in Iran.[23]
The on-going war between the Turkish Government and its Kurdish population in Turkey, has put any expressions of Kurdish resistance at risk of reprisal. Those who are interviewed at points of entry, such as Silope, Sirnak and Hakkari are interviewed in the middle of war zones, putting them at further risks.
On the other hand, another basic problem is lack of an independent and impartial arbiter. The booklet provides that the Turkish Interior Ministry will assess the claims in conformity with the 1951 Geneva Convention, however qualifications for making such decisions are not clear. Neither is there an affirmation that the criteria are applied in the manner recommended by the Handbook. Participation of other bodies in the decision making process is reason for greater concern. The Ministry of Foreign Affairs who is one of the identified participant is in charge of two essentially incompatible tasks: While refugee determination should aim at protecting the vital interests of a group of particularly vulnerable people, the Ministry of Foreign Affairs obviously pursues foreign policy interest. Currently, the Ministry is engaged in protocols agreed with Iran concerning common problems against opposition groups fleeing one country to the other and enforcement of extradition agreements. Although the booklet does not state that the Turkish intelligence agency (MIT) is also involved, it is reported that in addition to the interview with the local police, asylum seekers are also interviewed by the MIT. Such involvement makes the examination to even more identify with a policy for treating criminals.
Security and humane treatment: Turkey's "temporary asylum" has denied asylum seekers work, education, freedom of movement and assembly, and effective security. For many, these restrictions have indeed become disincentives to seek asylum in Turkey. By enforcing more onerous conditions, the new regulations aim to deter more asylum seekers from access to asylum. Those who enter Turkey "illegally" suffer beyond all reasonable bounds. They have to reside in border cities, such as Silope, Sirnak and Hakkari, where there is an on-going war with the Kurdish population. Shortage of food, medicine, hygiene and other amenities on one hand and lack of security on the other hand have subjected asylum seekers to conditions that are substantially below international standards for safety and humane treatment of asylum seekers and refugees. Spouses and minor children of asylum seekers who have arrived for reunification after the cut off date for new regulations are obliged to separate in order to follow regulations which strictly require that they reside in border cities. Minor infractions may lead to catastrophic consequences. As stated in the booklet, non-conformity with Turkish "laws and regulations" may lead to an asylum seeker's "deportation". This is despite the fact that deporting asylum seekers on the grounds that they fail to follow formal requirements to lodge an application is against Executive Committee guidelines,[24]
and that such a measure violates Turkey's obligation to non-refoulement.
UNHCR's role: In its specific recommendations to governments about basic requirements for refugee status determination procedures, the Executive Committee specified that when submitting a case to the authorities concerned "[a]pplicants should also be given the opportunity, of which they should be duly informed, to contact a representative of the UNHCR."[25]
The booklet neither duly informs nor provides for such access. Indeed, the five-day time limit to lodge an application with the Turkish authorities makes it extremely difficult for those who, nevertheless, opt to contact the Office of the UNHCR in Ankara before lodging an asylum application. Aside from impeding access, even if asylum seekers approach the Branch Office before they lodge an application, the contact will turn out meaningless, because "legal counseling" is provided by the Office only after an asylum seeker has lodged an application for temporary asylum with the police; and not before, when it is needed the most.
Legal assistance is not the only area that UNHCR does not assist. The agency appears to be excluded from monitoring the interviews, training the interviewers, or even providing guidelines for questioning applicants. As far as refugee status determination is concerned, the booklet stipulates that UNHCR "may present an opinion on a case". Yet it is not clear whether the organization is allowed an opinion on every case and what will result if differences of opinion arise. Given that applicants' cases consist mainly of the "summary" of their statements compiled by the police, even if UNHCR's opinion is sought on every case, the opinions will reflect potential errors and prejudices recorded by the police. Finally, failure to establish provisions, whereby UNHCR can exercise its mandate power and declare a person a refugee at any stage of the process, leaves the door completely open for the Turkish authorities to forcibly return refugees.
Concluding remarks: While other countries have managed to dismantle one or some of the safeguards in refugee determination procedures, only Turkey has succeeded discarding the full set. The new Turkish Government and UNHCR refugee determination procedures is outrageous in its aim to deny asylum seekers a right to redress grievances, a fair and full interview, and legal assistance. It conflicts with basic international obligations that have been established in order to protect refugees including humane treatment.
IRA condemns the new Turkish Government refugee determination procedure as immoral and legally deficient and urges the Turkish Government to put an immediate halt on deportations. The Government should formally reaffirm its commitment to non-refoulement and incorporate necessary legal measures into Turkish law to ensure effective protection for non-European asylum seekers and refugees in Turkey. Examination of asylum applications should be dealt by a qualified authority independent of foreign policy and immigration concerns and knowledgeable in international refugee and human rights laws. International standards for fair determination procedures should be adopted and effectively implemented. If Turkey wants to establish a determination procedure in line with international standards it has to co-operate with the UNHCR. This should include unhindered access for asylum seekers to the UNHCR and respect for UNHCR's decisions on asylum applications. Deliberations to establish a system in line with international standards should be open to other inter-governmental and non-governmental organizations working with asylum seekers. Conditions of stay should comply with international standards for safety and humane treatment of asylum seekers and refugees.
While there is no doubt that the UNHCR Branch Office has been faced with an inherent lack of co-operation on the part of Turkish authorities, the organization's passivity to petition the cause of refugees remains unjustified. Neither the secretive process of discussions between the UNHCR and the Turkish Government before the establishment of the new system, nor the UNHCR's recent signature of approval on the procedure, impart the agency's will to hold the Government accountable for violating international refugee laws. In fact, what makes the new system all the more alarming is that such endorsement by the UNHCR avails the Turkish Government a defense to exonerate its violations. While the Branch Office's staff allegedly ascribe the passivity to diplomatic exigencies, the Office's inherently flawed standards of treatment, demonstrated in its own determination system, are more evidential.
While the UNHCR must operate with the consent of the host States, at the same time, its Statute commands support of States. If the UNHCR cannot acquire permission to fulfill its mandate in Turkey and protect people under internationally accepted procedures, then it should campaign the Government for the cause of asylum seekers. UNHCR is universally respected in the exercise of its function to protect people. Having the moral authority it has the capacity to go beyond quiet diplomacy and campaign its own member government.[27]
IRA urges the UNHCR to resign quiet diplomacy and denounce the new refugee status determination procedure. In order to authoritatively challenge the system and petition for basic safeguards for fairness in determinations, UNHCR has to first accept the full set of safeguards itself. IRA urges the UNHCR to adopt and implement immediately the recommendations made earlier in this document in order to bring the standards governing the practices of the Office in line with international standards.
FOOTNOTES:
1 See "TURKEY Selective protection: Discriminatory treatment of non-European refugees and asylum-seekers", Amnesty International, March 1994, AI INDEX: EUR 44/16/94.
2 In November 1993, Turkish authorities told Amnesty International that they, and not the UNHCR, were responsible for deciding which asylum seeker in Turkey has a "genuine" claim to refugee status. However, UNHCR officials indicated that, as far as they were concerned, no new system had yet been agreed. (see above note 1). A UNHCR fact-sheet on Turkey states: "In early 1994, eligibility process for Iranian asylum-seekers was hindered for several months due to changes in internal procedures involving the Ministry of Interior (MOI) and the Ministry of Foreign Affairs (MFA). There were also some confusions in the asylum process primarily concerning the parallel interviews conducted by the government agencies and UNHCR. By July 1994, however, UNHCR achieved better collaborative relations with the government authorities and the determination process has improved." (TURKEY: Fact Sheet, UNHCR Public Information Section). As reported by asylum seekers full interviews by the Branch office for all arrivals after 15 July 1994 were held until the end of 1994. In March 1995 several of these asylum seekers are reported to have been re-interviewed by the Turkish police.
3 The draft of the document is dated March 20, 1995. The final version has no date.
4 EXCOM Conclusion No. 6 (XXVIII) (1977).
5 Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979), "E. Statute of the office of the United Nations High Commissioner for Refugees".
6 One relevant example is when the Hong Kong government declared a new procedure to determine eligibility of Vietnamese asylum seekers for temporary asylum. After 15 years of giving Vietnamese asylum seekers automatic temporary refuge, on June 15, 1988 Hong Kong announced a refugee determination program; effective immediately, to determine the eligibility of new arrivals from Vietnam for refugee status. Although the procedure contained in form, some of the basic safeguards such as the right to formally object with the Governor in Council, UNHCR refused to participate in the process until September 20, 1988, when a Statement of Understanding was reached between the Hong Kong Government and the UNHCR. Pursuant to the Understanding the UNHCR obtained the role to monitor screening interviews, review files subject to negative determinations and arrange legal advice for asylum seekers wishing to challenge denials of refugee status. The immigration examiners involved in the screening procedures received formal UNHCR training, the interview questionnaire was revised to include all subject areas relevant to a determination of Vietnamese refugee eligibility in accordance with UNHCR criteria. As an ultimate safeguard, it was also agreed that the Office of the UNHCR exercise its mandate to declare a person a refugee in any case, whether before or after status determination procedures have been concluded. (see: In Search of Asylum: Vietnamese Boat People in Hong Kong, A Report Prepared By Janelle M. Diller, Attorney at Law for Indochina Resource Action Center). Later on, in reply to criticism from international human rights organizations more formal safeguards such as providing written reasons for negative decisions were included in the procedure.
7 Correspondence with Amnesty International, see above note 1.
8 EXCOM Conclusion No. 28 (XXXII) (1982), para. (e).
9 Such refugees are referred to as "mandate refugees", para. 16 of the Handbook. It, of course, follows that UNHCR's own system afford asylum seekers necessary procedural safeguards and fair application of criteria.
10 See Appendix.
11 These include the eligibility criteria and guidelines used by the Turkish Government to assess the claims. In addition, there are ambiguities regarding the mechanism that UNHCR "may present an opinion on a case" and the parameters based on which UNHCR may decide that resettlement in a third country "is the only solution" for a person admitted for temporary asylum by the Turkish authorities. Although a second layer of determination is implied, the mechanism and criteria used are not specified. The existence of a second layer of determination by the UNHCR can also be inferred from section IV of the booklet which clarifies:
"The way a refugee claim is evaluated by UNHCR may be different from the way the resettlement country may evaluate that claim. Therefore it can happen that although UNHCR finds that you fulfill the criteria for refugee status, the resettlement country may not accept you for resettlement." [Emphasis added] (Appendix)
12 EXCOM Conclusion No. 15 (XXX) (1979).
13 For the past number of years a considerable number of Iranian asylum seekers have come to Turkey via Iraq. Some have only passed through the territory because it was more convenient, some resided there to join the Iranian opposition forces based in that territory, and some sought for many years asylum from persecution while residing in camps or in places in northern parts of Iraq. From 1992 until the end of 1994, the UNHCR Branch Office in Turkey, which was at the time in charge of assessing asylum applications, denied assistance to many of such applications on the grounds that they should have sought protection from the UNHCR in Iraq. Denials continued despite the fact that for many asylum seekers' conditions in Iraq continued to be neither safe nor humane. Since the end of the Iran-Iraq war the activities of Iranian government's saboteurs whose numbers in Iraq were steadily increasing remained uninhibited. There have been numerous reported Iranian shelling of villages inhabited by Iranian Kurdish refugees. Abductions and assassinations continue to be reported. According to one recent Urgent Action from Amnesty International, two Iranian Kurds were reportedly abducted on 26 January 1995 at a checkpoint on their way to Rawanduz in Iraqi Kurdistan by members of the Kurdish Revolutionary Hizbollah (Hisbullahi Kurdi Shorishger). They were then handed over to the Iranian authorities and reportedly taken to Orumiyeh prison. The two men had fled to Iraqi Kurdistan in 1992 fearing arrest for their opposition activities. (Fear of Torture/ Fear of Execution, AI Index MDE 13/01/95 Distr:UA/SC 17 February 1995). To date, as indicated by UNHCR in its 1995 issue of assessment of global resettlement needs, there is neither an effective access to a local procedure for the determination of refugee status nor an adequate resettlement machinery provided by the UNHCR in Iraq. By the end of 1994, UNHCR policy was announced to have changed. The last remaining 20 to 30 of such cases--many of them arrived in Turkey in 1992--were accepted for resettlement.
14 EXCOM Conclusion No. 8 (XXVIII) (1977).
15 EXCOM Conclusion No. 30 (XXXIV) (1983).
16 For example, one relevant paragraph in the booklet states:
"It is of the utmost importance for you to give a true and complete report of your personal experiences and the danger you could face if you return to your country." [Emphasis in original]
The paragraph is misleading for undue emphasis on personal experience. The Handbook emphasizes that a "well-founded" fear of persecution "need not necessarily be based on the applicant's own personal experience." What happened to those close to him "and other members of the same racial or social group may well show that his fear that sooner or later he will also become a victim of persecution is well founded." Handbook, above note 6, Article (&43).
17 Handbook, above note 6, Article (&196).
18 EXCOM Conclusion No. 8 (XXVIII) (1977).
19 Handbook, above note 6, Article &190.
20 Ibid.
21 Ibid., Article (&198).
22 During the past years, frequent and consistent incidents of harassment and, on occasion, ill-treatment of Iranian asylum seekers by the Turkish police have been reported (see Amnesty International's report, above note 1; World Refugee Survey 1994, US Committee for Refugees).
23 Even when Turkish legal officers of the UNHCR interviewed Kurdish applicants, they were hesitant to speak freely.
24 The Executive Committee has specifically state that non-fulfillment of formal requirements "should not lead to a request for asylum being excluded from consideration." EXCOM Conclusion No. (XXX) (1979), para. 2 (i).
25 EXCOM Conclusion No. 8 (XXVIII) (1977).[26]
26 This restriction would actually make no difference because UNHCR's "legal counsel" does not, in any case, include legal assistance to asylum seekers to better present their claims.
27 Quiet diplomacy has not always been the agency's approach to governments: Although generally behind human rights organization in criticizing governments, the agency has had criticized government action. As recent as March 1995, a 292-page evaluation report issued by the Austrian office of the UNHCR strongly criticizes the Austrian asylum law and its implementation; claiming that it seeks to close the door for those fleeing persecution. The report confirms the claims of refugee counselors who have over the years complained that the asylum law grants few legal rights to asylum seekers, thus violating Austria's obligations under international and regional laws. The home minister Franz Loeschnak, however, has refuted the UNHCR criticism. The report, he said, has made false observations and merely confirms the earlier prejudices issued by the UNHCR and other refugee organizations. (InterPress Third World News Agency (IPS), [c] 1994). Earlier, on 10 January 1995, the representative of the UNHCR to the US was also quoted as saying that the agency would not be involved in the process of screening those Haitians at Guantanamo not wishing to return to Haiti because "it does not permit us to fulfill our mandate to protect people under internationally accepted procedures." (Amnesty International - EXTERNAL, AI Index: AMR 51/08/95)