Discriminatory Asylum Policies and Practices in Turkey (Presentation at OSCE)

by Ezat Mossallanejad (on behalf of ICCR)

(from Iranian Refugees At Risk Summer/Fall 97)

For the last seven years, I have been working with Inter-Church Committee for Refugees (ICCR), mainly as the representative of the Jesuit Refugee Service-Canada. Along with Tom Clark (ICCR Coordinator) and Anne Woolger (another member of ICCR and a staunch supporter of Kurdish and Iranian refugees in Turkey), I shared the plight of non-European refugees with ICCR members. ICCR started its advocacy for this group of refugees more than three years ago. We have been enjoying ongoing cooperation from the Iranian Refugees' Alliance throughout these years.

The Inter-Church Committee for Refugees (ICCR) is a coalition of ten national Canadian church bodies whose mandate includes making joint submissions on refugee protection situations.

In 1994, Anne Woolger travelled to Turkey and investigated the lack of due process for non-European refugees in this country. A year later, Ann and Tom Clark travelled to Geneva on behalf of the ICCR. They raised the issue at the annual meeting of the Executive Committee of the United Nations High Commissioner for Refugees. They also presented first hand information on Turkey's unlawful deportations as well as several refugee claims which had been unfairly rejected by the UNHCR in Turkey. This information was obtained with the help of Iranian Refugees' Alliance in New York.

In early 1996, as a proactive approach to the upcoming Review Meeting of the Organization for Security and Cooperation in Europe (OSCE), ICCR sent two written submissions to OSCE. One was with respect to the lack of due process for some non-citizens in deportation by Canada. The other one (the full text is given below) was about the discriminatory policies and practices against asylum seekers in Turkey. On the basis of these submissions, both I and Tom Clark were invited to Vienna to attend the OSCE meeting and add our verbal concerns to the written submissions in the "Human Dimension" workshop. We were also able to attend interesting sessions on the "Economic Dimension."

I started my journey in November 4, 1996. I quickly got oriented, learned the routine and met other countries' NGOs before speaking Friday November 8, 1996 at the session on "Tolerance and Non-Discrimination'' which included treatment of foreigners. Tom joined me on November 8th to speak Wednesday 13th on "Rule or Law" which included right to a fair trial.

The Organization for Security and Cooperation in Europe, OSCE, is the present form of a process of consultation and negotiation that began with a Final Act signed in Helsinki in 1975 by governments of Europe and North America. It is the process which ended the Cold War. The process is important for its combination of human rights (referred to as the "human dimension") and security concerns, and its focus on the political accountability of its 55 members. Yet the level of human rights agreement to be complied with is quite narrowly focused. For example, States can be held accountable for large visa fees rather than "gross and systematic human rights violations".

There is a permanent council of representatives which meets weekly in Vienna. There is an Office of Democratic Institutions and Human Rights, ODIHR, in Warsaw. Every two years there is a "Review Meeting" at which progress on the last undertakings is measured and new undertakings are contemplated. An NGO like ICCR can present their assessment of the OSCE process and can make recommendations to the body of national delegations for their further development of the OSCE principles, standards and mechanisms.

The format for a Human Dimension Working Group session begins with government statements. These can either report actions taken or complaints about incidents in another country. In general, the US spoke (seemingly for North America) and Ireland spoke for the European Union in a rather grand principled way. Other governments tended to report actions, although Switzerland took a stand to push ratifying the Convention against Torture. Some Nordics gave an excellent statement on the meaning of the Rule of Law which is helpful for NGO purposes. Governments could use a right of reply if they had been referred to by another government or by an NGO. Then international organizations spoke, routinely the Council of Europe. (Under the Economic Dimension Working Group, the World Bank UNDP, OECD also spoke.)

NGOs had 5 to 7 minutes to speak. This was not, of course, adequate to cover ICCR concerns on the plight of non-European asylum-seekers in Turkey. I spent hours to summarize ICCR's submission without sacrificing the content. I practiced many times in my Hotel in downtown Vienna. In the night of November 7, 1996, I received a fax from my colleague Anne Woolger about a border event in Turkey. She had in turn received information from a Dutch colleague involved with an NGO working in Sulaimaniya, Iraq, that on October 26, 1996, 28 Iraqi Kurds were massacred by Turkish guards as they tried to cross the Iranian Turkish border unofficially. They were first bombed, then some were shot from a distance and at least 3 were knifed. I included this information in my report and added that these tragedies were happening regularly. At the meeting, I spoke for 8 minutes and covered almost everything. Fortunately, the Chair did not interrupt me. I started with urging OSCE members to ban geographical limitations on the application of the Refugee Convention and Protocol imposed nowadays by two countries in Europe - Turkey and Hungry. I ended my statement with the same request.

The Chair of Turkish delegation refused to budge. While admitting about the existence of geographical limitation on the application of the Geneva Convention, he emphasized that this limitation will continue to exist. He made no comment whatsoever on the redundancy of the exit visas, but assured members about flexibility on 5-day time limitation on filing refugee claims. He then made reference to the lack of burden sharing for large numbers of refugees and mentioned about the reluctance of European countries to respond to emergency situations.

Both ICCR's sediments were well received by NGOs and UN bodies. In my opinion, ICCR laid the foundation for further advocacy.

Inter-Church Committee for Refugees
Comite Inter-Englis pour les Refugies
129 St. Clair Ave. W. Toronto, Canada
BRIEF TO THE ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE ASYLUM POLICY AND PRACTICES IN TURKEY AND ITS IMPLICATIONS
September 27, 1996

Summary

Turkey reveals in a particular and dramatic way general problems which states have in granting rights to refugees. The "geographic limitation" limiting the application of the 1951 Convention to European refugees is in evident violation of the UN Charter and OSCE principles. OSCE Member States should agree to outlaw this option. OSCE members should also agree to hold workshops with ODIHR and UNHCR to develop new mechanisms to better ensure refugee right consistently across the OSCE Member States should urge Turkey to improve procedures for non-European refugees. The Inter-Church Committee for Refugees (ICCR) gather representatives of ten national church bodies in Canada. Its mandate includes monitoring world's refugee situations and Canadian responses. Its work reflects a commitment to justice, peace and community and upholds a traditional respect for the dignity and worth of the foreigner. Member churches have been directly involved in resettlement of some refugees from Turkey to Canada to protect them, and speak from this experience.

Introduction

At the time of preparation of this brief several thousand Kurdish, Turkoman and Iraqi asylum seekers are at the Turkish-Iraqi border and are being denied entry into Turkey by government authorities.

For the past twenty years, Turkey has been the first country of asylum to Iraqi, Iranian and Syrian asylum seekers. Kurdish minorities from these countries are the largest group of asylum seekers in Turkey. These asylum seekers have usually used Turkey as a temporary refuge until they secure resettlement in a safe third country. Despite serious economic difficulties, the majority of Turkish people have proved to be quite receptive and hospitable to these refugees. However in recent years the asylum policy of the Turkish government has become more restrictive and discriminatory, resulting in an absence of protection for many endangered individuals.

This brief underlines the fundamental concern of the Inter-Church-Committee for Refugees that the right to non-discrimination and the right to asylum are threatened in Turkey - a member of the Council of Europe. To protect the lives of thousands of refugees, immediate and definitive action must be taken by agencies such as the OSCE to ensure that all members apply at least minimum standards of humanitarian justice for asylum seekers, and that members states offer asylum without discrimination on the basis of national origin.

The remainder of this paper reveals Turkish policies and practices with regards to its treatment of non-European refugee claimants where there are clear violations of international human rights treaties and obligations.

Geographical Restrictions

At the time of its ratification of the 1951 UN Convention on Refugees and 1967 Protocol, Turkey placed a geographical limitation on it obligation to asylum seekers, limiting the recognition of refugees to European refugees only. This position clearly violates Articles 1.3 and 55 of the UN Charter and the 1975 Helsinki Accords which prohibit discrimination on the basis of the race. As a result of Turkish policy refugee claimants from such countries as Iraq and Iran are not even eligible to request permanent asylum in Turkey solely on account of their national and racial origin. The current international legal context would prohibit discrimination on "any grounds", as reflected in the Covenant on Civil and Political Rights and the 1986 Vienna Document and the 1989 Copenhagen Document at sections 5.7 and 3.5.

The geographical limitation itself raises profound questions. It is, of course, offensive that States can violate fundamental rights to non-discrimination. It is worse that this practice is sanctioned by an agency of the UN itself. States Members of the UN are permitted by the UNHCR, a UN agency to enter a treaty (the 1967 Protocol) in a manner which is at variance with the Charter of the UN, the 1975 Helsinki Accords, and the 1989 Copenhagen Document.

In November 1994, the Turkish government established a new series of regulations creating a system which judged whether non-European refugee claimants should even be regarded as asylum seekers and be granted the chance to make their claims. This system further complicates the plight of non-European refugee claimants in Turkey who until July 1994, sought assistance from the UNHCR which had been the sole authority, recognized by the government of Turkey, in deciding refugee eligibility of non-Europeans.

The following points outline some of the serious shortcomings of these new regulations for "non-European" asylum seekers in Turkey.

Time limitation

Regulations of November 30, 1994 have made it extremely difficult for non-European refugees fleeing persecution to get adequate protection in Turkey. Asylum seekers are required to file their claims within 5 days of entering Turkey. Failing to do so could lead ultimately to deportation regardless of the merits of one's claim. This is a short deadline considering the traumatic conditions of asylum seekers who escape persecution, tyranny, war, and civil conflicts in countries such as Iraq and Iran. Most of them are totally unaware of the Turkish government's asylum regulations and the time limit denies them the opportunity to make meaningful contacts with the local population and learn about their host country's asylum policies.

Living under Threat in Border Towns

Refugee claimants who enter Turkey with no or improper travel documents are required to report to police almost immediately. They are sent back to the nearest border entry point to file their claims with the local police. This forces many of them to remain near the border of the country from which they fled in fear of persecution. Such a practice leaves asylum seekers vulnerable to threats of forced repatriation and extradition. There have been reports of Turkish border authorities frequently resorting to arbitrary and atrocious methods of intimidation of refugees and who have at times extradited them to their colleagues in bordering countries. Another serious problem with the border point of entry application procedure is the presence of army personnel and militia from rival groups in the southeast border areas which puts the security of asylum seekers more at stake. There have also been reports of assassinations and kidnapping of asylum seekers in Turkey by Iranian authorities. These incidents are not consistent with 1991 Moscow Document sections 23.1 on liberty, and 28 on states of emergency. The incidents are not consistent with 1989 Copenhagen Document sections 16.1.

Lack of appeal

The current asylum determination system in Turkey is unjust and falls well short of international human right standards. There is no independent body to judge refugee claims in a manner which is free from foreign policy influences and public hostility. Turkey's domestic law does not provide an asylum seeker with the right to an appeal a negative decision. Asylum seekers are also unable to rely on the right to an "effective remedy". The right stems from the international Covenant of Civil and Political Rights, article 13, as described in General Comment 15 of the UN Human Rights Committee. This practice is not consistent with 1989 Copenhagen Document section 5.7 where human rights and fundamental freedom are to be guaranteed by law.

Refoulement

Turkey's expulsion practices are another area of grave concern. Reports have been received about non-European asylum seekers who were rounded up by Turkish police and transported to the borders of Iran and Iraq for the purpose of deporting them back to their countries of origin. This is "refoulement". It is inconsistent with the 1989 Copenhagen Document sections 5.7, 5.9, 16.1.

This practice is apparently based on Turkey's explicit security agreement with Iran and Iraq to return members of each other's opposition groups who seek refuge in their respective countries. Clearly, effective protection for many asylum seekers is greatly jeopardized. In addition, increasing reports of Turkish authorities rounding up and deporting refugees who have been granted both protection by the UNHCR office and asylum in a resettlement country is very alarming. It is our strong conviction that bilateral treaties cannot be used to violate basic human rights, including the rights of refugees whose lives will be in danger if they are returned to their countries of origin. Article 33 of the Geneva Convention relating to the Status of Refugees has obligated contracting states not to send refugees "in any manner whatsoever" to the frontiers of States where life or freedom would be threatened (principle of non-refoulement). The policy of expelling asylum seekers should be stopped immediately. This situation runs counter to the Vienna Document 1986 which promises fundamental rights to all persons on the State territory.

Exit Visas

The new regulations have required all refugees leaving Turkey for resettlement to have Exit Visas. This provision has been applied in an unpredictable manner which has put refugees at risk of refoulement. There have been many cases of refugees recognized by UNHCR and western embassies and accepted for resettlement in other countries, who were unable to leave Turkey due to erratic imposition of this rule. While a few refugees have obtained exit visas by bribing authorities, others have been forcefully repatriated to face danger in their countries of origin. We believe that this regulation should be revoked immediately. This situation runs counter to the 1986 Vienna Document section 12 on humanitarian travel and section 17 on restriction on travel for security reasons. The practice is also inconsistent with 1991 Moscow Document section 33 and 1989 Copenhagen Document sections 5.7 and 5.9.

Iranian sit-in

With regard to Iran we express our deep concern about the plight of approximately 150 Iranian asylum seekers who have been staging a sit-in near the UNHCR branch office in Ankara in protest of their rejection as refugees. We recognize that not all of these asylum seekers fit the Convention definition of refugee. But many of them may not have originally had a fair hearing. Since the appeal procedures are flawed the cases have continued to be classified as "unfounded" when some have strong evidence of potential persecution. We are concerned that even those who originally may not have had a valid refugee claim now have a valid fear of danger if returned to their native Iran on account of their exposure to international media.

Recommendation

We urge the members of the OSCE to:
1-Make a resolution to ban geographical restrictions on the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.
2- Agree to hold workshops with ODIHR and UNHCR to develop new mechanisms to better ensure refugee rights consistently across the OSCE.
3- Appeal to the government of Turkey to:

    -revoke or extend to a reasonable time the 5-day limit for asylum seekers to make a refugee claim and to permit cases to be filed in the interior of the country
    -review with ODIHR staff the policies and practices of Turkish officials and of UNHCR personnel to ensure that asylum seekers are granted fair interviews and meaningful appeals
    -revoke or simplify and streamline exit visa requirements
    -halt the deportation of non-European asylum seekers
    -consider humanitarian leave for Iranian sit-in participants and others who have become refugees "sur place" while in Turkey, and engage with international governments to facilitate their resettlements
    -open its border to refugees from Northern Iraq who are currently seeking asylum at the Turkish-Iraqi border, obtaining agreements for resettlement.