November 26, 1997
Mrs. Sadako Ogata
United Nations High Commissioner for Refugees
Case Postale 2500, CH-1211 Geneva 2 Depot Switzerland
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.

Since February 13, 1997, when the IM policy became effective, dozens of Kurdish Iranian refugees, some of whom have re-entered Turkey after being arbitrarily deported by the Turkish police before the IM policy was effective, have been refused assistance by the UNHCR Office and are being subjected to deportation by the Turkish authorities. Based on correspondence, it seems that the UNHCR in Turkey is defending its policy on the premise that:

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

We have found that all available evidence clearly contradicts these optimistic conclusions. Publicly available information, including media, NGO, and scholarly evidence as well as UNHCR's own reports, all point to the fact that the physical security of Kurdish Iranian refugees in Northern Iraq remains in critical jeopardy and that the prospects for any improvement in the situation are dim. Similarly, information from UNHCR's public documents on its resettlement activities in Iraq does not instill confidence that prospective resettlement of refugees from Northern Iraq will take place satisfactorily.

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.

In addition, by returning refugees back to seek resettlement assistance from UNHCR offices in Northern Iraq, the UNHCR-Turkey is also needlessly complicating and delaying the orderly processing of refugees in the international community. Based on information we obtained from the Istanbul office of the International Catholic Migration Commission, the agency which is responsible for processing refugees claims for resettlement in the US, UNHCR has been unable to fill the 1996 US resettlement quota from Turkey. It, therefore, makes no sense to force refugees to seek resettlement assistance from the Northern Iraq offices which are admittedly most strained and hampered while more streamlined procedures and an excess of resettlement slots exist in Turkey.

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."

In conclusion, we want to call your attention again to the real incentives behind the movement of Iranian Kurdish refugees from Northern Iraq to Turkey. They sacrifice their life-long savings and risk their lives and those of their children crossing mine-infested and high security borders to enter Turkey because those risks are outweighed by the risks they leave behind. If deported back to Northern Iraq, they will face even greater physical vulnerability, economic hardships and psychological strain and for the vast majority prospective resettlement will remain impossible. We are confident that when security conditions in Northern Iraq improve and UNHCR's actual resettlement caseload from Northern Iraq truly increases, refugees will stop moving to Turkey. Until those conditions exist, we urge you for humanitarian reasons to:

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.

We thank you for your attention to this matter, and welcome your response.
Sincerely,
signed
Nancy Hormachea, ESQ.
President-Iranian Refugees' Alliance, Inc.