Upcoming Violations of the Non-Refoulement Principle for Afghans in Europe?
Madalena Dória[1]
Abstract
This blog post addresses the fear of return for Afghans already present in the European territory and the need for protection for those fleeing the current regime change in Afghanistan. Initially, it explores the seize of Kabul and the establishment of the Taliban’s government and the threats posed to specific social, ethnic, and religious groups and political opponents of the Taliban, reviewing the recent reports on the general security situation in the country. Subsequently, it analyses the legal obligation of European States not to return and provide access to asylum for those fleeing Afghanistan, safeguarding the fundamental human rights principle of non-refoulement as enshrined in the Refugee Convention, the European Convention on Human Rights and the customary law. Lastly, it explores the legality of the measures introduced by some European countries and their declared intentions, arguing that they do not comply with their obligation to provide access to Afghans for protection.
Keywords: Afghanistan; non-refoulement; customary norm; UNHCR; European countries
1. Introduction – An Overview of the Recent Events in Afghanistan
On August 15th, 2021, the Taliban entered Kabul, the capital of Afghanistan, and established a de facto government for the first time since their previous era in power between 1996 and 2001.[2] The seize of power by the Taliban was far from surprising since it followed the withdrawal of the NATO allied forces based on the agreement signed between the US and the Taliban on February 29th, 2020, in Doha, Qatar.[3]
Even before these political developments, amidst a war that has been considered the world’s deadliest conflict,[4] around 18 million Afghans were in need of humanitarian assistance,[5] while at least 560,000 were reported as displaced in the first months of 2021.[6]
Upon the transition, the Taliban declared that they aim to form an inclusive state and respect the rights of their opponents,[7] allegedly differentiating themselves from their pre-2001 strict enforcement of the Islamic Law.[8] Still, human rights violations are widespread throughout the country, with an upsurge of violent attacks against civilians, mainly targeting collaborators of the previous administration and the foreign forces,[9] journalists, judges, human rights defenders,[10] and women in positions of power.[11] Women, in particular, have been subjected to restrictive measures, reportedly abandoning employment and being subjected to forced marriages with Taliban fighters. [12]
Moreover, the general insurgency has given space to other actors, such as the Islamic State of the Khorasan Province (ISKP or ISIL-K), to perform massive, deadly attacks against the civilian population,[13] such as the two bomb attacks of August 26th in Hamid Karzai International Airport costing the lives of among else 170 civilians.[14] ISKP has also targeted certain ethnic and religious minorities in the occupied provinces, such as Hazaras, Sufis, and Shias.[15]
The ongoing events occurring in Afghanistan are being observed by the international community with grave concern, with the UNHCR announcing that 500 000 Afghans may flee their homeland by the end of the year.[16] As the situation evolves unpredictably, UNHCR urges all states to allow entry into their territory for civilian Afghans and comply with the principle of non-refoulement, bearing in mind that states have a moral and legal responsibility to consent those escaping Afghanistan to seek a safe place.[17]
Apart from the civilians trying to escape the country for the first time, asylum-seekers who previously saw their claims denied should enjoy protection from refoulement. UNHCR appeals to states to refrain from returning Afghanistan nationals, pending improvements in the country’s situation that guarantee safe returns.[18]
2. The Non-refoulement Principle as a customary norm
The word refoulement originates from the French “refouler”, which means forcing a person to return to the place they had come from.[19]
Article 33(I) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention)[20] states that:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Refugee status is merely a declaration of the reality; “a person does not become a refugee because of recognition, but is recognised because he or she is a refugee,”[21] the principle of non-refoulement applies not only to recognised refugees but also to those who do not have their status formally declared.[22] The wording “in any manner whatsoever” explicitly states that any form of forcible removal, deportation or expulsion of a person in danger of persecution who is not granted admission and is not provided with access to a fair asylum procedure violates international law.
As enshrined in the Refugee Convention, the non-refoulement principle applied initially to any person who met the requirements of the refugee definition stated in Article 1(A) and who is not excluded from protection pursuant to the provisions of Article 33(II). However, since then, the principle has evolved and grown broader in scope. With its subsequent widespread codification in several multilateral legal instruments and the acquisition of customary status, the prohibition of non-refoulement does not still apply strictly to refugees.
The principle is widely accepted as a fundamental human rights norm of customary status, applicable to all States irrespective of whether they have ratified the conventions that safeguard it. The scope of the customary norm is significantly broader.
It guarantees that ‘no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm.’ [23] Consequently, the principle applies to migrants solely on account of the risk of harm, irrespective of their migration status.
3. The non-refoulement principle in ECHR
In the Council of Europe context, the principle is enshrined in Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman and degrading treatment, and is reiterated for the EU States in Article 19 (2) of the Charter of Fundamental Rights of the European Union.
The ECHR version of the principle, though it has not taken the form of a specific article, guarantees protection to cases of expulsion or extradition of foreigners, [24] whether being, e.g. fugitives[25] or asylum seekers,[26] at risk of torture or other cruel, inhuman, or degrading treatment in any country, including the country of origin or former residence, or the countries of transit.[27] The ECHR version of the principle is closer to the customary norm and is broader in scope than the Refugee Convention.
First, notwithstanding the different definitions for each treatment, the European Court of Human Rights (ECtHR) does not distinguish between the categories in the migration context, determining only whether the measure infringes Αrticle 3. This article protects every person at risk of ill-treatment irrespective of whether this risk stems from a personal characteristic or a situation of generalised violence, or a combination of both.[28] Article 3 grants broader protection than the Geneva Convention since victims of generalised violence do not qualify as persecuted in the latter’s context.[29]
In the case of Afghanistan, a right not to be expelled arises not only for those fleeing the country for fear of persecution for their race or ethnic origin (e.g., Hazara), their religion (e.g., Sufi or Shia communities), their political opinion (e.g., members of the former administration, human rights defenders) or for belonging to a particular social group (e.g., women journalists, schoolgirls). The UNHCR recommendations on the risk of return play a crucial role in the Court’s assessment of the third country situation.[30] UNHCR issued such an advisory of non-return on August 2021 for Afghanistan, calling for States “to suspend the forcible return of nationals and former habitual residents of Afghanistan, including those who have had their asylum claims rejected.”[31]
Furthermore, it is worth stating that Article 3 ECHR enshrines an absolute right in the sense that it cannot be restricted for any reason. Article 15(2) includes Article 3 to its list of non-derogable rights that must be upheld even “in time of war or other public emergency threatening the life of a nation” (Article 15(1) ECHR).[32] Contrary to other articles of the ECHR, Article 3 cannot be subjected to legal limitations under any circumstances, whether they be safety, public order or other grounds.[33]
Therefore, ECHR’s obligation for non-refoulement protects even those who may have committed serious crimes, including international crimes and terrorism, whom the Geneva Convention explicitly excludes from protection.[34] Even if these people whose conduct is considered to be contrary to the international community face a risk of subjection to treatment contrary to Article 3 of ECHR, the State cannot expel them.
Finally, UNHCR’s advisory of non-return states that due to the volatile and uncertain situation in Afghanistan, the States should stop the forcible returns of nationals and residents of the country, including those who had their asylum claims previously rejected. The new political developments may invoke the right of those rejected to file a sur-place asylum claim, namely, to ask for reconsideration of their refugee status if they belong to those groups targeted by the Taliban and other military insurgents in the country.[35]
4. European Countries’ First Response to ‘the Afghan Crisis’ – The false dilemma of protection vs security
The new Taliban regime poses a real danger to a significant part of the Afghans still residing in the country. Hence the number of Afghans departing and trying to find shelter in safe countries has increased, with most fleeing to Iran, Tajikistan, Uzbekistan and Pakistan depending on their ethnic origin.
Still, many are expected to arrive on the EU shores. UNHCR is concerned that an increase of international protection shall be safeguarded for people fleeing Afghanistan, “whether as refugees under the 1951 Convention or regional refugee instruments or as beneficiaries of other forms of international protection.”[36] Consequently, the measures taken by European countries become of grave concern. On the one hand, some countries fulfil their obligations to sustain cross-border access to civilians fleeing Afghanistan and assure their compliance with the principle of non-refoulement, including non-rejection at the border and provisionally haltered deportations of failed asylum-seekers. On the other, some countries are actively taking steps towards border closures, building fences and creating restrictions on asylum applications. Most remarkably, Austria, Belgium, Denmark, Germany, Greece and the Netherlands reiterate their position to deport Afghans to Afghanistan, declaring that halting returns “sends the wrong signal and is likely to motivate even more Afghan citizens to leave their home for the EU”.[37] This argument does not adhere -and possibly constitutes a violation- to the obligation of non-refoulement, leaving individuals without the possibility to seek international protection. Greece, for example, has completed a 40-kilometre wall on its border with Turkey and installed a surveillance system to prevent possible asylum seekers from trying to reach Europe, with the government flagrantly declaring that: “Our country will not be a gateway to Europe for illegal Afghan migrants”.[38] The refusal of admission of Afghans is a clear violation of the principle of non-refoulement by disrespecting the legitimate Afghans’ rights to seek international protection in the first place.
According to the Council of Europe Commissioner for Human Rights, Dunja Mikatovic, some states have invoked fears of a new migration crisis, exacerbating the problems these flows will create to European countries, disregarding that the actual Afghanistan situation constitutes a human rights crisis, targeting primarily people of Afghanistan.[39] Indeed, inevitably, Afghanistan’s neighbour countries will take most refugees; this, however, does not guarantee that their rights will be respected. For example, Iran, which hosts one of the largest refugee populations worldwide, set forth that it will provide temporary accommodation for Afghan refugees, notwithstanding that it will repatriate them once the circumstances allow it. Knowing the barriers posed to claiming asylum in Iran and the recurring refugee rights violations towards Afghans,[40] there is cause for alarm with possible violations to the principle of non-refoulement; it is questionable whether the EU states can refer to Iran as a safe-third country for Afghans for refraining from their international obligations.[41]
5. Conclusion
The position of the author of the present post is that the international community needs to form a united front to claim the end of the violence and the respect of human rights. As such, it is crucial to safeguard a safe passage out of Afghanistan for civilians facing a risk of persecution or death due to generalised violence, assuring open borders to all Afghans. All countries must not neglect their obligations under international law, including international human rights law and international humanitarian law.[42] The utmost respect of the principle of non-refoulement must, by all means, be shielded.
Considering that most Afghans will be hosted in the neighbouring countries, the slight fraction of displaced persons arriving in Europe have to be given access to a fair asylum procedure, in compliance with European states’ obligations under international law.[43]
[1] Madalena is a Master’s student in International and European Law at NOVA School of Law. She holds a Law Degree from the Faculty of Law of the University of Lisbon and a postgraduate degree in International Humanitarian Law and Human Rights in Conflict Situations. She is currently a member of the Migration and Armed Conflict Research Line of the NOVA Refugee Clinic.
[2] ICG – International Crisis Group, “With the Taliban Back in Kabul: Regional Powers Watch and Wait,” 26 August 2021, www.ecoi.net/en/document/2059728.html
[3] AAN – Afghanistan Analysts Network, “Preparing for a Post-Departure Afghanistan: Changing political dynamics in the wake of the US troop withdrawal announcement,” 10 June 2021, available at: https://www.afghanistan-analysts.org/en/reports/war-and-peace/preparing-for-a-post-departure-afghanistan-changing-political-dynamics-in-the-wake-of-the-us-troop-withdrawal-announcement/. Also, Parliamentarians for Global Action. 2021. “Large-scale human rights violations in Afghanistan: What can be done to prevent new atrocities?”. August 25, 2021. https://www.pgaction.org/news/afghan-panel.html
[4] ICG – International Crisis Group, “Afghanistan’s Growing Humanitarian Crisis,” 2 September 2021, available at: https://www.ecoi.net/en/document/2059728.html.
[5] Besheer, Margaret. 2021. UN appeals to nations not to return Afghan asylum-seekers. August 17, 2021. https://www.voanews.com/south-central-asia/un-appeals-nations-not-return-afghan-asylum-seekers
[6] ICG, supra note (iii).
[7] Al Jazeera, “Transcript of Taliban’s first news conference in Kabul,” 17 August 2021.
[8] BBC News, “Afghanistan: Who is in the Taliban leadership” 8 September 2021.
[9] CNN, “Afghan interpreter for US Army was beheaded by Taliban. Others fear they will be hunted down too,” 23 July 2021.
[10] BBC, “Halo Trust: Afghanistan mine clearance workers shot dead in ‘cold blood” 9 June 2021; UN News, “Afghanistan: Attack on UN mission draws global condemnation,” 30 July 2021.
[11] UNHCR. 2021. UNHCR issues a non-return advisory for Afghanistan. August 17, 2021. https://www.unhcr.org/news/briefing/2021/8/611b62584/unhcr-issues-non-return-advisory-afghanistan.html. Also, BBC News, “Who are the Taliban?”, 3 July 2021, available at: https://www.bbc.com/news/world-south-asia-11451718.
[12] Global Centre for Responsibility to Protect. 2021. Statemment on the situation in Afghanistan. August 17, 2021. https://www.globalr2p.org/publications/statement-on-the-situation-in-afghanistan/. Also, Danish Immigration Service, Country of Origin Information (COI) Brief Report September 2021, Afghanistan – Recent Developments in the Security Situation, Impact on Civilians and Targeted Individuals, citing, VOA News, “Taliban Impose New Restrictions on Women, Media in Afghanistan’s North,” 9 July 2021; Foreign Policy, “As Taliban Expand Control, Concerns About Forced Marriage and Sex Slavery Rise”, 23 July 2021; RFL/RE, “Return to the ‘Dark Days’: Taliban Reimposes Restrictive Laws on Women in Newly Captured Areas in Afghanistan,” 14 July 2021; Reuters, “Afghan women forced from banking jobs as Taliban take control,” 15 August 2021.
[13] UN Security Council, “The Situation in Afghanistan and its Implications for International Peace and Security,” A/75/926-S/2021/570, 15 June 2021, para.21.
[14] UN General Assembly, Report of the Secretary General, “The Situation in Afghanistan and its Implications for International Peace and Security” A/75/926-S/2021/570, 2 September 2021.
[15] Ibid.
[16] Reuters. 2021. “Afghanistan could be catalyst for common EU migration policy – commissioner” September 4, 2021. https://www.reuters.com/world/china/afghanistan-could-be-catalyst-common-eu-migration-policy-commissioner-2021-09-04/
[17] UNHCR. 2021. UNHCR issues a non-return advisory for Afghanistan. August 17, 2021. https://www.unhcr.org/news/briefing/2021/8/611b62584/unhcr-issues-non-return-advisory-afghanistan.html
[18] Belgrade Centre for Human Rights. 2021. Press Release: situation in Afghanistan and expected new refugee wave. August 18, 2021. http://www.bgcentar.org.rs/bgcentar/eng-lat/saopstenja/
[19] Dictionnaire de l’Académie Françoise, Cinquième edition, Tome premier A-K, Dupont, Paris, 1832, p.447
[20] Article 33, Convention Relating to the Status of Refugees. https://www.unhcr.org/3b66c2aa10
[21] UNHCR. 2007. Advisory opinion on the extraterritorial application of non-refoulement obligations under the 1951 convention relating to the status of refugees and its 1967 protocol. https://www.refworld.org/docid/45f17a1a4.html
[22] Ibid.
[23] It is enshrined, primarily in the Convention Against Torture and the Convention Against Enforced Disappearances. See UNCAT, Article 3: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to Torture”.
[24] See also, Gil, Ana Rita. 2021. Estudos sobre direito da imigração e do asilo. Petrony Editora, p. 238.
[25] ECtHR, Soering v. United Kingdom, Judgement of 7 July 1989, Appl. No. 14038/88, Series A, No.161, para. 91.
[26] E.g., ECtHR, Chahal v. United Kingdom, Judgement of 15 November 1996, Appl. No. 22414/93, Reports
of Judgments and Decisions 1996-V, para. 74.
[27] The prohibition of refoulement applies even to multilateral international agreements regulating the allocation of asylum claims between two or more States, as e.g., in the case of the Common European Asylum System (CEAS). [See accordingly, M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECtHR 2011 and Tarakhel v. Switzerland [GC], no. 29217/12, ECtHR 2014.
[28] ECtHR, Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, 28 June 2011. Also, Gil ibid, p. 238.
[29] Gil, ibid. p. 238.
[30] ECtHR, NA. v. the United Kingdom, no. 25904/07, 17 July 2008.
[31] UNHCR. 2021. UNHCR position on returns to Afghanistan. August 2021
[32] UNHCR Manual on Refugee Protection and the ECHR Part 2.1 – Fact Sheet on Article 3, p. 5.
[33] See, e.g., ECtHR, Ireland v. United Kingdom, Judgement of 18 January 1978, Series A, No. 25, paras. 162-163.
[34] The Refugee Convention, in its Article 33(2) , allows exceptionally for the prohibition of refoulement in case there are serious reasons for considering the refugee a danger to the country’s security or in case of a final conviction for a particularly serious crime. [Gil, ibid, 151]. Still the subsequent customary status of the norm, that arguably constitutes a peremptory norm of international law [See: Allain, Jean. 2002. The jus cogens nature of non-refoulement. Oxford University Press] Article 33(2) has lost its validity. See, also Cathryn Costello, Michelle Foster, “Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test,” Netherlands Yearbook of International Law 2015.
[35] See accordingly, UNHCR, Amicus curiae of the United Nations High Commissioner for Refugees (UNHCR) on the interpretation and application of ‘sur place’ claims within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, 14 February 2017, available at: https://www.refworld.org/docid/58ee206a4.html
[36] UNHCR. 2021. UNHCR position on returns to Afghanistan. August 2021
[37] Armstrong, Mark. 2021. Six EU countries want to keep forced return of Afghans despite Taliban offensive. August 10, 2021. https://www.euronews.com/2021/08/10/six-eu-countries-want-to-keep-forced-return-of-afghans-despite-taliban-offensive
[38] Taylor, Harry. 2021. Greece extends border wall to deter Afghans trying to reach Europe. August 21, 2021. https://www.theguardian.com/world/2021/aug/21/greece-extends-border-wall-deter-afghans-trying-reach-europe
[39] Commissioner for Human Rights. 2021. In their response to Afghans seeking safety, Council of Europe member states should not undermine human rights protections. August 30, 2021. https://www.coe.int/en/web/commissioner/-/in-their-response-to-afghans-seeking-safety-council-of-europe-member-states-should-not-undermine-human-rights-protections
[40] Human Rights Watch. Unwelcome guests. Iran’s violation of Afghan refugee and migrant rights. https://www.hrw.org/report/2013/11/20/unwelcome-guests/irans-violation-afghan-refugee-and-migrant-rights
[41] Mehra, Tanya; Coleman Julie. 2021. The fall of Afghanistan: a blow to counterterrorism and rule of law efforts. August 23, 2021. https://icct.nl/publication/the-fall-of-afghanistan-a-blow-to-counter-terrorism-and-rule-of-law-efforts/
[42] United Nations Human Rights Council. 2021. Human rights council expresses grave concern at all violations and abuses of human rights in Afghanistan and stresses the need for investigation into reports of such violations by all parties. August 24, 2021. https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=27407&LangID=E
[43] European Council on Refugees and Exiles. 2021. Joint statement: current priorities for an EU response to the situation in Afghanistan. August 25, 2021. https://ecre.org/joint-statement-current-priorities-for-an-eu-response-to-the-situation-in-afghanistan/
HOW TO CITE THIS BLOG POST:
Dória, Madalena. “Possible Violations of Non-Refoulement Principle for Afghans in Europe”. NOVA Refugee Clinic Blog, September 2021, available at: <https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=upcoming-violations-of-the-non-refoulement-principle-for-afghans-in-europe>