The US-led response to Iraq’s invasion of Kuwait has had many immediate repercussions on the international humanitarian network set up at the dawn of an earlier “new order” — the close of World War II. It also has more than a few similarities to the protection scheme set up then to assist and protect refugees and displaced persons, and similarly reflects the values and concerns of its time.
While both the post-World War II and Persian Gulf war interventions did respond to the immediate needs of an abused population high in the consciousness of the Western public, both failed to recognize equally endangered but less visible or strategically useful populations. They failed to establish a more equitable and far-reaching system for responding to humanitarian needs based not on the popularity of the oppressed group or its usefulness in promoting particular ideological or geopolitical ends, but rather on its vulnerability and need for protection.
The international regime established for refugees has been created and maintained less for their protection than to preserve the prerogatives of powerful states. Many heralded the US aid to Iraqi Kurds at the end of the 1991 Gulf war as a precedent for future interventions in defense of human rights and humanitarian assistance. In retrospect, the US move appears as yet another exercise designed to enhance the prerogatives of state power by a stronger against a weaker state.
Eurocentric World Order
The 1951 Convention Relating to the Status of Refugees was drafted when Europe was attempting to cope with millions of people displaced by World War II and facing the prospect of coping with millions more fleeing a Soviet-dominated Eastern Europe. The Convention explicitly limited its legal force to refugees affected by events occurring prior to 1951 in Europe — excluding the rest of the world’s refugees from the protection mandate. Although the geographic and temporal limits were subsequently dropped in the 1967 Protocol, the implicit Western and Eurocentric state bias remained untouched. The definition of “refugee” incorporated in the Convention and Protocol was limited to persons fearing a narrow spectrum of human rights violations based on “race, religion, nationality, membership of a particular social group or political opinion.” Determination of refugee status — whether a person’s fear of persecution was indeed based on one of these five criteria, and whether it was genuine — was left exclusively to states. The notion of a well-founded fear of persecution based on deprivation of civil and political rights accorded easily with the Western view of Soviet-style repression of dissidents and minorities, accommodating the legitimate need of those people while at the same time scoring Cold War points by encouraging disaffected elements within the Eastern Bloc to “vote with their feet.” The five enumerated grounds of the Convention and Protocol encompass many serious human rights violations, and the term “persecution” appropriately invokes the torture, arbitrary arrest and the like that have befallen untold numbers of people in the second half of this century. What it excludes, however, remains a source of concern, as does the prerogative of interpretation and implementation left to the states.
The universality of the international human rights regime is based on two Covenants. The first, the International Covenant on Civil and Political Rights, addresses rights protected by the Refugee Convention of 1951. The second, the International Covenant on Economic, Social and Cultural Rights, addresses additional fundamental rights such as the right to food and shelter (Article 11), and the more elusive right of self-determination (Article 1). These do not fit the prototype of the Refugee Convention, despite the obvious relevance of such rights to many forced migrations during the past 40 years.
The incompleteness of the Convention mandate has been acutely felt in the Third World. In Africa and Latin America, it has been superceded by a more inclusive definition that more closely comports with the reality of forced migration in those parts of the world. Both the Organization of African Unity’s (OAU) Convention Regarding the Specific Aspects of Refugee Problems in Africa and the Cartagena Declaration of the Organization of American States (OAS) extend protection to persons compelled to flee their country due to foreign aggression (OAU and OAS), occupation (OAU), foreign domination (OAU), internal conflicts (OAS), massive violations of human rights (OAS) and other circumstances that have seriously disturbed public order (OAU and OAS). Within Africa and Latin America, the UN High Commissioner for Refugees (UNHCR) acts in accord with these regional instruments and extends protection to refugees of war and civil strife.
Double Standards
The development of different legal standards for refugees in the industrialized West and the Third World is most acutely apparent when Third World refugees seek asylum in the West. In most Western states, the Refugee Convention definition has been adopted in national legal codes. The narrow “persecution” standard of the Convention is insufficient ground for granting asylum when the asylum applicant’s life or freedom is endangered by one of the broader causes of flight recognized by the OAU or OAS.
The problem is not only definitional. The heart of the matter is state power to grant or to deny asylum. In drafting the 1951 Refugee Convention, Western governments rejected a right to asylum. [1] They were unwilling to make legally binding a right they had all recognized in principle in Article 14(1) of the non-binding Universal Declaration of Human Rights: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” This was no mere oversight. A UN conference, convened in 1977 with the idea of correcting the problem by drafting an internationally binding convention on the right to asylum, was an abject failure. [2]
The OAU Convention speaks specifically about the obligation of states to endeavor to “receive refugees and to secure the settlement of those refugees.” Western states have assumed no such obligation. Their only obligation under the terms of the Refugee Convention and Protocol is not to “expel or return (refouler) a refugee…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.” This principle of non-refoulement is interpreted by states, principally the US, to mean that an obligation of non-return only exists if the person is already in the country of refuge. By this restrictive interpretation, the obligation does not hold for persons interdicted on the high seas, such as Haitian boat people, nor to people turned away at the border they are seeking to cross, such as Iraqi Kurds on the Turkish border. [3]
The refugee crisis that arose on the heels of the Gulf war owes much of its tragic character to the failure of the 40-year old Refugee Convention to address the right of asylum or to curb state power from manipulating the refugee definition to suit other-than-humanitarian ends. The cause of the sudden flight of approximately 1.5 million Iraqi refugees in March and April 1991 can be traced to a combination of factors, including the Iraqi regime’s history of aggression, brutal repression of minority groups and political dissenters, and disregard for human life. Under the US-led Operation Provide Comfort, a protective shield was supposedly erected for a repressed and endangered minority in flight. In fact, true safety in the form of asylum was denied. The assistance that did arrive was as much to shore up US alliances with friendly governments as to assist the refugees.
The principle of a right to seek and enjoy asylum from persecution is recognized universally by the community of nations through the Universal Declaration of Human Rights. Turkey, a key US ally, has remained among the most recalcitrant European states regarding the applicability of the Refugee Convention and Protocol. While most other European states have dropped the Convention’s European-specific limitations, Turkey (along with Yugoslavia and Hungary) has steadfastly limited its definition of refugees to persons fleeing Europe. Turkey, for instance, has neither recognized nor protected the vast majority of the hundreds of thousands of Iranians who have fled to Turkey in the past decade. Refugees from Iraq are likewise barred from consideration as refugees, and a Turkish refugee policy that excludes Kurds accords with Turkey’s repression of its own Kurdish minority. Tens of thousands of Iraqi Kurds fled the Iraqi army in 1988 — this offensive included the Iraqi poison gas attack on the Kurdish town of Halabja — but Turkey has refused to characterize refugees as “refugees” or the places where they have been held — often behind barbed wire and armed guards — as “camps.” “We are not calling these groups refugees — yet,” said Hayri Kozakçıoğlu, a regional governor, to the Christian Science Monitor in September 1988. “The reason is just because the word ‘refugee’ has very different legal meanings and understandings throughout the world. These groups haven’t yet expressed their wishes about staying here. We understand they may go back to Iraq. So we call them ‘Iraqis who are staying here awhile.’ And we are not calling [the places where they stay] ‘camps.’ We are calling them ‘temporary residence places.’” [4]
If official circumlocutions seem bizarre, conditions in the three camps holding the more than 19,000 Iraqi Kurdish refugees still in Turkey from 1988 are appalling. For the three years prior to the Gulf war, the camps were surrounded by barbed wire and troops. International visitors were denied access, and movement in and out of the camps was strictly limited. Children were denied educational opportunities, and employment was either barred altogether or severely restricted. Residents of all three camps say that hundreds fell ill from alleged food poisonings in 1989 and 1990.
The smallest camp, Mus, was operated like a prison, according to observers. Residents were allowed out only for a couple of hours per day, and residence structures were reported to be unsafe and overcrowded. The larger camp at Diyarbakır was overcrowded, with intermittent electricity and unclean water. At the Kızıltepe camp at Mardin, residents were forced to remain in tents from the time of their arrival. Kurds claimed that children died from exposure, malnutrition and disease. In the summer, the dilapidated tents absorbed terrific heat and sanitation broke down. In 1990, international donors pledged $14 million to relocate these refugees into permanent shelters in Yozgat province, in central Anatolia, but the Turkish government canceled these plans without explanation.
There have been persistent reports since 1988 of Turkish authorities returning Kurdish refugees to Iraq against their will. Coercion has reportedly been more intense during times when Baghdad announced amnesties. Allegations against the Turkish government include delays and reductions in rations, veiled threats, beatings and stepped up “security” measures.
No New Day
Ankara decided not to repeat what they saw as their mistake in 1988, when, in the Turkish view, they received plenty of Western criticism for their treatment of the Kurdish refugees but very little support either in the form of offers to resettle them or to provide adequate financial support for them in Turkey. It came as no surprise, therefore, that when a mass exodus of Iraqi Kurds arrived on Turkey’s borders at the end of March 1991, they were left to fend for themselves, clinging to the sides of mountains.
A picture of misery and death briefly riveted the Western public’s attention. The response to that outpouring of concern was neither the use of moral suasion nor the more taxing pressures governments such as the US were in a position to exert to get Turkey to open its border and provide refuge. Turkey, the good ally, was essentially let off the hook with the creation of a “safe haven zone” inside Iraq. The needs of refugees were a considerably lower priority than the need to cement political alliances. [5]
Creating a safe haven inside Iraq was a convenient “single-edged sword” for the US — blunt on the Turkish side to protect its ally from any encroachment, yet razor-sharp on the Iraqi side. The US, joined by Britain and France, justified the creation of a safe haven zone in northern Iraq by citing UN Resolution 688, adopted by the Security Council on April 5, 1991. The resolution is important both for what it says and for what it does not say. It frames its condemnation of Saddam Hussein’s repression not in terms of the human rights violations committed against Iraqi citizens inside Iraq, but rather in terms of the “massive flow of refugees toward and across international frontiers” caused by the repression. The concern is not primarily about Baghdad’s threat to the Kurds of Iraq, but rather the fear of the Kurds themselves — that their flight to other countries will “threaten international peace and security in the region.”
Resolution 688, therefore, should hardly be read as ushering in a new day for human rights, sheltering citizens from government abuse committed under the umbrella of state sovereignty. The resolution pointedly reaffirms the “sovereignty, territorial integrity and political independence of Iraq and all the states in the area.”
Resolution 688 did insist that Iraq “allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq.” This is a genuine advance, in that it expresses a consensus that international humanitarian organizations should be allowed free access to assist within Iraq. In compliance with the resolution, Iraq concluded a Memorandum of Understanding with the UN secretary-general’s executive delegate, Prince Sadruddin Aga Khan, on April 18, 1991, that allowed the UN to provide humanitarian assistance whenever it believed necessary. [6]
But this was not enough to satisfy the Western powers. Nowhere in 688 was the US Army defined as an international humanitarian organization. Straining their interpretation of Resolution 688, Britain, France and the US created an occupied military zone in the name of international stability with the intent to destabilize the government of Iraq. This may have been a legitimate political goal, but it misrepresented the intervention under an essentially humanitarian facade.
Disparate Treatment
The self-serving character of the US-led intervention is apparent from the grossly disproportionate US response to the needs of Kurds in northern Iraq compared to the many more Kurds who fled at the same time to Iran. Total funds allocated and designated for Iran by mid-May 1991 were about half of those allocated for Turkey, although there were an estimated 1.3 million Kurdish refugees in Iran, about triple the estimated 330,000 in Turkey. Iran received $128.9 million in international assistance compared to $248 million spent on the Turkish/Iraqi border. [7] For every dollar spent for an Iraqi refugee in Iran, $7.60 was spent on an Iraqi refugee on the Turkish border. The US contribution was even more heavily weighted in favor of Turkey. Of the $207.6 million spent by the US government between the time the Iraqi refugee crisis erupted and mid-May, only 10 percent at most went to assist refugees in Iran.
It did not matter that the person was a refugee in need of assistance, or that the person was a Kurd, or a victim of Saddam Hussein’s wrath. What mattered was the direction of flight — toward US friend or foe. In effect, the Kurdish refugees in Iran were punished for the poor relations between Tehran and the West.
In August 1991, a year after the Iraqi invasion of Kuwait — the attack on national sovereignty that precipitated an unprecedented international military response — Turkey mounted a military incursion across its border with Iraq. Ankara claimed that it was attacking guerrillas of the Kurdistan Workers Party (PKK) who had fled into northeastern Iraq. Turkey announced at the end of the first week of August — shortly after the allied withdrawal from the security zone — that its F-4 and F-104 fighters had conducted a total of 92 air raids and that 2,000 Turkish commandos, supported by helicopter gun ships, had crossed into Iraq. According to UN officials, the attacks targeted two Iraqi Kurdish villages, killing 20 civilians and wounding 15 but inflicting no known PKK casualties. [8]
The Turks announced at the time their intent to create a three-mile buffer zone along the Iraqi side of the border between the two states. Although Ankara did not pursue this, the Turkish air force continued to violate Iraqi territory. On October 11, they bombed five Kurdish villages in northern Iraq that had been within the allied security zone, including Begova, which was being assisted by the International Rescue Committee, a US voluntary agency. Kurdish sources reported that three Iraqi Kurds died and 11 others — including civilians — were wounded. [9] The US, Britain and France made no effort to protect the Kurds from Turkish bombs and bullets. In late March 1992 there were further Turkish cross-border air raids. Far from being a breakthrough for human rights and humanitarian assistance to displaced persons, the allied intervention on behalf of the Kurds of Iraq instead affirmed the power politics and hypocrisy that have long characterized the actions of states with respect to refugees and other powerless victims of official terror.
Iraq’s egregious aggression and human rights violations created an opportunity for improving refugee policy, but this opportunity has been squandered. In the meantime, we must deal with the crises engendered by the actions of states, including the US, that compromise the rights of refugees, most especially the right to asylum and against forced return to conditions of political violence and persecution. Denial of asylum is a human rights violation. The US supported Turkey’s violation of the Kurds’ right to asylum. Just to make it absolutely clear that there is no “new order,” the US has adopted the same approach with the interdiction and forced return of boat refugees to Haiti. Who is left to intervene?
Endnotes
[1] Guy Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1983), p. 74.
[2] Ibid., p.111.
[3] Kay Hailbronner articulates this view: “Codified refugee law is plainly inapplicable to persons fleeing from generalized violence in their home countries. A customary norm of non-refoulement for humanitarian refugees, however merited on humanitarian grounds, is not now supported by the requirements of broad and consistent state practice and opinion juris…. Despite the efforts of some observers, international law should not be viewed as demanding an obligation of states to adhere to non-refoulement or provide temporary refuge for all humanitarian refugees.” See “Non-Refoulement and ‘Humanitarian’ Refugees: Customary International Law or Wishful Legal Thinking?” in D. Martin, ed., The New Asylum Seekers: Refugee Law in the 1980s (Amsterdam: Kluwer Academic Publishers, 1988), p. 144.
[4] Christian Science Monitor, September 20, 1988.
[5] “If the refugees had been permitted to cross the border — even by half a mile — to enter more hospitable Turkish valleys and facilities, some of the tragic loss of life could have been minimized during those desperate early days in April.” “Aftermath of War: The Persian Gulf Refugee Crisis,” Staff Report, Subcommittee on Immigration and Refugee Affairs, US Senate Committee on the Judiciary, May 20, 1991, pp. 36-37.
[6] See James Fine, “The Iraq Sanctions Catastrophe,” and Attalah Kuttab, “Dilemmas of Relief Work in Iraq,” in Middle East Report 174 (January-February 1992).
[7] The UN Disaster Relief Operation (UNDRO) situation report, May 17, 1991. The $248 million figure for the money spent in Turkey combines the UNDRO accounting of $57 million with the $140.1 million in US Department of Defense contributions and $31.6 million in Food for Peace assistance, both of which were distributed as part of Operation Provide Comfort.
[8] Washington Post, August 8, 1991.
[9] Washington Post, October 12, 1991.
