Refugee Rights Under International Jurisdiction:
A Case Study of Afghan Refugees

 

Salma Malik*

Introduction:

ortunately for a majority of us very few have had to endure the distress of being displaced, uprooted or forcibly dislocated from our homeland. The very experience of making a painful journey into an uncertain future, which most of the time does not carry much promise or physical dividends, but a faint hope for a safer or a more secure life, is a reality many of us are blissfully unaware of. There are currently an approximate 12 million refugees around the world, as well as many millions of others who have been forcibly displaced as a result of conflict, systematic discrimination or other forms of persecution. Seeking protection outside the reach of persecution they very often fled. Refugees are mentioned in the earliest literature and the theme of seeking refuge or exile is found in religious writings as well.

The end of bipolar confrontation profoundly altered the global political scenario. The proxy wars ended, although several of them took on lives of their own without superpower patronage. External intervention in a conflict became less risky, since it no longer threatened major retaliation from a superpower sponsor. In many cases, the ideological motivation for conflict diminished, to be replaced often, by identity-based conflicts built around religion, ethnicity, nationality, race, clan, language or region. More often than not, these conflicts took place within national boundaries, rather than across them. In many cases, they were complicated by the involvement of people of similar ethnicity or religion in other countries, including refugees and a politically active Diaspora. Since these conflicts were no longer connected to an epic geopolitical struggle, many of the people who were driven by violence and persecution to flee their homes were marginalized by powerful states, which no longer found their vital national interests at stake.

An attempt is made through this paper to address the relatively ignored issue of refugees and refugee rights. What are the various conventions and international rulings pertaining to the rights and privileges that displaced persons and refugees are entitled to when seeking asylum or protection against persecution as well as physical displacement? What impact has the post-cold war strategic environment cast on the refugee issue and what dispensation can be observed post 9/11 in the light of international law? Finally an attempt would be made to analyze the Afghan refugees problem in Pakistan since the Soviet occupation of Afghanistan in the late 1970s. How to check the refugee influx and its fallout on the overall domestic socio-political environment of the host country Pakistan. And lastly an analysis of the overall situation is presented.

Refugee Rights Under International Law

Significant progress has been made since the end of the Second World War in defining the laws of war. The four Geneva Conventions of 1949, which form the basis of international humanitarian law, have been ratified by virtually every state across the globe, illustrating the importance attached to this body of law. In addition, 150 states have ratified either one or both of the two 1977 Additional Protocols to the Geneva Conventions. In spite of this, wars in which disciplined, well-provisioned armies fight each other and try to avoid damage to civilian people and property while permitting the sick and wounded to be treated still appear to be an exception rather than the rule.

Under the terms of the 1951 UN Refugee Convention, a refugee is a person who cannot avail himself or herself of the protection of his or her own state, and who has crossed an international boundary marking the limits of the sovereign territory of that state..[1] This definition, however, leads one to question the relevance of and revise the strategic lexicon for notions such as sovereignty and national frontiers, as the contemporary state appears to be losing much of its ability to control what crosses its borders as well as what goes on within it.

As mentioned above the definition of a refugee in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol says:  

A refugee is someone with a well-founded fear of persecution on the basis of his or her race, religion, nationality, membership in a particular social group or political opinion, who is outside of his or her country of nationality and unable or unwilling to return.  

Refugees are forced from their countries by war, civil conflict, political strife or gross human rights abuses. There were an estimated 14.9 million refugees in the world in 2001—people who had crossed an international border to seek safety—and at least 22 million Internally Displaced Persons (IDPs) who had been uprooted within their own countries.[2]  

What (is the Significance of Such Conventions)

Enshrined in Article 14 of the 1948 Universal Declaration of Human Rights is the right to seek and to enjoy in other countries’ asylum from persecution. This principle recognizes that victims of human rights abuse must be able to leave their country freely and to seek refuge elsewhere. Governments frequently see refugees as a threat or a burden, refusing to respect this core principle of human rights and refugee protection. Seeking asylum and refuge in safer places is an undeniable right every person is entitled to and no state can deny people these fundamental rights. 

Recognizing that the grant of asylum by a State to persons entitled to invoke Article 14 of the Universal Declaration of Human rights is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State.[3]  

This right to seek asylum is also a fundamental clause of the American Convention on Human Rights, which states in its article 22-7:

Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offences or related common crimes.  

Another very important and often violated article regarding the protection issue is the principle of non-refoulement. To begin with the Geneva Conventions related to the Protection of Civilian Populations in Times of War in its Article 45 states; In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs. Related to this is Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states: 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. The principle of non-refoulement is also an essential part of the International Customary Law, and makes it an obligation for all state parties to observe. Similarly any person cannot be held or forced to stay in any country without his wish and desire, known specifically as Right of Return. Similarly there are many rights that offer protection to refugee children. Such as the Article 10 of the Convention on the Rights of the Child states, that applications by a child or his/her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States’ parties in a positive, humane and expeditious manner.  

Where (does the refugee problem strike most)

The global refugee crisis affects every continent and almost every country. In 2001, 78 percent of all refugees came from 10 areas, namely: Afghanistan, Angola, Myanmar, Burundi, Congo-Kinshasa, Eritrea, Iraq, the Palestine territories, Somalia and Sudan. Of these Palestinians form the world's oldest and largest refugee population and along with Afghanistan make up more than one fourth of all refugees. Asia hosts 45 percent of all refugees, followed by Africa (30 percent), Europe (19 percent) and North America (5 percent). [4] 

When (i.e. since when has this issue been a cause of global concern)

Throughout history, people have fled their homes to escape persecution. But it was in the aftermath of World War II; the international community included the right to asylum in the 1948 Universal Declaration of Human Rights. In 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) was created to protect and assist refugees, and in 1951 the United Nations adopted the Convention Relating to the Status of Refugees, a legally binding treaty that, by February 2002, had been ratified by 140 countries. And not only that, since year 2001, June 20 has been unanimously declared as the International Refugee Day since for years, many countries and regions have been holding their own refugee days and even weeks.  

Why (is the need felt for such measures)

In the past 50 years, states have largely regressed in their commitment to protect refugees, with the wealthy industrialized states of Europe, North America and Australia–which first established the international refugee protection system–ironically, adopting particularly hostile and restrictive policies. Protection includes many aspects, mainly legal and physical protection. Although there exists so many international legislations supporting refugee rights, not only are these conventions and rulings violated blatantly, but physical protection of refugees is generally ignored. Governments have often subjected refugees to arbitrary arrest, detention, and denial of social and economic rights and closed borders. In the worst cases, the most fundamental principle of refugee protection, non-defilement, is violated, and refugees are forcibly returned to countries where they face persecution. Since September 11, many countries have even pushed through emergency anti-terrorism legislation that curtails the rights of refugees.[5] 

Changing Global Trends and Realities

The far-reaching political consequences of the end of the Cold War added to the impact of yet another transformation which took shape in the 20th century and which is sweeping forward into the 21st. This complex set of technological, institutional, organizational, cultural and social changes are grouped together under the rubric of globalization. Globalization process challenges the sanctity of the traditional nation or nation-state boundaries, and this has implications for refugee protection. The current structure of refugee protection was designed in and for a state-centric system. Globalization has also led to the increased marginalization of particular groups in industrialized states, a rise in anti-immigrant sentiment and growing hostility towards asylum seekers.[6]

Although goods and capital circulate and people move with greater ease than ever before across increasingly invisible borders, with or without the consent of state authorities, governments are still determined to control unwanted movement of people. The stringent measures that have been enforced often prevent people in legitimate need of protection from reaching a country where they may seek safety.  

Growing Complexity of Population Movements

People who flee their home countries out of a fear of persecution join a larger stream of migrants who leave in search of opportunities for work, education, and reunification with family members, or for other reasons. It has been estimated that at the end of the 20th century some 150 million people were living outside the country of their birth, amounting to about 2.5 per cent of the world’s population, or one out of every 40 persons.[7] Of these, about 15 million, or 10 per cent, are refugees. Many states have adopted explicit immigration laws and policies under which immigrants are admitted from three different streams: for family reunification; for employment, education or investment-related ends; and for humanitarian reasons.

While the categories are neatly distinguished on paper, in reality the boundaries between them are far from clear and the connections between them are many. For example, the members of a persecuted minority having made the wrenching decision to leave their home, opt to seek asylum in an affluent country where the chances of being able to support themselves are better. Does this make them economic migrants? A political dissident in an authoritarian country receives death threats and tries to migrate and join his family members. Is this a case of refugee resettlement or family reunification? An indigenous subsistence farmer, after the third time his community is attacked by right-wing paramilitaries, slips across a border to the north and finds work in the fields. Would this make him a refugee or an illegal immigrant?

Modern states, in exercising their fiercely defended sovereign right to determine who may or may not enter their territory, have to make these judgment calls every day. The only part of the immigration flow over which governments have surrendered some discretion is the humanitarian stream, in those parties to the 1951 UN Refugee Convention or its 1967 Protocol obligate themselves not to return refugees to a country where they are likely to face persecution. Pressure on the asylum systems of advanced industrialized countries has grown as some have narrowed or closed off other channels of legal immigration. European states, for example, have virtually ended official programmes of labour migration, despite a sharp decline in the native-born workforce. Attempts by non-refugees to use the asylum channel to gain a legal foothold in industrialized countries are a real—though often exaggerated—fact of life. Preoccupation with immigration control is a comparatively recent development in historical terms. Until roughly the time of the First World War, except for a few countries such as Japan, states placed no serious constraints on the movement of people across their borders. The early attempts that were made to control movements in Europe were aimed at preventing the departure, especially of people with acquired skills and able bodies.

Over the past decade, many states have experienced increased immigration pressure, not least because of technological advances, which have facilitated travel. Rising xenophobia in some places and states’ fears of losing control over entry into their territory, have led them to adopt increasingly stringent measures to prevent unauthorized migration. This has been the case not only in Europe and North America, but of almost any country that is relatively more prosperous compared to the states around, it, has found that one reward of success is increasing immigration pressure. Regional powerhouses such as Thailand, Malaysia, South Africa or Mexico have found themselves struggling to deal with unauthorized entry from their poorer, and often troubled neighbours.

No state has yet succeeded in developing deterrent strategies for undocumented immigrants that manage to differentiate fairly and effectively between people with well-founded fears of persecution and those with economic or other motivations for seeking entry. The same measures that make it difficult for an unauthorized migrant to gain access to the job markets of ‘a land of opportunity’ make it difficult for a refugee to gain access to the territory of a potential asylum country and to asylum procedures. Humanitarian assistance bodies such as the UNHCR has repeatedly expressed its concern about indiscriminate barriers to entry, since even an asylum system which functions well cannot protect people who are unable to reach the country concerned. The result is that some refugees resort to the dangerous and costly services of human smugglers and traffickers to circumvent the high barriers—some physical, some administrative—that separate them from safety. As the recognized categories of migrants’ overlap and blur, the needs of other groups of uprooted people are being acknowledged. Their relationship with established mechanisms and institutions of international protection and assistance are uncertain, even though many of them have the same humanitarian needs as refugees.

A 1996 conference addressing migration and displacement in the Commonwealth of Independent States, for example, drew international attention to no fewer than nine categories of uprooted people in the former Soviet Union. Refugees, people in refugee-like situations, internally displaced people, repatriates, formerly deported peoples, transit migrants, illegal migrants, ecological migrants and involuntarily relocating persons. 

Implications of 1951 UN Convention on Afghan Refugees Residing in Pakistan

Pakistan in spite of being a developing country has hosted millions of Afghan refugees since the 1970s. Although in the following paragraphs, an attempt has been made to highlight the impediments and shortfalls in Pakistan’s Afghan policy, one must keep in mind that the country itself faced a lot of difficulties during the Soviet occupation of neighboring Afghanistan. In spite of inherent problems of its own and the usual dilemma faced by a developing third world country, there was a time when Pakistan had to single-handedly support a burgeoning refugee population, with no donor aid or help coming from any quarter.

Since that time, Pakistan government has made in sporadic efforts to register refugees and to provide some legal protection. In the early 1980s, refugee families were issued passbooks.[8] The passbooks entitled refugees to receive assistance, and they were also used as identity documents. On a sporadic basis for a few years thereafter, the government of Pakistan issued passbooks to newly arriving refugees for assistance purposes only. The passbooks did not provide identification for the refugees, and as such, provided no legal protection.[9] Outside of these isolated cases, throughout the past  decade,   and  contrary   to  international  standards   including   ExCom Conclusion No. 91, the majority of Afghan refugees in Pakistan have not been registered, granted legal status, or issued identity documents. In addition, starting from late 1999 the government refused to consider newly arriving Afghans as prima facie refugees.[10]

In spite of the fact that it hosted the biggest bulk of world’s refugee population for the past three decades, Pakistan is neither a party to the Refugee Convention, nor its follow-up 1967 protocol. However, many a principle enshrined in the Refugee Convention are also well-established principles of customary international law, thus making it binding on Pakistan. Since 1958, Pakistan has been a member of UNHCR's Executive Committee (ExCom), and as such has participated in drafting and approving many of the ExCom Conclusions on Refugee Protection. Additional ExCom Conclusions that establish norms relevant to Afghan refugees include No. 22, which addresses the need to fully protect refugees who, arrive in a host country as a part of a large-scale influx; No. 85, which addresses the problem of mass influx of refugees and the right to seek and enjoy asylum; No. 81, which reiterates the importance of UNHCR's protection mandate and the primary responsibility of states in protecting refugees within their territories, besides No. 91, which emphasizes the importance of refugee registration. Furthermore, in August 2000 Pakistan also publicly acknowledged its international legal obligations to refugees when it agreed with UNHCR to screen Afghan refugees according to standards generally based on international refugee law.[11]

There are more than one hundred and fifty refugee camps inside Pakistan, the majority of which are located around Peshawar and north along the Afghanistan border in the NWFP; others are clustered around Quetta in Balochistan province. Refugees arriving during the US-led bombing campaign and earlier in 2001 mostly went to New Jalozai camp in NWFP, some thirty-five kilometers east of Peshawar. Jalozai has long been a destination for Afghan refugees. And the large number (approximately 80,000 refugees) that was already there made it difficult to accommodate the new arrivals. Other camps to which newly arrived refugees have gone include Shamshatoo and Nasirbagh, on the outskirts of Peshawar. They already housed tens of thousands of refugees. In Balochistan, refugees are located nearer to the border crossing point at Chaman in a small staging camp at Killi Faizo and in Roghani and Tor Tangi camps run by UNHCR, as well as at another smaller camp run by authorities of the United Arab Emirates. There are also several pockets of Afghan urban refugees living outside of these official camps in settlements in urban centers such as Peshawar, Quetta, Islamabad and Karachi.  

The government authorities responsible for promulgating laws and policies affecting refugees in these camps and in urban areas often employ contradictory policies, exacerbating the already hostile environment for refugees. For example, NWFP government had been openly hostile to the presence of the refugees, while the governor of Balochistan has been somewhat more tolerant and cooperative with the federal government's policies. Both of these local authorities are expected to coordinate their policies with the Ministry of States and Frontier Regions (SAFRON), and other federal government departments, though the coordination between the federal government and the provincial governments is often lacking. These layers of government are further complicated by the fact that the Federally Administered Tribal Areas (FATA) has a semi-autonomous legal status with the federal government. With separate tribal leaders and security personnel located in FATA, they are not legally obliged to coordinate their policies with one another, much less with the governor of NWFP or with Pakistan's federal government.

Pakistan first closed its borders to prevent Afghans from entering in November 2000, citing an inability to absorb the 30,000 refugees who had arrived in the previous two months and the thousands more expected to arrive. Since then the government has repeatedly stated that it closed its borders to fleeing Afghans because of security concerns. Besides, Pakistan's actions were in direct response to a request from the US to strengthen security in an effort to apprehend those responsible for the September 11 attacks in the US. Western governments, including the US, Australia, and European Union member states, also tightened immigration controls in a way that could further deny protection to Afghan refugees.[13] This was in light of the fears that members of the al-Qaeda organization or members of the Taliban armed forces might try to cross from Afghanistan into Pakistan. Though Pakistan's security concerns were entirely legitimate, by closing its borders to Afghan refugees, denying them entry, and returning some refugees to Afghanistan, the government of Pakistan was not only placing the refugees at a risk of being returned to a country where their lives were seriously endangered but also violating its obligation of non- refoulement.[14]

Furthermore, international refugee law includes provisions for screening and excluding persons who pose a threat to national security and who are not entitled to international refugee protection. International refugee standards also provide for the separation of armed individuals and those who have not genuinely and permanently renounced their military activities from civilian refugees, in order to maintain the civilian and humanitarian nature of refugee camps and asylum. These provisions must be applied in a fair, non-discriminatory manner with full procedural guarantees and international monitoring. The Pakistani authorities also refused to allow UNHCR to register new arrivals in new Jalozai camp in order to determine whether they were in need of refugee protection. Without registration, assistance programmes were also stymied, since the registration of refugees establishes accurate numbers and a system of documentation for the distribution of food and non-food items.

Pakistan's desire to cooperate with the international coalition against terrorism was also a factor influencing the border closure policy. In the lead-up to the U.S.-led air strikes in Afghanistan, the United States requested Pakistan to keep its borders closed. Despite the anticipated need for fleeing Afghans to seek safety in neighboring countries and the legal standards allowing for separation of armed individuals or those engaged in military activities from civilian refugees. The border closures undermined the right to seek asylum, enshrined in the Universal Declaration of Human Rights and customary international law. Also as a result of the policy, the Frontier Corps personnel and authorities in FATA were officially empowered to impose fines on people who were stopped while crossing. These fines are usually beyond the means of Afghans, who often flee with no money at all.

Pakistan's federal domestic laws make no specific provision for refugees. In fact, the laws actually undermine the concept of legal protection. The Foreigners Order of October 1951, promulgated pursuant to the Foreigners Act of 1946, gives the power to grant or refuse permission to enter Pakistan to civil authorities at Pakistan's border. Under this Order, foreigners not in possession of a passport or visa valid for Pakistan, or those who have not been exempted from the possession of a passport or visa, can be refused entry. There are no specific provisions providing for the granting of entry to asylum-seekers or refugees. The refusal of entry to asylum seekers by the Pakistani authorities undermines the right to seek asylum, which is enshrined in the Universal Declaration of Human Rights and customary international law as well as numerous conclusions of UNHCR's ExCom. The Foreigners Order also allows civil authorities to restrict the movements and place of residence of foreigners inside Pakistan, as long as these are made in writing. Other provisions allow for the arrest and detention of undocumented foreigners.

In August 2001, there were signs of improvement. The government of Pakistan was motivated to change its policy toward Afghan refugees because of its desire to move them out of the camps in which they were then living. In particular, the government focused on moving refugees from new Jalozai camp, because of land disputes and negative press accounts describing the squalor there; and to close Nasirbagh camp completely because of a real estate development project planned for its location. The government, therefore, held negotiations with UNHCR. The resulting agreement contained both the relocation component and a legal protection component with the latter aspect to be achieved through screening interviews. Under the agreement, thirty UNHCR and government teams were to interview an estimated 180,000 Afghans in the NWFP, focusing mostly on new Jalozai, Nasirbagh and Shamshatoo camps, to determine into which one of three categories the Afghans fell.

The first category encompassed all who would be afforded continued international refugee protection in Pakistan. Under the definitions selected for this first category, refugee protection was to be provided to:

Any person who is outside his/her country of origin and who is unwilling or unable to return there or to avail him/herself of its protection because of (i) a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (ii) a threat to life or security as a result of armed conflict and other forms of widespread violence, which seriously disturb public order.[15]

These criteria generally adhered to international standards, and in fact represented a potentially marked improvement for the legal protection of Afghan refugees in Pakistan. These criteria mirror the Refugee Convention's definition of a refugee, and also reflect elaboration of the refugee definition in regional instruments such as the Organization of African Unity's 1969 Refugee Convention. The second category included those who did not meet the criteria set out above, but who were considered to be particularly "vulnerable," such as women heads of household, the elderly, unaccompanied children, and others. This second category would be given temporary protection in Pakistan. The third category included all Afghans found not to be in need of refugee protection would be returned to Afghanistan.[16]

Under the relocation aspect of the programme, refugees in need of international protection (category one) and some of those found to be particularly vulnerable (category two) were to be relocated to new Shamshatoo camp, and to other camps located elsewhere in the NWFP. It was not finally decided what would happen with those vulnerable refugees who would be put further at risk if they were moved to a new camp. The third category would be deported from Pakistan to Afghanistan. This would achieve the government's goals of reducing overcrowding in new Jalozai, avoiding ongoing disputes with the landowner, and clearing Nasirbagh for the planned real estate development.

Although not perfect, the agreement provided for improvements in protection for Afghan refugees; however, these were soon lost. UNHCR and the government of Pakistan began screening in mid-August but stopped on August 28, when Pakistan forcibly returned about one hundred and fifty Afghan refugees who had not yet been assessed under the screening programme. These returns or refoulement were termed by the UNHCR as a "a clear breach of the August 2 Agreement." Reports indicated that the returned Afghans included refugees from Jalozai camp and some unaccompanied children. During the ensuing dispute between the government and UNHCR, screening was halted. It started again on September 3 and lasted for eight more days until the September 11 attacks on the United States. With the post-September 11 inflows of large number of Afghans to Pakistan, the full screening programme was not re-instated. Instead, the government of Pakistan maintained its interest in relocating the refugees -- a policy goal that re-surfaced in a new initiative in November 2001.  

Inside Afghanistan, there were fines imposed at checkpoints on people leaving Afghanistan. For those Afghans who could not afford to pay, incidents of extortion hampered their ability to reach greater safety in Pakistan. As a result of Pakistan's increasingly strict border closure policy, and the fines and extortion inside Afghanistan, it became even more dangerous and costly for Afghan refugees to enter Pakistan after September 11, 2001. At the Torkham crossing point, border pushbacks became more prevalent with increased numbers of refugees seeking to enter Pakistan after the October 7, 2001. These refugees frequently sought entry into Pakistan through any of the unofficial routes. Once allowed to enter Pakistan, the vulnerability decisions were many times influenced by bribery and extortion. In addition, a protection problem cropping up in the first weeks of the vulnerability screening was that women, children, and the elderly were allowed to enter, whereas sometimes men were not. This policy was due to the security concerns of the government of Pakistan, but it was applied to civilian as well as armed men. As a result, in the initial stages, some families accompanied by civilian men were separated at Chaman border crossing.

The lack of legal status for Afghan refugees in Pakistan left them without any protection from harassment, extortion, and imprisonment by the Pakistani police. Furthermore, in these camps, women-headed households suffered acutely during distributions, regardless of the process. A primary problem in all the refugee camps visited by Human Rights Watch was that there were no female police on site to ensure the security of female refugees, and from whom such female refugees could seek protection without putting themselves at risk of abuse or abridging cultural norms. This absence of female staff is contrary to Pakistan's obligations under ExCom Conclusion No. 64, which urges states to "increase the representation of appropriately trained female staff across all levels of organizations and entities which work in refugee programs and ensure direct access of refugee women to such staff." The need for female staff was also clear during the relocation programme (discussed infra, under "Refugee Relocation"), in which some refugee women described having less information and fewer alternatives than men when deciding whether or not to relocate.

The frequent incidents of violence during distribution made Afghan refugee women, already unaccustomed to appearing in public places, deeply afraid to go for distributions in order to collect food. Other refugees in urban settings, particularly in Peshawar, reported anecdotally about destitute women and girls resorting to prostitution.[17]

One of the few international human rights treaties that Pakistan is party to, the 1989 Convention on the Rights of the Child. Article 22 requires that refugee children should receive appropriate protection and humanitarian assistance in the enjoyment of the rights enumerated in the Convention. Articles 28 and 29 set forth the rights to education that Pakistan should ensure. A pertinent requirement contained in article 28 is that states’ parties shall "make primary education compulsory and available free to all." It was observed that many refugee children located in new Jalozai camp were not given access to primary schooling, and it was felt that Pakistan was also falling short on this international obligation. However, according to a recent study conducted by the UNICEF on the percentage of refugee children receiving primary level education was estimated to be around 50%, at least 10% higher than children enrolled for primary schooling through out Pakistan.[18]

The refugee population in various camps cited different reasons for not sending their children to school. One specific issue being that schooling options required paying fees. Families explained how they had to send their male children to work as opposed to school in order to supplement the family's income. Secondly, girl refugee children were usually kept at home with their mothers. In Peshawar, some refugee children living in the Tajarabat area worked as garbage pickers for a few rupees a day. Many refugee children in Peshawar were also working in brick kilns, carpet factories and shoe repair shops.[19]  

Implications of 9/11 & Refugee Influx on Pakistan

The collapse of Taliban regime close after the September 11 terrorist acts and the consequent potential for peace and stability led to a shifting priority for Pakistan and the leading refugee aid agency UNHCR in Pakistan to facilitate and make preparation for a mass return of Afghan refugees from the country. Beginning January last year, the relief efforts focused on relocating refugees from urban Peshawar and Quetta to the new sites near the Afghan border, and by mid-February, the infamous Jalozai camp was finally closed. Despite significant changes occurring in Afghanistan, as mentioned before, two fresh refugee waves occurred unexpectedly in the early part of 2002. To deal with this massive refugee inflow, initially the Pakistan government made an exception for vulnerable refugees as part of its post-September 11response. However, when a second wave of refugees approached Chaman in mid- February, the border was again sealed, leaving some 26,000 people stranded at the crossing point.

The establishment of the Transitional Islamic State of Afghanistan in June 2002 encouraged closer ties between Pakistan and Afghanistan. Through a series of informal tripartite consultations with UNHCR and the Afghan government, Pakistan came to acknowledge its neighbour’s limited capacity to cope with such a massive rate of repatriation and spoke openly of the need for a more gradual return. Both governments agreed to correlate the pace of voluntary repatriation more closely with Afghanistan’s reconstruction. Negotiations led to a tripartite agreement establishing a three-year timeframe for the voluntary and gradual return of Afghan refugees from Pakistan.[20]

Soon after UNHCR opened voluntary repatriation centres in March and April 2002, hundreds of thousands of refugees came forward to register for assisted return. To accommodate the growing number of requests for assistance, UNHCR opened centres in Islamabad, Karachi, Quetta and Peshawar. Interest in return reached its peak in May and June, with staff processing up to 10,000 persons per day in the weeks ahead of the Loya Jirga. The sheer number of Afghans repatriating – which surpassed one million in August 2002 – served to mitigate internal pressures in Pakistan to bring a swift end to the Afghan refugee situation. In stark contrast to early 2001, the Government adopted a less restrictive asylum policy despite the growing resentment of local communities towards refugees. Throughout the year, detentions and deportations did not occur on a large scale, and reported incidents were brought quickly under control following UNHCR intervention. The large number of Afghans repatriating had a softening effect on public opinion, and served to ease the pressures on the government to bring a swift end to the Afghan refugee situation.

As mentioned earlier, Pakistan is not a signatory to the 1951 Geneva Refugee Convention and has no asylum legislation to ensure the protection of refugees. Though the government cites no reason for its decision to sign the convention or its follow up protocols, it is more than evident that for an over-populated third world country with so many pressing problems of its own, coming under the obligation of such a treaty could further exacerbate its socio-economic instability. However, the government has nevertheless agreed to pursue a policy of voluntary return and to abstain from mass arrests and deportations. The influx of Afghan refugee dates back to the 1978 Saur Revolution in Afghanistan and with the Soviet invasion of the country and the latest phase of US-led bombing campaign on October 7 in Afghanistan has worsened the situation for the host country.

With the Soviet pullout from Afghanistan, a time came when Pakistan alone was sustaining and supporting a big refugee population with no external financial and material help. Though after the inception of the US-led bombing campaign on October 7, aid for Afghan refugees and those internally displaced increased, together with the level of international focus on the region, yet this was not enough to convince Pakistan to open its borders or to provide legal protection to greater numbers of refugees. The previous failure of the international community to provide sufficient support to Pakistan and neighboring Iran in meeting the needs of Afghan refugees may well have contributed to these two countries' increasingly hard line policies.[21] This situation was further affected by the attacks on foreigners and foreign interests, which resulted in the withdrawal of four key international implementing partners. Thus once again Pakistan was left entirely on its own to support the ever-increasing refugee population.

From the very beginning, the local population had problems accepting, adjusting and integrating with the arriving refugees. Where a fair number of refugees remained confined to their camps, and were issued passbooks to validate their refugee status, a good number spread into big cities, aspiring for Pakistani citizenship, which given the inept bureaucratic system was not too difficult to obtain. Once they acquired the citizenship, it was not too difficult for them to purchase land, real estate and set up their own business, which adversely affected local interests. The refugee population also started to seek menial jobs and the local domestic labor market was negatively impacted. The Afghan labourers would work for very minimal wages that were much below the fixed cost of an average labourer, and would work in the most adverse conditions.

With the Soviets still occupying Afghan territory, and a constant flow of Afghans entering Pakistan, the law and order situation was hit very badly. There was a dramatic rise in crime rate; coupled with this was the easy availability, and diffusion of small arms and light weapons. These weapons could be traced back to two main sources; the CIA arms pipeline, which leaked profusely, or the illicit weapons arms bazaars that exist in the Northwestern province since the past two centuries. This gave rise to a poor law and order situation; introducing a klashinkov culture that continues to date, rise in sectarian and ethnic violence, and free flow of weapons, drugs, narco-dollars as well as counterfeit currency. This situation gave rise to a deep-rooted resentment among the local population that had to share its land, property as well as vocational opportunities with what they perceived as aliens. The ever-increasing refugee population also gave rise to several social, integration as well as administrative problems that the government had difficulty in coping with.

As soon as the situation stabilized in Afghanistan, there was a mass return of refugees from Pakistan. By May 2002, 400,000 Afghan refugees had been repatriated, with voluntary repatriation centres processing up to 10,000 people per day. Despite elaborate verification measures, the sheer number of would-be returnees approaching the repatriation centres on any given day made it very difficult for UNHCR to crosscheck every application and avoid double registration. Afghan refugees eyeing a second helping of repatriation assistance have hit a blind spot with the arrival of state-of-the-art iris-recognition technology in Pakistan. The UN refugee agency UNHCR introduced an iris-recognition system among Afghan refugees in Peshawar as an additional measure to prevent the "recycling" of individuals seeking the multiple disbursement of its return assistance package.[22]

Conclusion

In spite of not being a signatory to the Refugee Convention owing to its domestic constraints, Pakistan not only opened its borders to Afghan refugees on humanitarian ground, but also single-handedly hosted millions of them for quarter of a century. Sustaining such a huge population has not been easy for a country which is severely debt ridden, troubled by socio-economic problems which are very often linked to the Afghan population. Where the international community has been very active in campaigning for refugee rights, they have been lacking on monetary and physical assistance. Although the Pakistan government has been criticized for not doing enough in the education, health and social service field, what needs to be seen is that in comparison the level of education and related facilities provided at the refugee camps are much better compared with that available to the local population, and for a country like Pakistan with limited resources at hand, it has been very difficult looking after not only its own population but also a refugee population which runs in millions. Many times the problem lies not with the provision of the facilities, but their fair and equitable distribution.

Protecting refugees is a shared responsibility, with States having the primary duty and the NGOs, international organizations, agencies and other political entities sharing this task. Although the 1951 convention and the 1967 protocol are global instruments setting out the core principals on which the international protection of refugees is built. Though their legal, political and ethical significance goes well beyond their specific terms, ultimately the full realization of the international protection regime hinges on the ability of the international community to find durable solutions for forced displacement situations, whether these are voluntary repatriation, resettlement in a third country, local integration or a combination thereof. The challenge is how to realize solutions of individuals, as well as for refugee groups, which are both lasting ad protection based. International responses to the problem of forced displacement have evolved steadily over the last 50 years, and they will continue to evolve.

The legal framework and institutional arrangements for protecting and assisting refugees and other displaced people have developed and improved with time. It is our collective responsibility now to learn from the lessons of the past in developing new mechanisms for responding effectively to the challenges of the future. Meeting the needs of the world’s displaced people—both refugees and the internally displaced—is much more complex than simply providing short-term security and assistance. It is about addressing the persecution, violence and conflict, which bring about displacement in the first place. It is about recognizing the human rights of all men, women and children to enjoy peace, security and dignity without having to flee their homes. This is the task ahead for governments, international organizations and the people of the world in the new millennium.