By: Alexis Eisa
“We have a legal and moral obligation to protect people fleeing bombs, bullets and tyrants, and throughout history those people have enriched our society.” – Juliet Stevenson
Due to the ongoing turmoil occurring in Afghanistan, over 550,000 Afghans have been forced to flee their homes since January 2021. Those fleeing from Afghanistan since 2021 join 3 million other displaced Afghans who fled in 2020. This is the definition of a humanitarian crisis.
According to the United Nations High Commissioner for Refugees (“UNHCR”), 250,000 Afghans have fled their home since May 2021. Eighty percent of those who have fled since May are women and children, causing alarming concern for the safety of women and children who remain in Afghanistan.
In these pressing times, polarizing opinions are formed about refugee resettlement – why do refugees have to flee, where they should flee, and what measures need to be put in place to help them? Although opinions may vary, there will always be one common, customary value of international law: refugees are human and have the human right to safety and protection.
Why are Afghans Forced to Flee?
Just since the beginning of 2021, civilian casualties have increased by almost 50%. These casualties are attributed to mainly non-suicide improvised explosive devices (“IEDs”) and targeted killings by the Taliban, government forces, and the Islamic State Khorasan Province (“ISKP”). According to the UN Assistance Mission in Afghanistan, women and girls’ casualties are at a record high this year.
Although the Taliban declared that their reign will be “peaceful,” many Afghans fear for their lives on an hourly basis. As exhibited by the above-discussed statistics, injury and death does not discriminate in Afghanistan. Moreover, Afghanistan is currently facing a severe drought during a pandemic. The country’s access to water and food is significantly limited. Those who remain, risk their lives and basic human rights under international treaties and customary international law. Those who flee, risk becoming stateless, homeless, or losing their basic human rights under international treaties and customary international law.
Customary international law, generally agreed upon principles of international law, defines a refugee as “[a]ny person who is outside their country or origin and unable or unwilling to return there or to avail themselves of its protection, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Customary international law also finds refugees to have the human right to safe resettlement and protection, given the displaced person is determined as a refugee. Each state is entitled to determining refugee status on its own, so the process varies from state to state. However, the process is typically lengthy. In the U.S., refugee resettlement generally takes two years. During the interim, many refugees struggle with a lack of civil and political rights as displaced persons.
All persons are entitled to safety and protection from infringement of their human rights. Refugees become refugees in search of these entitled human rights, and more must be done to ensure those rights are granted equally across the world.
Where are Afghans Fleeing?
Most Afghan refugees flee and resettle within Afghanistan or in Afghanistan’s neighboring countries, Iran and Pakistan. Today, the two countries together host more than 2.2 million refugees from Afghanistan. Iran provides approximately 780,000 Afghans with access to education and health. Pakistan, hosting around 1.4 million Afghan refugees, has historically provided refugee status documentation to ensure some legal protection for displaced persons. However, both the Iranian and Pakistani governments have openly opposed to being the safe harbors for Afghan refugees. The two governments go back and forth between welcoming fleeing Afghans and closing the borders.
Other refugees, on a much smaller scale, flee to the European Union for refuge. Europe, composed of some states with welcoming arms and some states hesitant due to the Syrian migration and refugee crisis of 2015, will likely receive the next largest influx of refugees.
Consequently, because an agreed upon approach has not been reached, the European Union’s home affairs ministers stated that the European Union’s approach is centered around supporting Afghanistan’s neighboring countries take in refugees.
Many Afghan refugees head to Turkey, in hopes of crossing over into Europe. Europe hopes to use this transition as a guard against a significant, possibly overwhelming, influx of refugees and asylum seekers. Turkey, however, has stated that “it has no duty, responsibility, or obligation to be Europe’s refugee warehouse.” In addition to refusing to be a transit point, Turkey is also refusing to accept Afghan refugees in general.
The United States is also a common place of refuge for displaced Afghans. The number is not certain; however, the U.S. has already accepted thousands of Afghan refugees.
Although protection from plausible persecution is a custom of international law , a generally agreed upon basic human right, the concerns have been far more centered around the politics of this refugee crisis rather than millions of Afghans whose basic human rights have been violated. Governments using other states as guards against fleeing persons or simply declare that they “will not open any European ‘humanitarian’ or migration crisis corridors for #Afghanistan,” are wholly counterintuitive to customary international human rights and international treaties.
What Measures are in Place?
To combat the lack of protection of displaced Afghans’ rights, the UNHCR issued a non-return advisory for Afghanistan. Denouncing the hesitancy to open borders to fleeing Afghans, the UNHCR stated, “[I]t is important to bear in mind that states have obligations, including under customary international law, to preserve cross-border access for civilians fleeing conflict and not to return forcibly refugees. The principle of non-refoulement includes non-rejection at the frontier.”
UNHCR’s non-return advisory emphasizes the human rights of displaced persons by calling on all states to open their borders to fleeing Afghans, seeking safety and security – basic human rights. Furthermore, UNHCR also calls on all states to comply with non-refoulement – asking states to suspend forcible returns of nationals, even for asylum seekers who have been formally rejected.
Until the “security, rule of law, and human rights situation in Afghanistan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection,” UNHCR calls on all states to adhere to its advisory, for the well-being of millions of innocent displaced people.
Most states are expected to comply with the UNHCR’s non-return advisory. However, for those who choose not to, there may be possible violations of international law.
What We Can Do –
“Injustice anywhere is a threat to justice everywhere.”
To aid in protecting the rights of Afghan refugees and in their resettlement, there are several fundraisers and donations to contribute to:
LaunchGood Save Afghanistan Fundraiser
PayPal Mothers of Afghanistan Fund
Law Journal for Social Justice 