Thomas Uwer, WADI

Disputes over asylum policies always are a struggle over definitions.

The refugee regime established by the 51 Convention was concerned with providing asylum to persons in danger of persecution. The struggle over definitions was first and foremost fought out around the questions: "Who is to be considered a refugee?" and that means: "Who is to be provided with asylum?"

But when attention turned to seeking durable solutions to the plight of refugees, the question at the heart of the struggle over defintions changed from "who is to be protected?" to "where is the person to be protected?" The thinking which currently informs the international refugee regime holds that refugees are best located as close as is safely possible to the scene of their displacement. But precisely how such areas are to be defined remains unclear. The Dutch Foreign Ministry uses the term "internal resettlement alternative". Others call it "safe haven, "safe relocation" or "internal flight alternative".

When we discuss the questions of how such an "alternative" is to be defined, whether or not it is safe, and whether its stability is of a durable nature or is a transitory phenomenon which may collapse at any time, then we have to keep in mind that the question which we are addressing soleley is: "Where are such refugees to be protected?"

Despite, the fact that people who flee Iraq are in need of protection from a regime which the former UN Special Rapporteur on the Human Rights Situation in Iraq, Mr. van der Stoel, once described as having only "few comparisons in the world since the Second World War" is indisputable. This provides us with the first and primary criterion of definition: However one calls that area, it can only be considered as an "alternative" for refugees if it is safe and that is in the case of Iraq: safe from the persecution of Saddams regime.

The Foreign Ministry’s report claims to give a clear overview of Northern Iraq. It does so by providing detailed information on the human rights situation and the social and economic situation in that area. But however detailed such information may be, and whatever conclusions the report may reach on that basis, it would appear that someone forgot one simple and salient fact: the principal reason why people flee from that region, i.e. the definite fear that the Iraqi regime could regain control of the area.

It is particularly noteworthy that the report pays attention to developments as far back as the colonial period in the history of Iraq and during the rule of King Faisal in the 1920s. But the report makes a grave mistake of ommission. It fails to give a clear definition of the region which includes the legal and international conditions for Kurdish de facto self rule, the legal and actual status of the region in relation to Iraq and its neighbours, and the legal and actual mechanisms of protection which may, or may not, safeguard the region.

We should pay some attention on that:

In 1991 the Allies´ Operation Provide Comfort established a so called `safe haven´ in Northern Iraq. At that time about 1.5 million Iraqi Kurds were at or near the Iranian and Turkish border, fleeing Saddam Hussein´s wrath. The Ministry´s report takes "Operation Provide Comfort" as its starting point, but in doing so it fails to mention two fundamental facts: Firstly, that safe haven was limited to a small area constituting less than a third of the region as a whole. It consisted of the area arround the towns of Zakho, Dohuk and Aqura. But this is not indivated in the map provided by the inistry in annex one of the report. Secondly, "Operation Provide Comfort" ended on 7th June 1991, when all allied forces withdrew from Northern Iraq. Since then there has not been any international military force in place which could keep Baghdad´s forces at bay. The only `protection mechanism´ that remained was a `non-fly´ zone. But this covers only part of the region, and does not protect the region as a whole from ground attacks. Nearly half of the de facto Kurdish-ruled area falls outwith the `no-fly´ zone. It is noteworthy that this is likewise not indicated on the map at annex one of the report.

"Operation Provide Comfort" was based on UN Security Council Resolution 688. A resolution which affirmed "the sovereignty, territorial integrity, and political independence of Iraq". The significance of this affirmation should be obvious: Northern Iraq is not independent, it is a frictional separated part of Iraq. It is neither internationally recognised nor adequately protected.

The status of the so called safe haven in relation to the Iraqi regime can be summarised in three basic facts: Firstly, the withdrawal of central-Iraqi administrative structures in 1991 did not in any way represent an abandonment of legal sovereignty by the Iraqi government. Secondly, the territorial integrity and the national sovereignty of the Iraqi state continued to be recognised. Thus, for example, all international measures taken in Northern Iraq require legal sanction through a bilateral agreement with the Iraqi government not with Kurdish authorities -, on the basis of the Memorandum of Understanding. And, thirdly, as a consequnce of the foregoing, the regional Kurdish government and administration are not recognised.

Thus, "the ambivalent legal and political status of the area has prevented an adequate political settlement which provides durable international guarantees for the population´s safety. The problems (were) treated first and foremost in humanitarian terms, at the expense of a lasting political solution." (Netherlands Kurdistan Society/Iraqi Kurdistan 1991-1996 Political Crisis an Humanitarian Aid/Amsterdam 1996) The Foreign Ministry should also be reminded that huge parts of the humanitarian programme in Northern Iraq, run by international NGOs such as the Dutch Consortium, are regarded as illegal by the Iraqi government.

In assessing the realities of the putative safety provided by the safe haven, the following points must be borne in mind:

è no UN or other peacekeeping contingents are stationed in Northern Iraq or nearby in Turkey,

è no monitoring commission has ever been established to deal with threats and attack by Iraqi troops,

è no resolution or declaration of an international body has ever recognised the "self rule" of the area,

è no resolution or declaration of an international body has ever expressed the will to safeguard and protect the region,

è no resolution or declaration by any body has ever established a demarcation line between Baghdad ruled Iraq and the Kurdish territories.

This became all too evident in September 1996: In just a few hours the Kurdish Capitol Arbil was overrun by Iraqi troops and more than one-hundred wanted persons were executed in the course of the first day of incursion. US humanitarian assistance collapsed. Arround a thousand Kurds had to be evacuated in an ad-hoc operation while others fled to Iran. This was a traumatic experience for every Kurd: it became obvious that there were no international guarantees to protect the so-called safe haven from persecution by the Iraqi government.

The question of how the region is to be defined remains unresolved. Since 1991, the absence of any legal definition resulted in the absolute absence of legality in general. The Kurdish rulers for example never changed but adopted Iraqi law and justicial structures. Those laws and structures which have been cited by the International Commission of Jurists as "a clear example of how a prevailing system facilitates violations of human rights" (International Commission of Jurists/Iraq and the rule of law/Geneva 1994, page 9) How can they be described by the Ministry as independent?

At least, the unresolved status might explain the vagueness of the report’s definition of Northern Iraq as "that part of the Republic of Iraq which is controlled by Kurdish parties in the north of the country." So, if Northern Iraq is to be defined by the rule of the Kurdish parties, rather than by the borders of a fixed territory, then its boundaries may change at any time. Tomorrow it may dwindle away as was the case in 1991 to a thin line along external borders which a population in flight attempts to cross. Significantly, the prevailing circumstances and conditions in that region do not suffice to allow it to be defined as a fixed territory. So how can they suffice to allow it to be declared safe for refugees?

Obviously, the main threat to the Kurdish region comes from the Iraqi government. The Iraqi state continues to assert its legal sovereignty over the Kurdish region. The official Iraqi statements demonstrate that there cannot be any doubt that the Iraqi government is willing and able to once again extend its rule into Northern Iraq in the future.

A regime which has continuously carried out a policy of ethnic cleansing of Kurds in the city of Kirkuk in recent years. In December 1998 the Kurdish authorities in Northern Iraq stated: "some 200,000 ethnic Kurds have been evicted from areas under government control since 1991." (Report on Iraq, Human Rights Watch 1999 Report, published 2000; page 2.) The Kirkuk governate has been re-named Al-Ta’mim, which means "nationalization". (At this point the Ministry´s report fails to give a translation.) Amnesty International has described how detention, confiscation of property and confiscation of the ration cards of the Kurdish inhabitants of the Kirkuk governate have been part of the Arabization campaign. (Amnesty International Report: MDE 14/10/99, "Iraq: Victims of Systematic Repression", November 1999; page 13.)

This is also a regime which disposes of the military means to reconquer the region, and which is determined and authorised to do so. Large contingents of Republican Guards with tanks and heavy artillery have been deployed along the demarcation line throughout the past two years. The Kirkuk military airport is just some minutes away from the one million inhabitant city of Suleymaniyah south of the 36° parallel, that means outwith the `non-fly´ zone. Who will protect the Kurds if Saddam’s tanks roll north again? This is something which could happen at any time. And this would be ten times worse than the collapse of another so-called ‘safe haven’, which once existed in Bosnia. By that I mean Srebrenica, a name which speaks volumes about the bankruptcy of the concept of ‘safe havens’, and which exposes them as death-traps rather than as places of refuge.

The catastrophe of Srebrenica could be repeated in Northern Iraq. In the city of Arbil, for example, where 1.3 million people live just three kilometres away from government troops. If the Iraqi tanks were to begin rolling now, they would arrive in the centre of Arbil before we end our hearing. And the ‘no-fly zone’ will not prevent them from turning Arbil into a second Srebrenica.

It is not idle speculation to draw up such a horrific scenario. In recent years the Hussein regime has carried out a large-scale military campaign against Shi’ite civilians in the south of Iraq, leading to thousands of deaths and the devastation of the entire area. The British Foreign Office reports: "The regime has been engaged in a massive project to drain the marshes." Hundreds of square kilometres have been burnt in military actions. Out of a regional population of over half a million in the 1980s, fewer then 50,000 remain in the region today. In deliberate and indiscriminate military attacks on civilian targets numerous villages have been destroyed, an unknown number of unarmed civilians have been extrajudicially executed, and, as former UN Special Rapporteur Mr. van der Stoel stated, thousands of people have been deported to detention camps or have simply disappeared.

This was a campaign which took place over a period of years under the eyes of the Allies. It took place in an area which is designated as being under the protection of a no-fly zone. The consequences of a similar campaign in Northern Iraq are, unfortunately, too easy to imagine. What does the Foreign Ministry intend to do if two or three million Kurds again flee the country? It is unlikely in the extreme that the Kurds would place any trust in further international promises of protection inside the region.

I conclude by returning to the question of definitions.

Kurds too have always had a problem with definitions, as if there was never a definition of who was a Kurd, or a definition of which regions were to be considered Kurdish. It was the Iraqi regime which changed all that, when it began a sweeping military campaign against the Kurds. The campaign culminated in the destruction of more than 4,000 villages and towns, and the deaths of an estimated 120,000 to 180,000 Kurdish civilians.

Since then the question of whether or not to be a Kurd has not been a matter of personal choice. It is no longer a matter of choice because people are oppressed, persecuted, arrested, deported, shot and gassed by the Iraqi regime as Kurds.

This is symbolised by the city of Halabja. In the early hours of 16th March 1988 Iraqi helicopters dropped three bombs containing poison gas on Halabja, a Kurdish town inhabited by 50,000 civilians. More than 5,000 died in the space of a few hours. Around a further 10,000 are in the following years from their injuries and cancer. Halabja is also a symbol for the Kurdish society whos people have learned that they can only survive if they refuge.

I beg you not to forget Halabja. Today, that means not accepting a report which portrays as safe for refugees a region which has not even been defined, never mind provided with protection. Do not let the Iraqi regime yet again define by violence who will be a subject of repression and where that repression will be committed.