Islamabad, 30 November 2023 (TDI): As the deadline for Afghan refugees to leave Pakistan approached on November 1, the questions by human rights organizations and law personnel on the legitimacy of deportation of the refugees increased.
With provided an option to the undocumented Afghan refugees to either leave Pakistan voluntarily or face forced deportation, nearly 100,000 Afghan immigrants voluntarily left for Afghanistan through the Torkham border crossing in Khyber Pakhtunkhwa and Chaman crossing in Balochistan in October.
As per the government of Pakistan, more than four million Afghan foreigners live in Pakistan, among which nearly 1.7 million Afghans are undocumented.
The reason behind the crackdown of the Afghan refugees as suggested by the Pakistani government was the dwindling security conditions in Pakistan.
The Pakistani government connected the rising armed attacks in Khyber Pakhtunkhwa and Balochistan, bordering Afghanistan, with Afghanistan-based groups and nationals.
In the words of Interim Interior Minister of Pakistan, Sarfraz Bugti “There have been 24 suicide bomb attacks since January this year, and 14 of them were carried out by Afghan nationals.”
With posing a conditionality, Sarfraz Bugti stated, “If they do not go, … then all the law enforcement agencies in the provinces or federal government will be utilized to deport them.”
In response to that, the Afghan government spokesperson, Zabihullah Mujahid urged the Pakistani government to reconsider the decision, and not to relate Afghan refugees with Pakistan’s security problems.
To date with many refugees leaving Pakistan, a consistent question is drawn of whether the Pakistan government was lawfully authorized to do so or not.
As per Article 33 of the International Refugee Convention of 1951, “ no State party “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.
But also under Article 33, refugees or asylum seekers cannot invoke protection against “refoulement” who pose a security threat to the country or who have committed a particularly serious crime.
This principle as set out in article 33 applies only to refugees and persons who are not recognized to be refugees can be expelled.
Besides that, where article 33 of the 1951 Refugee Convention applies only to refugees, Article 3 of the Convention against Torture has expanded the scope of the protection against expulsion.
As it explicitly prohibits States parties to “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.
It must be noted that in contrast with Article 33 of the 1951 Convention, Article 3 of the Convention against Torture does not include any public security exception, and every person is protected against expulsion to face torture, regardless of what he or she is or may have done in the past.
In addition to that, Article 3(2) of the Convention states explicitly that for the purpose of determining whether there are grounds of torture, proof is required on the end of the refugee to support their torture, which will be consequently examined by the General Committee to decide on expulsion.
Now as per the International Refugee Law delineated earlier, Pakistan has provided an argument of Afghan refugees posing a threat to the security of Pakistan which relates to Article 33 by literal words but also the Afghan refugees claim that they are not safe back in Afghanistan, which brings to the other condition of Refugee Convention to not return refugees in any circumstances when they are not protected in their homeland.
In this case, a detailed lawful examination is required on the part of the law and security agencies of Pakistan of whether all Afghan refugees are associated with terror attacks in Pakistan and are the Afghans are not safe back in Afghanistan because the acts of few cannot pose to bear consequences for all.
The situation of Afghan refugee expulsion is more complex because Pakistan is not a signatory to the 1951 Geneva Convention and its 1967 Protocol relating to the Status of Refugees; instead, it governs the entry and presence of refugees under the country’s Foreigner’s Act.
As per the Pakistan Foreigner’s Act, the Pakistan authorities are granted the right to apprehend, detain, and expel foreigners, including refugees and asylum seekers lacking valid documentation.
The perplexity does not end here because as Afghan refugees since the time of the Soviet Invasion are expelled, many generations of them have lived in Pakistan and many of the Afghans were born in Pakistan.
In addition to that many Pakistani rights activists and lawyers raised concerns that the refugees who were arrested recently possessed valid documents such as the Proof of Registration (PoR) and Afghan Citizen Card (ACC ) cards even though expired ones.
The government had yet to decide whether it would renew the PoR cards or extend them.
In fact, according to Moniza Kakar, a lawyer providing free legal assistance to refugees highlighted that the Ministry of States and Frontier Regions (Safron) issued a letter in June, directing law enforcement agencies not to harass refugees possessing the PoR cards and ACCs until a decision was reached by the federal government.
She pointed out that the police and courts, however, did not accept the letter and continued attacking the refugees in Pakistan.
Even many Pakistani and International Lawyers, Human Rights agencies, and the UN have condemned the action taken by Pakistan against the backdrop of dire economic conditions for Afghans in Pakistan.
In this case, the Human Rights Commission of Pakistan (HRCP) advocated that the status of Afghan refugees as unauthorized refugees does not mean they are not entitled to protection, nor should they bear the brunt of Pakistan’s security concerns.
The HRCP also proposed that the next government must seriously consider signing the 1951 Geneva Convention and its 1967 Protocol relating to the status of refugees.
To avoid the puzzling situation specifically on the grounds of law, the HRCP stressed that most of the Afghan refugees are likely poor and vulnerable individuals who should be provided access to legal counsel immediately.
Even the spokesperson for the U.N. High Commissioner for human rights, Ravina Shamdasani emphasized, “We are very worried that those who are deported face a whole host of human rights violations including torture, arbitrary arrest and detention, severe discrimination, and lack of access to basic economic and social needs.”
Furthermore, Amnesty International shared concern, “If the Pakistani government doesn’t halt the deportations immediately, it will be denying thousands of at-risk Afghans, especially women and girls, access to safety, education, and livelihood.”
Through the lens of International Refugee Law, the deportation of Afghan refugees should have ardently taken over by examination of proof of the security of Afghans in Afghanistan and how the attacks in Pakistan were linked to these Afghan refugees.
After the examination, the right of legal consultancy should have been provided to refugees so that even if undocumented refugees took refuge in Pakistan there should have been a proper channel to decide their stay than to leave them abandoned at the borders.
Taking in refugees is not the most crucial decision but their rehabilitation in the host country is far more important which also leads Pakistan to sign the Refugee Convention for proper refugee, immigrants, and other nationals rehabilitation in Pakistan for avoiding any such forced expulsions.