Iraq: The Case for the Voluntary Repatriation Standard for Expatriates

By: Chad Antuma

From Saddam to ISIS, Iraq has been in a constant state of war, discontent, and disrepair. This has created a dangerous environment for many individuals within the country.[1] Refugees have flooded to from Iraq to neighboring middle eastern countries, European countries, and even to the United States since the reign of Saddam Hussain and have continued to do so consistently because of various terrorist groups and unstable government. War and terrorism have pushed many natives from their homes to countries that have not accepted or integrated the refugees into their society, and as a result, some governments have been or want to repatriate Iraqi nationals.[2]

Today, the United Nations Refugee Agency (UNHCR) and the United States Institute of Peace have dubbed Iraq’s situation as a refugee crisis.[3] International law and some governments laws have provided sanctuary for some of these refugees, while other governments have begun to send native Iraqis home.[4] This raises the question, should hosting countries return expatriates and refugees to Iraq and what should Iraq and the international community do to ensure the safety of the individuals returning?

I think the legal answer is unclear, and it’s a very difficult political question to answer. For example, the 1951 Convention Relating to the Status of Refugees, the leading source on international refugee law, creates an undeniable international appreciation, not a mandate, that hosting countries should facilitate the assimilation and naturalization of refugees.[5] Further, the Convention states that hosting states “shall not expel a refugee lawfully in their territory save on grounds of national security or public order”[6]  While this offers protection to refugees, this language begs the question, what counts as repatriation for the benefit of the public order? The President of the United States, for example, issued an executive order in 2017, that stated that removal of aliens could be for many reasons ranging from a criminal conviction to the independent personal “judgment of an immigration officer.”[7] Should international law support repatriations with such wide-ranging authority and discretion like this?

To further complicate the legal question, the 1950 Statute of the Office of the United Nations High Commissioner for Refugees, mandates that the UN High Commissioner has an affirmative duty “to facilitate the voluntary repatriation of refugees, or their assimilation within new national communities.”[8] This suggests that the UNHCR and the international members of the United Nations should support only the voluntary repatriation of Iraqi nationals, or the assimilation into their society.[9] This has led international human rights advocates to believe that there is an international law requiring voluntary repatriation.[10]

One thing is certain, there are a lot of practical reasons to support the conclusion that voluntary repatriations should be the norm rather than the exception, especially when considering repatriation to Iraq. First, Iraq is the under constant pressure from terrorist groups and other violent militias that pose a relentless risk to civilians.[11] This creates a problem on more than front, not only do expatriates being returned to Iraq face a significant risk of torture or death from terrorist cells, they also must be concerned about the Iraqi government. Allegations of extrajudicial killings and torture are commonplace in Iraq[12] and the lack of community, work, and travel documentation make expatriates that much more vulnerable of being mistaken for members of terrorist organizations.

Further, many individuals that would be returning to Iraq have been subject to western influences. For example, some expatriates have tattoos, some are Christians, and others may not even know the language.[13] This again presents a practical problem when returning expatriates to such a hostile environment that is so unsupportive to western culture. Iraq has been hostile to western culture and influences since the reign of Saddam Hussain, and terrorist groups pose significant risks to western influenced now foreigners.[14] Killings, torture, and kidnapping have been the M.O. terrorist groups in Iraq.[15] Yet, despite the risks of repatriation and the international consensus that involuntary repatriations should not happen, countries like the United States, Germany, and other European countries continue to increase their repatriation efforts.[16]

The political tension over refugees and non-citizen Iraqi Nationals within the various host nations has pushed many governments to a breaking point.[17] In this time of political turbulence, it is important to remember that there is an international human rights rule against involuntary repatriations that intends to provide protection to some of the most vulnerable people in the world. It is even more important to realize the deleterious impact on the individuals who are subject to the involuntary repatriations that are becoming commonplace today.

[1] Dep’t of State, Human Rights Report, Iraq 28 (2017) https://www.state.gov/documents/organization/277487.pdf.

[2] UNHCR, Iraq: UNHCR’s preliminary repatriation and reintegration plan (April 25, 2003), https://www.unhcr.org/afr/news/briefing/2003/4/3ea938204/iraq-unhcrs-preliminary-repatriation-reintegration-plan.html [hereinafter Repatriation Plan].

[3] UNHCR, Iraq Emergency, https://www.unhcr.org/afr/iraq-emergency.html (last visited Mar 11, 2019); United States Institute of Peace (USIP), The Current Situation in Iraq (Sept. 1, 2017), https://www.usip.org/publications/2017/09/current-situation-iraq

[4] See Repatriation Plan, supra note 2.

[5] Geoff Gilbert, The International Law of Voluntary Repatriation, https://www.unhcr.org/5ae079557.pdf; Convention and Protocol Relating of the Status of refugees art. 34, July 25, 1951, 189 U.N.T.S. 137, https://cms.emergency.unhcr.org/documents/11982/55726/Convention+relating+to+the+Status+of+Refugees+%28signed+28+July+1951%2C+entered+into+force+22+April+1954%29+189+UNTS+150+and+Protocol+relating+to+the+Status+of+Refugees+%28signed+31+January+1967%2C+entered+into+force+4+October+1967%29+606+UNTS+267/0bf3248a-cfa8-4a60-864d-65cdfece1d47.

[6] 189 U.N.T.S. 137

[7] Exec. Order No. 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), https://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/.

[8] UN General Assembly, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950, A/RES/428(V), https://www.refworld.org/docid/3ae6b3628.html.

[9] See id.; See also Gilbert, supra note 5.

[10] See Gilbert, supra note 5.

[11] See Dept. of State, supra note 1.

[12] See Id.

[13] See, e.g., Peter Beaumont, Mum, imam and Saddam: what daring young Iraqis are saying with tattoos, The Guardian (Mar. 22, 2013), https://www.theguardian.com/world/2013/mar/22/young-iraqis-with-tattoos.

[14] See Patrick Cockburn, Iraq isn't as dangerous as it was – but many still live in fear, Independent (June 29, 2018), https://www.independent.co.uk/voices/iraq-danger-recovery-isis-war-us-syria-jihadis-a8422571.html.

[15] See Dept. of State, supra note 1.

[16]See European Council on Refugees and Exiles, Germany increases repatriation efforts for rejected Iraqi asylum seekers (April 27, 2018), https://www.ecre.org/germany-increases-repatriation-efforts-for-rejected-iraqi-asylum-seekers/; See Repatriation Plan, supra note 2; See ACLU of Michigan, Iraqis Face Torture or Death if Deported: Hamama v. Adducci, https://www.aclumich.org/en/cases/hamama-v-adducci (last visited Mar. 11, 2019).

[17] See, e.g., Eliza Grinberg, U.S. and Iraq Reach Impasse on Return of Iraqi Nationals, (Oct. 5, 2018) http://myattorneyusa.com/immigration-blog/us-and-iraq-reach-impasse-on-return-of-iraqi-nationals.