International Journal of Terrorism and Political Hot Spots ISSN: 1932-7889

Volume 8, Number 1/2 © Nova Science Publishers, Inc.

EXPULSION OF AFGHAN REFUGEES

FROM PAKISTAN: A VIOLATION OF PRINCIPLE
OF NON-REFOULEMENT

Shamreeza Riaz*
Teaching / Research Associate at the Department of Law,
Faculty of Shariah & Law, International Islamic University,
Islamabad, Pakistan

ABSTRACT

This article addresses the need of an implementation mechanism for the protection of
refugees‘ rights. However, it is contended that the principle forms part of Customary
International Law, under which it is binding on all states irrespective of whether or not
they are parties to the Convention Relating to the Status of Refugees 1951 or its Protocol
1967. Since last decade, U.S and its allies have been fighting to curve terrorism which
has raised many issues such as human rights violation, deportation, expulsion,
extradition, rendition and many more. Pakistan has played a very critical role in War
against Terrorism, particularly in reference of war in Afghanistan. Particular concern of
this article is the violation of refugees‘ rights in Pakistan in 2008 and 2010. This article
would highlight the legislation regarding non-expulsion of Afghan refugees from
Pakistan to a territory where they have well founded fear of persecution. Article is
divided into three parts, the first one deals with ―Principle of Non-Refoulement‖, the
second one deals with ―exceptions to the principle‖ whereas the last one discusses the
violation of the very principle in Pakistan with reference to Afghan refugees.

Keywords: Afghan Refugees, Expulsion on the basis of War on Terror, Violation of

Principle of Non Refoulement

*
The Author is a Research Associate at the Department of Law, Faculty of Shariah & Law, International Islamic
University Islamabad. She wishes to thank Mr. Muhammad Zaheer Abbas, Research Associate, for his
valuable comments and suggestions. All errors and omissions are, however, her own. .The author can be
reached at: shamreeza.riaz@iiu.edu.pk.
2 Shamreeza Riaz

INTRODUCTION
After 9/11, status of Afghan refugees1 has come under a great deal of criticism, not only
in Pakistan but also in whole world. Under the Customary International Law, all states are
bound not to expel refugees in a state where they have a well founded fear of persecution. UN
Higher Commission for Refugee (UNHCR) has been working in Pakistan since 1979 and has
registered many refugees till the incident. The United States reacted so violently to the attacks
that numerous innocent lives have been lost in the so called War against Terrorism. The
Pakistan government ordered thousands of Afghans to leave the country or face expulsion by
June 30, 2005. The action was taken on the grounds that the tribal agencies situated on the
Pak-Afghan tribal belt were being used as sanctuaries by hundreds of militants linked to al-
Qaeda and the Taliban, thereby creating security problems for the country. The authorities
believed that some of the Afghan refugees were also associated with militants posing a threat
to National Security and public order.2Moreover, authorities in Pakistan took an action in
2008 and ordered the deportation of about 50,000 Afghan refugees from a troubled tribal
region amid a major military operation against al-Qaeda and Taliban fighters.
The government personnel claimed that expelling was ordered from Bajaur tribal region
as many of the refugees had links with armed groups that were taking part in terrorist
activities throughout the world and especially in Pakistan. It was a blithe disregard of
principle of Non-Refoulement as they were expelled from Pakistan on the basis of an
assumption that they were associated with banned armed groups. Furthermore, it was a
violation of the principle that no one should be condemned unheard as they were not given a
chance to defend their case in any court of law. They were expelled to their state, where there
existed fear of persecution as a result of so called war on terror. According to UNHCR
report, over 70,000 refugees were returned to their homes in 2010. Such a large number of
expulsion has raised a question whether or not so called voluntary Repatriation of refugees
indicates volition of the principle of Non-refoulement? According to the UNHCR report,
many Afghan Refugees were expelled to their state involuntarily in 2008 and 2010 from the
territory of Pakistan. Here many questions arise, whether Pakistani Government has any right
to do so under any law? Is Pakistani Government not bound to fulfil Customary International
Law obligations? How would we deal with the issue of violations and disregard of the
established international principles?

A. PRINCIPLE OF NON-REFOULEMENT
This part would highlight the important principle of Non-Refoulement, which is a
peremptory norm under Customary International Law and all states are bound to follow this

1
The term refugee is defined by the Convention relating to the Status of Refugees 1951 as ―a person who is outside
his or her country of nationality or habitual residence; has a well-founded fear of persecution because of his or
her race, religion, nationality, membership of a particular social group or political opinion; and is unable or
unwilling to avail himself or herself of the protection of that country, or to return there, for fear of
persecution.‖ See further Goodwin-Gill ,The Refugee in International Law, second edition, (Oxford,
Clarendon Press 1998).
2
Amir Mir, Afghan Refugee and Al-Qada ,Cobra post News, Available at http://www.cobrapost.com/documents
/AfghanAl.htm, (Last accessed date 11.5.2011).
 Expulsion of Afghan Refugees from Pakistan 3

principle. It is very important to understand the meaning, scope and status of the principle.
The term Non-Refoulement is derived from a French term ―refouler‖ which means drive back
or to fend off.3Principle of non-refoulement deals with the Status of Refugees which, in
Article 334, states: (1) No Contracting State shall expel or return „refouler‟ a refugee in any
manner whatsoever to the frontiers of the 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. (2) The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that country5. According
to article 33 (2) of the Refugee Convention, a refugee is not protected against refoulement if
there are reasonable grounds that he/she is a danger to the security of the country in which he
or she seeks asylum.
According to the text and history of Article 33(2) a provable danger to the community of
the country of refugee needs to exists and the article needs to be applied with great
caution.6The principle of non-refoulement is also considered to be applicable in a human
rights context as it prohibits the forcible sending or returning or in any other way transferring
a person to a country where he or she may face torture. Torture is not allowed under
Convention against Torture, CAT, in any way. Pakistan is not a party to 1951 Refugee
Convention7 but it is bound to follow Principle of Non-refoulement under Customary
International law and CAT.

B. EXCEPTIONS TO THE PRINCIPLE OF NON REFOULEMENT

As mentioned above in Article 33(2) Principle of Non-Refoulement seems to be an
absolute principle but there are two exceptions that are:

1. National Security
2. Public order

There are strict limits to the exceptions to non-refoulement articulated in the 1951
Convention on the Status of Refugees an on enacting anti-terrorism policies, to the detriment
of refugee protection. In order to avail protection under article 33(1), a refugee must not pose
threat to the security or community of the country of asylum. Moreover, to know whether or
not he is a danger to the security of community of the country of asylum, an assessment of his
past conduct is very essential. Non-refoulement, the doctrine central to refugee protection that

3
Guy S. Goodwin Gill, The Refugee in International Law, (Oxford: Clarendon press, 1985), p- 69.
4
Convention relating to the Status of refugee, adopted July 28, 1951, Article 33, , online available at <
http://www.unhcr.org/3b66c2aa10.html>, (last accessed date. 20.5.2011)
5
Ibid
6
Rene Bruin and Kees Wouters ,Terrorism and Non Derogability of Non Refulenment, Online available at <
http://www.cerium.ca/IMG/pdf/Bruin.pdf >,(last accessed 13.4.2011)
7
UNHCR calls Pakistan to sign 1951 Refugee Convention on Refugee world Day, held at Islamabad. Related
article available at < http://www.unhcr.org.pk/news/Microsoft%20Word%20-%2018-%20June%20-
%202010%20-%20UNHCR%20Press%20Release%20-%20UNHCR%20calls%20for%20Pa..pdf>,
(Last accessed 20.3.2011)
4 Shamreeza Riaz

prohibits return of an individual to a country in which he or she may be persecuted, is

emerging as a new jus cogens norm.8 After 9/11, several countries, who are party to the 1951
Convention related to Status of Refuges, are expelling refugees from their states following
two exceptions of the principle. These states are taking actions without investigating whether
or not they are threat to national security;that is yet another alarming threat to refugees preset
in any state.

C. CRITERIA AS TO BE PEREMPTORY NORM

All states are bound to follow peremptory norm of Customary International Law. As
International Court of Justice (ICJ) gave its decision in North Continental Shelf case; if it is
customary law, then it should be binding on all states. Here a question arises, whether non-
refoulement qualifies to be called a norm of customary law?
Article 38(1) (b) of the Statute of the International Court of Justice views ―international
custom- an evidence of a general practice accepted as law- as one of the sources of law which
applies on deciding disputes in accordance with international law. There are two requirements
for a rule to become part of customary international law; consistent State practice and opinio
juris, that is, the understanding held by States that the practice at issue is obligatory due to the
existence of a rule that requires it.

The fundamental humanitarian principle of non-refoulement has found expression in

various international instruments adopted at the universal and regional levels and is
9
generally accepted by States.

Therefore, if these elements are present in a law, it should be binding on all states as
customary international. These are as under,

1. Norm creating character10

2. Widespread11
3. State practice12

The above mentioned elements are present in principle of non refoulement. Allain in his
book, The Jus Cogens Nature of Non Refoulement states, ―It is clear that the norm prohibiting
refoulement is part of Customary International Law, thus binding on all States whether or not
they are party to the 1951 Convention.‖13 Good-win Gill argues ―state practice, since the
Convention is persuasive evidence of the concretization of a customary rule, even in the
8
Alice Farmer, Non-Refulenmemt and Jus Cogens: Limiting Anti-terror measures that Threaten Refugee
protection, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=alice_farmer,
(last accessed 15.4.2011).
9
Conclusion on the International Protection of Refugees: Non-Refoulement, Conclusion No. 6 (XXVIII), U.N.
High Commission for Refugees, Executive Comm., Programme (1977 )
10
The convention rule should be of a non creating character as could be regarded as forming the basis of a general
rule of law.
11
Very widespread and representative state supports for the rule, including of the states whose interests are
specifically affected.
12
Consistent practice and general recognition of the rule.
13
Allain, The jus Cogens Nature of Non-Refoulement, 13(4) INT‘L J. REF. L. 533, 538 (2001).
 Expulsion of Afghan Refugees from Pakistan 5

absence of any formal judicial pronouncement.‖14 Hence it is clear that Non-Refoulement is a

peremptory norm under Customary International Law.

D. VIOLATION OF THE PRINCIPLE OF NON-REFOULEMENT

IN PAKISTAN

Currently it has been a matter of consistent debate over the last decade whether or not
putting too many restrictions on movement of refugee‘s immigration indicates the practice of
violation of the principle of Non-refoulement by a state? Generally, the principle has been
under attack in two aspects, the first aspect is as a notion of National Security and to maintain
public order; the second aspect is ―hysteria‖ of the countries of asylum from increase in a
number of asylum seekers. Higher authorities rejected refugees on the frontier or borders,
without knowing the facts of individual cases to bring down the level of terrorists as soon as
possible.
The threat of terrorism is not a new phenomenon. There are numerous examples in the
20th century of resurgent groups which have resorted to ―terrorist methods‖ in order to further
their political aims. The States on whose territory these acts have occurred have a duty to
protect their citizens and have responded with the enacting of emergency anti-terrorist
legislation giving increased powers to their security services. Such anti-terrorist legislation
often undermines fundamental safeguards and the protection of human rights.
Following the attacks of 11th September 2001 on targets in the United States, many
States enacted or amended existing anti-terrorism legislation in order to counter the threat of
terrorism. However, it became clear that many of these methods restricted the protection of
human rights afforded to individuals under international law. In the United States, for
example, the Secretary of Defence authorised the use of enhanced interrogation techniques
such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to
cold or heat, sleep and dietary adjustments, 20-hour interrogations, removal of clothing,
deprivation of all comforts and religious items, forced grooming, exploitation of detainees‘
and individual phobias. These Techniques have been employed by security and intelligence
agencies as well as by ―private contractors‖ in the interrogation of terror suspects. The United
States‘ government has refused to acknowledge that such techniques, even when applied over
a prolonged period of time, violate the prohibition of torture and or cruel, inhuman or
degrading treatment or punishment15 On the other hand, Pakistan also enacted anti-terror
policies to control terrorist activities and expulsion of Refugees is one of them. In accordance
with anti terror policies, Pakistani Government has deported 50,000 and 70,000 refuges in
2008 and 2010 respectively to Afghanistan. Whereas many suspected refuges were
transferred to US and many other states to curve terrorism.
According to the United Nations‘ Commission on Human Rights, this practice of
transferring people in the name of investigation constitutes a cruel and inhuman and
degrading treatment which comes under the definition of mental torture as given by the UN
Convention against Torture. It applies to the practice of prolonged incommunicado detention.

14
Guy Goodwin-Gill, The Refugee in International Law, Oxford, Great Britain: Clarendon Press, 1985.
15
Concluding observations, Human Rights Committee, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006.
6 Shamreeza Riaz

Since September 11, 2001, the Article 33(2) exceptions are widely used as anti-terror
policies. As the absolute nature of non-refoulement in context of peremptory norms prohibits
torture and cruel, inhuman or degrading treatment in any case prohibition of torture is,
therefore, also part of customary international law that has attained the rank of a peremptory
norm of international law, or jus cogens.16 It includes, as a fundamental and inherent
component, the prohibition of refoulement to a risk of torture, and thus imposes an absolute
ban on any form of forcible return to a danger of torture which is binding on all States,
including those which have not become party to the relevant instruments.

E. PROHIBITION ON REFOULEMENT
Human rights treaties, conventions, human rights courts and domestic courts have ruled
that the right to be free from torture, cruel, inhuman or degrading treatment is absolute and
could not be violated under any circumstances. The prohibition of arbitrary deprivation of
life, which also includes an inherent obligation not to send any person to a country where
there is a real risk that he or she may be exposed to such treatment, also forms part of
Customary International Law. The prohibition of refoulement to a risk of cruel, inhuman or
degrading treatment or punishment, as codified in universal as well as regional human rights
treaties is an established principle of Customary International Law..17 Many International
Conventions, like Convention Against Torture (CAT), International Covenant on Civil and
Political Rights (ICCPR), United Nation of Human Rights?? (UNHR) and the European
Convention on Human Rights (ECHR) , prohibits refoulement of a person to his/her own state
or to any other state, where he/she has a risk of torture. Some of regional instruments are as
follows:
1967 Declaration on Territorial Asylum ―No person… shall be subjected to measures
such as rejection at the frontier or, if he has already entered the territory in which he seeks
asylum, expulsion or compulsory return to any State where he may be subjected to
persecution.‖18
African Organization of African Unity 1976 ―No person shall be subjected by a
Member State to measures such as rejection at the frontier, return, or Expulsion‖19
The jus cogens Nature of non-refoulement, ―The fundamental humanitarian principle
of non-refoulement has found expression in various international instruments adopted at the
universal and regional levels and is generally accepted by States.‖20It is also clear that the
norm prohibiting refoulement is part of Customary International Law, thus binding on all
States whether or not they are party to the 1951 Convention.
European Convention on Human Rights, Since the start of 'War on Terrorism' after the
incident of 9/11, the absolute prohibition on refulenment under Article 3 of the European
Convention on Human Rights has been the subject of intense criticism by some European

16
Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State of Emergency, U.N.
Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001,
17
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol
18
1967 Declaration on Territorial Asylum, A/RES/2132 (XXII), Art. 3(1)
19
African organization for African Unity, adopted on 1976, at Art. II(3)
20
Allain, The jus cogens Nature of non-refoulement, 13(4) INT‘L J. REF. L. 533, 538 (2001)
 Expulsion of Afghan Refugees from Pakistan 7

states. The United Kingdom, in particular, has argued that the principle of non-refoulement
under Article 3- which states that a state may not transfer an individual (regardless of the
danger they may pose) to any state where there is a "real risk" of subjection to torture,
inhuman or degrading treatment or punishment -is inappropriate when applied to suspected
terrorists considered to pose a serious threat to the safety and welfare of the community as a
whole. In addition, numerous European states have begun to deport individuals suspected of
involvement in terrorist activities to states with notorious reputations for ill-treatment on the
basis of Diplomatic Assurances. Apart from Article 33 of the 1951 Convention, these
instruments, UN charter, 1949 Geneva Convention on the protection of Civilian Persons,
1950 Convention relating to the Status of Refugees, 1966 Asian African Refugee Principles,
1969 American convention on Human Rights and 1984 Cartagena Declaration explicitly
prohibit refoulement in any circumstances. The Fundamental and non-derogable nature of the
principle is clear from above mentioned instruments.

CONCLUSION
It can be concluded from the above mentioned discussion that non-refoulement, as a
peremptory norm, is explicitly prohibited in international and regional human rights treaties.
According to some states, the absolute or non-derogable character of non-refoulement
should be upheld and to take both legal as well as practical steps necessary, to prosecute
suspected terrorists.21 However, the problem of attacks on the principle has intensified in the
wake of 9/11 events in New York and Washington D.C due to the so called anti-terror
measures taken in Pakistan. Repatriation is not the problem but it should be voluntary
repatriation rather than forced repatriation. The people, the Afghan refugees in Pakistan, are
ready and willing to return home. But where should they go? Is it not violation of human
rights to send them to a place where they already have well founded fear of persecution? It is
not conducive for them to go back and live a peaceful life at a place where there is no
security, peace and economic certainty.

REFERENCES
Primary Sources

1967 Declaration on Territorial Asylum, A/RES/2132 (XXII), Art. 3(1)

African organization for African Unity, adopted on 1976, at Art. II(3)
Conclusion on the International Protection of Refugees: Non-Refoulement, Conclusion No. 6
(XXVIII), U.N. High Commission for Refugees, Executive Comm., Programme (1977 )
Convention against Torture and Other Cruel, Inhuman or Degrading Forms of Treatment and
Punishment, 1984.
Convention Governing Specific Aspects of Refugee Problems in Africa, Organization of
African Unity, 1969.

21
Rene Bruin and Kees Wouters , Terrorism and non derogability of Non Refulenment available at <
http://oppenheimer.mcgill.ca/IMG/pdf/Bruin-2.pdf >,(Last accessed date 12.5.2011).
8 Shamreeza Riaz

Convention relating to the Status of Refugees, 1951.

Executive Committee of the High Commissioner for Refugees Conclusion No 6 (XXVIII)
1997; Conclusion No 79 (XLVII) 1996; Conclusion No 81 (XLVII) 1997; Conclusion No
25 (XXXIII); Conclusion No 17 (XXXI) 1980.
Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).
Protocol Relating to the Status of Refugees, 1967.

Secondary Sources

A Concluding observations, Human Rights Committee, UN Doc. CCPR/C/USA/CO/3/Rev.1,

18 December 2006
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under
the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
Allain, The jus cogens Nature of non-refoulement, 13(4) INT‘L J. REF. L. 533, 538 (2001)
Farmer ,Alice, Non-Refulenmemt and jus cogens :Limiting Anti-terror measures that
Threaten Refugee protection, available at http://works.bepress.com/cgi /viewcontent.cgi?
article=1000&context=alice_farmer .
Gill, Goodwin, The Refugee in International Law Second edition, (Oxford, Clarendon Press)
1989.
Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State
of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001.
Refulenment available at < http://www.cerium.ca/IMG/pdf/Bruin.pdf >
Rene Bruin and Kees Wouters, Terrorism and non derogability of Non refulenment,
< http://oppenheimer.mcgill.ca/IMG/pdf/Bruin-2.pdf >.
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