III. INTRODUCTION

The demise of the Taliban in Afghanistan has not ended one of the world's largest and most prolonged refugee emergencies. While tens of thousands of Afghans chose to return to their home country during each of the first three weeks of January 20023 several thousand others continued to flee, or attempt to flee Afghanistan to escape continuing aerial bombing and conflict.4 And, although the beginning of 2002 saw a higher number of returning refugees than new arrivals, there remain two million Afghans inside Pakistan and one and a half million in Iran5 who have serious fears for their lives and security should they go home.

These fears stem from the generalized conditions of insecurity caused by tensions and actual conflict between Northern Alliance commanders in the north of Afghanistan, and between rival tribal or political leaders in the south. Refugees also fear the general lawlessness that exists due to the limited influence certain current leaders have over the regions they ostensibly control. In addition, many refugees from ethnic groups associated with anti-Taliban forces (Tajik, Uzbek and Hazara) fear a return of the ethnic reprisals and factional fighting between different ethnic groups that were hallmarks of the pre-Taliban era.6 Ethnic Pashtun refugees, for their part, fear reprisals at the hands of other ethnic groups based on the presumed association between ethnic Pashtuns and the Taliban regime and its abusive practices.

The threat of continuing human rights abuse prevents many Afghans from returning to Afghanistan. Unfortunately, their concerns are unlikely to be quickly or easily addressed by the nascent interim government, while it seeks to establish its authority and yet depends for much of its support on a patchwork of warlords who now control Kabul and most of the rest of the country. In addition, the small multinational protection force based in Kabul has neither the mandate nor the countrywide presence necessary to halt violence in areas outside the capital.

While all Afghan refugees (including those who fled more than twenty years ago) now fear the insecurity described above, Afghans became refugees for a variety of reasons, because of pre-Taliban era abuses, human rights violations by the Taliban, or to escape the U.S.-led bombing campaign and related conflict involving Taliban and Northern Alliance forces. The latter precipitated the most recent of several major waves of refugee displacement. The first large exodus of refugees resulted from the December 1979 Soviet invasion of Afghanistan; which was followed by almost ten years of fighting between Soviet forces and the anti-Soviet mujahideen (Islamist guerrilla fighters) and further refugee outflows. The factional fighting and widespread destruction that ensued after the 1992 mujahideen victory over the Soviet forces led many thousands more Afghans to flee the country; and a further exodus occurred in response to the fighting that accompanied the Taliban's rise to power and its oppressive rule. Throughout each of these conflicts, Afghans often first sought greater safety inside Afghanistan. As fighting drew nearer, these same internally displaced Afghans were forced to move again, often trying to cross international borders in search of protection as refugees in neighboring countries.

Once they reached Pakistan or Iran, Afghan refugees faced new and serious problems as a result of governmental policies in these countries of exile. The most recent wave of Afghan refugees joined over three and a half million refugees already living in Pakistan and Iran. Both countries have grown increasingly disenchanted over the years about hosting such large refugee populations in the face of minimal international interest, financial support, or burden sharing.  Beginning in November 2000, the governments of both countries made clear their unwillingness to accept new flows of refugees by officially closing their borders with Afghanistan. This was an extreme step and one that Human Rights Watch has consistently and sharply criticized; such border closure policies are directly contrary to international standards, most fundamentally because they interfere with the right to seek asylum.7

Iran has been an egregious offender. Since the start of the U.S.-led bombing campaign on October 7, 2001, many Afghans attempting to seek asylum in Iran have been prevented from doing so. As a result, some ten thousand Afghans have had to remain at the Mile Forty-Six and Makaki camps for the internally displaced, which are located in Afghanistan's Nimroz province, close to the border with Iran.8 By sealing its borders, conducting systematic and large scale push-backs,9 and by insisting on the establishment of camps for displaced persons inside Afghanistan, the government of Iran has violated its obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the Refugee Convention).

Despite the official closure of its border with Afghanistan, Pakistan has received about 160,000 new Afghan refugees since October 7.10 However, the Pakistani authorities have also engaged in border push-backs of Afghans seeking to enter their country, and have forcibly returned some Afghans from inside Pakistan to serious conditions of insecurity and abuse, in violation of the customary law norm of nonrefoulement.11 Even so, the Pakistan government has allowed most Afghan refugees who have been able to enter its territory unofficially to remain inside Pakistan and, at the Chaman official border crossing point, the authorities have screened refugees and granted entry to those considered most vulnerable.

Notwithstanding these more generous policies, however, there are still serious problems facing Afghan refugees inside Pakistan. First, the increasingly hostile policy position of the Pakistani government has created a climate in which law enforcement personnel harass, extort, and detain Afghan refugees because of their undocumented status --- often without cause or access to judicial review. Second, government leaders have been overtly hostile to Afghan refugees, particularly in the North West Frontier Province (NWFP),12 and have shirked their responsibility to identify safe and healthy places for refugee camps. Third, the basic right of refugees to protection and assistance has been ignored and thwarted by the "invisible" status of newly arriving refugees in urban environments and by the unwarranted use of force by security personnel in camp settings. United Nations (U.N.) agencies and nongovernmental organizations (NGOs) are often faced with the difficult choice of either continuing to work within these hostile conditions or protesting them and jeopardizing their access to the refugee population, since the government of Pakistan ultimately grants that access.

This report is based on a mission to Pakistan that Human Rights Watch took from November 10 to December 2, 2001, and subsequent research. In Pakistan, interviews were conducted with refugees in Shamshatoo camp, new Jalozai camp, Kotkai camp, and in numerous urban settings in and around the city of Peshawar. Refugees were also interviewed in the town of Quetta and at the border crossing near the town of Chaman.13 International NGO and U.N. agency staff and the staff of local Pakistani and Afghan NGOs were also interviewed, as were Pakistani authorities. The names of all refugees, NGO, and U.N. agency staff have been changed or withheld to protect their privacy, security, or positions.

3 Haroon Rashid, "Pakistan Offers Refugees Mixed Prospects," Associated Press, January 21, 2002 (noting that "some 35,000 refugees went back [to Afghanistan] in the first half of January.").

4 Ibid., (estimating that about 13,000 new refugees have fled from the north of Afghanistan in fear of ethnic reprisals against the Pashtun ethnic group).

5 UNHCR, Afghanistan Facts and Figures, at http://www.unhcr.ch.

6 See e.g. "Foreign-Sponsored Human Rights Disaster Ignored by the World," Amnesty International Press Release, November 29, 1995.

7 See e.g. "Refugee Crisis in Afghanistan: Pakistan, Tajikistan Must Reopen Borders to Fleeing Afghans," Human Rights Watch Press Release, at http://www.hrw.org/press/2000/11/afghanistan.htm.

8 BBC Monitoring International Reports via News Edge Corporation, December 5, 2001.

9 Throughout this report the term "push-back" will be used to describe a governmental policy of intercepting refugees at, or just inside the border and sending them back to Afghanistan.

10 "UNHCR Urges Refugees Not To Rush Home Despite Taliban Collapse," UNHCR News Release, December 7, 2001.

11 The international customary law norm of nonrefoulement protects refugees from being returned to a place where their lives or freedom are under threat. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That nonrefoulement is a norm of international customary law is well-established. See, e.g. ExCom Conclusion No. 17, Problems of Extradition Affecting Refugees, 1980; No. 25, General Conclusion on International Protection, 1982; Encyclopedia of Public International Law, Vol. 8, p. 456. UNHCR's ExCom stated that nonrefoulement was acquiring the character of a peremptory norm of international law, that is, a legal standard from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. See ExCom Conclusion No. 25, General Conclusion on International Protection, 1982. The Executive Committee ("ExCom") is UNHCR's governing body. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law and ExCom member states are obliged to abide by them. Both Iran and Pakistan are ExCom member states; as such they are obligated to respect the international standards stipulated in the Conclusions

12 The NWFP is an elongated territory that stretches from the mid-point of the Afghanistan-Pakistan border up to Pakistan's northern border with Afghanistan, directly below Tajikistan.

13 In general, refugees in the Peshawar area were fleeing from Jalalabad, Kabul and some northern provinces. Those in Quetta were fleeing Herat, Mazar-i Sharif, Kandahar, Oruzgan and Helmand provinces.