Caught in a trap

The so called Internal Flight Alternative as a concept of political regulation in refugee policies

draft paper presented on 29.01.02 to the Ankara Conference on European Asylum Politics

by Thomas Uwer

Let me start with something you all might know too well: The language of refugee politics, which consists to 90 % of euphemisms and to 10 % of statistics. The first and simple truth that everyone learns in refugee politics is that one should never be taken in by false promises and never believe in the inflated names they bear - neither in "complementary protection" and "protection mechanism" nor "regionalisation" and its "specific regional context" and especially not the regularly mentioned "new challenges" in refugee protection. Conferences like this are always a good opportunity to stress the terms that have to be achieved by refugee policing, i.e. the rights of refugees - not a "mechanism" - which are to be understood as universal, rather than regional or contextual.

Last summer, the first paradoxical approach in establishing an international framework for the universal rights of refugees inside a world of nation-states celebrated its 50th anniversary. A number of commentators questioned whether the Geneva Refugee Convention was actually still alive. Especially those states that once brought the Convention into life now consider it a moral obligation rather than a binding contract (1): A surplus in morality that will always be the first sacrifice in times of crumbling national economic outputs. Refugees - once seen as victims of oppression by socialist states - have become unwanted again in their host countries; asylum, once regarded almost as a synonym for exile, is now said to be short-term or at least limited. A development which is reflected in the practice of refugee politics too. In addition to the traditional means of domestic regulation to hinder integration and assimilation, practised by all European states (2), asylum-political restriction is increasingly banking on a shift of refugee protection to regions outside Europe. The aim is to receive and hold up refugee movements already in the areas where they arise. Therefore, refugee protection is about to be wrapped up in foreign policies and to successively become object of political regulation by economic, diplomatic or military means, in an area which is like no other determined by national political interests. International refugee protection in the form of refugee rights, on the other hand, aims to establish legal standards independent from national political interests.

Almost at the same time with the Geneva Convention, a region could celebrate a round anniversary which "began to exist" with the first meaningful approach to establish a regional flight alternative. I.e., there was no actual celebration.
In June, 1991, the last units of the Anti-Iraq coalition left Northern Iraq, after having created a so-called Safe Haven within one of the biggest ad-hoc measures so far for the "repatriation" of refugees(3), and left the region to itself. Since then, Northern Iraq is considered a model case for the regional accommodation for refugees, for complementary protection at the pit face. The term complementary here is better to be understood as "opposite", a policy threatening to replace international refugee protection.(4)
The establishment of a "Safe Haven" in Northern Iraq is the practical model which serves as an orientation for foreign-political decisions in the sense of warding off flight by referring to the so-called Internal Flight Alternative (IFA). What is IFA? Actually, there is no international legal framework for it, definitions are controversial and sometimes vague(5). As Ruth Khalastchi (lawyer at the American Hebrew Immigrant Aid Society) puts it, the Internal Flight Alternative "allows a host state to deny asylum when it determines that the asylum - seeker did not exhaust all possibilities of reaching safety in an area within his or her own country before seeking international protection." (emphasis added) (6) This definition, which is not critical at all, already refers to an essential element of the concept of the Internal Flight Alternative: It is an instrument of national (or European) off-sealing towards refugees and not a concept of international refugee protection (7). This can be confirmed by the fact that, in despite the widespread application within national jurisdiction, there is no homogeneous definition in international refugee legislation (8). Accordingly, there are no compensating formal mechanisms on behalf of the asylum seeker, who now has to prove, additionally to the question of already sustained or expected persecution, why an Internal Flight Alternative, once stated to be safe, is not safe for him or her (9). While there is no valid definition of the IFA, nor a catalogue of conditions specified, under which a region within a country of origin can be regarded as "safe", the IFA has become an integral part within the national jurisdiction of almost every European country - with great success at least in the sense of reducing recognition rates. The success of this concept and the inability of international refugee legislation to deal with it have the same origin: A fundamental reversion of the legal relationship that was once formulated by the Geneva Convention (10). Using the example of Northern Iraq, I would like to explain this for three fundamental pillars of international refugee legislation: 1. the principle of durability as a prerequisite for legal security, 2. connected to this, integration and assimilation in the host country (or immediate repatriation), and 3. the principle of the individuality of refugee protection, which establishes the basic relationship between the refugee as an individual and the host state (11).

The Geneva Refugee Convention resulted from the recognition of a specific characteristic of a refugee, which is not to have any characteristic in a social sense at all. The round-about journey of thousands of Jews trying to escape Nazi-Germany which often ended in German concentration camps, the unwillingness and refusal of nearly all western nation-states to take refugees from the Nazi-regime ultimately shown in the Conference of Evian and the growing number of denaturalised and stateless persons that resulted from national politics in the preliminary stage of war. These experiences have clearly proven that within a nationally organised world, only those who are part of a national community enjoy the right to have rights (12). Therefore refugees have to leave the interim situation of being without rights as a consequence of flight as soon as possible - either by integration into the host state or by repatriation. Most simply the Geneva Convention is based on the fact, that a refugee only has rights when he or she is not a refugee any more, which means, that the Convention is -strictly speaking- not a legislation for refugees, but the attempt to abolish the refugee.
Rights and legal security, including predictability and reliability of governmental actions, always require durability as well, as demanded in Art.34 of the Geneva Convention (13). A "normal" life is only possible when a future can be planned, security only exists for someone who knows that the government of the state he or she is living in will not treat him or her as an undesirable person for political or economical reasons tomorrow.

Today, the usual status for Iraqi refugees in Europe is a limited residence permit. Although it is rarely questioned that Iraq is ruled by dictatorial regime, it has been stated that an Internal Flight Alternative exists and provides protection from persecution by the regime of Saddam Hussein. As a consequence, the majority of Iraqi refugees does not have durable, but preliminary residence permits, which were only given to them because deportation is not possible for practical reasons at present. The example of the Netherlands demonstrates the consequences for the people concerned (14).
With the decision of the European Council to put the prevention of the flight movement from Northern Iraq on the top of the agenda in Spring, 1998, Iraq was struck off the list of states whose citizens had until then been admitted without formal asylum proceedings, due to the general insecurity in Iraq. At the same time and for the first time, Northern Iraq was called an Internal Flight Alternative in the country report of the Dutch Foreign Office. Thus, not only did refugees from Iraq have to go through formal asylum procedures to obtain a residence permit, but recognition rates also rapidly went down. Until the year 2000, the recognition rate was lowered from over 70% to about 7%.
Now the Netherlands had the same problem as other European states: the number of recognised Iraqi asylum-seekers had decreased, a possibility for repatriation, though, does not exist. By a novella of the Aliens Act, which became effective in April 2001, a new principle of "self-responsibility" was introduced, meaning that the state is no longer responsible for a refugee after the final denial of his or her asylum application. That means: from this moment on, a refugee loses all legal status and by that the right to receive social welfare, medical supplies and accommodation, regardless of whether he or she is able to legally leave the country or not. Since then, Iraqi asylum seekers especially are being thrown out of their accommodation onto the street. Their fate is to be completely without rights within a constitutional state. They are legally created illegal persons. Obviously, it is no longer possible to talk about integration and assimilation, and this although these people do not just disappear from one day to another, but have solidified their situation over the past ten years. Thus, the reference to the Internal Flight Alternative practically serves to maintain, in the long run, the unbearable interim situation of having no rights as a consequence of flight.

This strategy, the purpose of which is to force people through a policy of starvation to "voluntarily" leave the country, is shared by most European states. Only the question for whom the IFA in Northern Iraq is to be considered as acceptable seems to be disputable. UNHCR considers the application of the IFA an exception and has developed criteria specifiying that family and/or other sufficiently close links to the region must exist in order for the concept to be applied. While this has at least lead to an exclusion of Arabs (and Kurds from Central Iraq) from the IFA concept in Germany, the German Oberverwaltungsgericht in Magdeburg decided in December 2001, that the provision of a basic food supply in Northern Iraq alone justifies the application of the IFA, even if this means that a refugee originating from areas under government control would have to stay in a refugee tent camp there. This shows that the IFA concept has in practice become an effective instrument to undermine basic standards in refugee protection. Neither the exclusion from fundamental rights (such as the right to freedom of movement) nor the uncertain security situation of refugees in these camps were taken into account by the court, but merely that UN food baskets provide a daily ration of 2.229 kalories, described as sufficient, especially since the inhabitants of these camps are not obliged to work (15). While stricter interpretations of the IFA concept are used to reduce recognition rates of Iraqi asylum seekers (and by that to lower their social standards) a general decline of fundamental standards in refugee protection takes place.

The cancellation of the original legal relationship - assimilate or repatriate - is spreading. The fundamental approach of allowing refugees to have rights, beyond their civic rights in the state they escaped from, is being devaluated with reference to the persecuting state. Following the idea of the Geneva Convention, flight results in the suspension of civic protection by the country of origin, and that is why responsibility for the refugee has to be asserted towards another subject of international law, i.e. a state. Therefore, the Convention regulates the legal relationship between the refugee as an individual and the host state, and not towards the country of origin, which is, in a way, suspended.
The Internal Flight Alternative now gives this responsibility back to the country of origin, and namely to regions outside the practical jurisdiction of a state. The demanded protection by a subject of international law, though, is not given to the refugee here, as it is shown by the example of Northern Iraq.

The so called safe Internal Flight Alternative in Northern Iraq has never been recognised by international law, nor has at least its borderlines to the rest of Iraq been determined. On the contrary, the relevant safety resolution is in a central passage strengthening the national integrity and sovereignty of Iraq (16). Consequently Iraqi law, including the Iraqi penal code, is still valid in Northern Iraq. An independent law has never been established as a result of the international non-recognition of the de facto self-rule of the Iraqi Kurds. This means that the practical independence of the Kurdish courts from the Iraqi jurisdiction is reduced to the question of whether to apply an Iraqi law or not. Any Kurdish "legal" act- such as lifting the so called "right of personal honour" by the local administration in the PUK-dominated parts of the region - is merely a political decision without the force of law. Kurdish jurisdiction is a shadow- no more than a quasi legal system functioning on the basis of the still existing Iraqi state, which understands any independent Kurdish jurisdiction as an offence in itself. There is consequently no legal security at all.
Additionally to the outlawed situation inside the region and the fact that the region in itself is not a legal subject to international law, the Internal Flight Alternative is not even safe. There are no treaties for the protection of the population, no long term stationing of safeguarding forces, no UN resolutions which would prohibit the Iraqi government from reintegrating the region of Northern Iraq into national territory and protect Northern Iraq from an invasion of Iraqi troops. The same absence of rights of a single refugee determines the whole outlawed region, the further existence of which does not depend on legal recognition or at least the definition of its borders, but on the political intention of neighbouring states and the hope that further tolerance seems to be opportune to the Iraqi state. Already tomorrow, Iraqi tanks could end the Internal Flight Alternative, without even breaking effective law. Durability - and here the wheel comes full circle - is also one of the essential criteria of UNHCR´s catalogue for the verification of whether or not an Internal Flight Alternative exists (17), i.e. if the region will safely exist beyond today. Within the national jurisdiction of EU-member states, this question is of hardly any importance.

The shift of refugee protection to an area outside governmentx protection also gives more importance to those transit countries which are closest to the region.
In the case of Northern Iraq, only Turkey's refusal to allow a repatriation of refugees prevents Iraqi refugees from being deported from Europe. Also this "guarantee" is not a right, but the result of national, in this case Turkish, policies (18). The increased interdiction of Europe's outer borders at the same time has the effect that refugees from Iraq stay longer in Turkey than before. Consequently, regulation and control already start here, in order to prevent further flight, whereas the EU intends to lower the number of people continuing their flight, by decreasing the number of Iraqi refugees within Turkey. The EU action plan, which is mainly based on the existence of an Internal Flight Alternative in Northern Iraq, intends far-reaching measures for the equipment and support of Turkish border security, but also for the pre-examination of the qualification for asylum of refugees, already outside of Europe. This might be even more effective considering that Turkey has ratified the Geneva Convention with a restriction to European refugees.

Thus, refugees are being referred to states whose only interest is to get rid of them as soon as possible rather than offer protection, and to a collective that defines itself regionally and ethnically, below governmental level.
In this, the effects on international refugee protection and on the region's local development cross each other. This is because it is not the legal relationship of the refugee towards the host state or the country of origin, but his or her relationship towards supposed ethnic, national or regional collectives, which determines the practice of the Internal Flight Alternative. What is questionable is not the return to a subject of international law providing rights and protection, but the return to people and territory under the terms of national, ethnic or regional affiliation. Obviously, this stands in strong contradiction to the idea of the universal right of man, who belongs to himself and not to ethnic entities, tribes, gods or territory.
In practice, it has long since been observed that this almost abolishes the required decisions on individual cases: The existence of an Internal Flight Alternative suggests the denial of an asylum application, without the specific (and individual) facts of persecution being given due consideration.

These collectives below governmental level have also proven incapable of holding people for a longer period and guaranteeing durable protection, security and the right to have rights. Ultimately, the Geneva Convention is also the result of the failure of this kind of protection model: The provision of minority rights under the mandate of the League of Nations between the two World Wars, which in practice did not mean protection, but enormously accelerated the destabilisation of states. Rights demand legal capacity. Without the right of protection which is guilty towards a state, international refugee protection is indeed a euphemism.

(1) Paradigmatic for this stands the wording "humanitarian obligation" which served as a justification for the recognition of gender-specific and non-governmental persecution in the first draft version of the so-called immigration law, presented by the German Federal Ministry of the Interior in summer, 2001. Apparently, binding international refugee law is not perceived as such, even if it would be opportune.

(2) In the words of the European Council: "to lower the pull-factor". In its recommendation 1440 (2000) to the Council of Europe, regarding the asylum policies of the states, the Parliamentary Assembly of the Council was warning of a growing climate "of hostility towards refugees, asylum seekers and other persons in need of international protection in Europe".

(3) "Repatriation" of course presumes that the refugees had left Iraq. "The Kurds in Iran were, but those massed on the Turkish border, and of most concern to both the humanitarians and the foreign policy analysts and practitioners of Realpolitik, were not. They had fled from their homes in Iraq into the freezing mountains, but they were still within the borders of Iraq. They could not be repatriated to a country which they had not left." Howard Adelman, Humanitarian Intervention: The Case of the Kurds, in: International Journal of Refugee Law, Vol. 4, Nr. 1, 1992, 10

(4) Later established protection zones, like in Rwanda and Bosnia, as well as the creation of a protectorate in Kosovo, would not have been possible without the "accident" of almost 2 million refugees trying to escape from Iraq in 1991, and the ad-hoc operation of the allies.

(5) see Hugo Storey: The Internal Flight Alternative Test: The Jurisprudence Re-examined, in: International Journal of Refugee Law, Vol.10 No. 3, 1998, 501ff

(6) Khalastchi, Ruth: The Internal Flight Alternative: Additional Hurdle or Realistic Option?, New York, 2001

(7) The object of refugee protection are the refugee's rights towards the host state, not the host state's rights towards the refugee, the latter being included in the Geneva Convention only in form of an exclusion clause, assuming that it is the refugee who is without any rights at first. (See also the explanation in the following).

(8) see Hathaway, J.C. / Foster, M.: Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination, background paper prepared for UNHCR´s Global Consultations in International Protection, 2001

(9) see Storey, 1998, 501: "Some have noted that the need for claimants to have to surmount (the) test sometimes seems to take them by surprise, and that proving fear of persecution locally is enough of a hurdle for an asylum seeker. To have to prove it here, there and everywhere within a country can appear too harsh."

(10) A regulation like the one of the Internal Flight Alternative is not provided in the Geneva Convention, nevertheless the jurisdiction on the Internal Flight Alternative usually assumes that it is implicitly included in the definition of refugee in article 1 (A) of the Convention.

(11) The principal of individuality is to be understood not only in the sense of respect towards the individual history of persecution, but as an underlying relationship that has to be defined between the single refugee as an individual and a subject of international law, i.e. a state. Individuality here is understood in the sense of subject as Alain Touraine takes it that presumes the "desire of being an individual, of creating a personal history, of giving meaning to the whole realm of experiences of individual life... " see: Alain Touraine, La formation du sujet, Paris 1966

(12) This commonly used wording refers to Hannah Arendt´s analysis of the problem of stateless persons and the apory of human rights in "Elements and Origins of Totalitarianism". Arendt stated that "niemand sich seiner elementaren Menschenrechte sicher sein kann, wo diese nicht von einem Staate geschützt sind, dessen Oberhoheit man durch Geburt und internationale Zugehörigkeit untersteht" (Hannah Arendt, "Elemente und Ursprünge totaler Herrschaft", München 1986, 485). Following Hannah Arendt the wording of "the family of nations" came to be a fact when people not simply lost their home but could not find a new one: "there wasn´t a place on earth where the wanderer could go without being restricted, no country willing to assimilate him and no territory for him to settle a community". She resumed that everyone who was thrown out of one of these closed national communities found himself thrown out of the whole "family of nations" and therefore thrown out of mankind.

(13) "The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings...".

(14) With this I refer to an essay by Rian Everdeen from the Dutch organisation "Fluchtelingen in de Knel", published in IkCON-Newsletter 1, November, 2001.

(15) see: Pro Asyl, Press releases February 2002, Thomas Uwer: "Wer isst, der hungert nicht", in: Jungle World, 30.01.2002, 9

(16) UN-Security Council Resolution 688 explicitly emphasises the territorial integrity and national sovereignty of Iraq, following which the Kurdish administration never was recognised internationally or unilaterally by any state.

(17) "Commenting on a proposed new federal regulation seeking to codify an internal flight alternative in the U.S. asylum procedure, the UNHCR regional office in Washington, D.C. in September 1998 laid out forthright and responsible criteria for assessing when to apply the internal flight alternative. It said:
It is UNHCR's position that the notion of an internal flight alternative should not, in principle, be applied in situations where the person is fleeing from State authorities, even if the authorities may refrain from persecution in other parts of the country.
In addition, for the concept of internal flight alternative to be applicable as a ground for rejection of a refugee claim, the alternative should be of a safe and durable character and where fundamental human rights are guaranteed. Not only must an individual's security be assured, but so should his or her basic civil, political, and socioeconomic rights. In other words, the individual must not be subjected to undue hardship or risk in the alternative location. Conditions in the area must be such that a relatively normal life may be led." Bill Frelick: Down the Rabbit Hole - The Strange Logic of Internal Flight Alternative, USCR, 1998, Hathaway states that: "... Second, the political instability of many developing States may mean that what is a `safe´ region today may be dangerous tomorrow."
In practice UNHCR is not that stringent with Northern Iraq. In the UNHCR Statements on Northern-Iraq the question of whether a durable safety exists or not somehow got lost between 1998 and 1999. This might explain the strong contradiction inherent when UNHCR states that the situation is "extremely volatile and may change at any time" and nonetheless comes to the conclusion that that "the situation in Northern Iraq is sufficiently stable to provide the opportunity of internal relocation for some Iraqi asylum-seekers".

(18) Actually the Netherlands, Sweden and Denmark came to an agreement with Turkish authorities allowing a "voluntary" return under the supervision of and in co-operation with a semi-governmental Turkish organisation against administrational "fees".