Pakistan's Afghan Deportation Policy: Humanitarian Crisis and International Obligations

Highlights

• By 20 November, Pakistan deported over 300,000 Afghan refugees to their country under duress. It has put Afghans at imminent risk of severe human rights violations, including arbitrary arrest, detention, torture, and other forms of inhumane treatment in Pakistan.
• Pakistani action constitutes a violation of international human rights law and contravenes the provisions of other international covenants to which Pakistan is a state party.
• In the past, while voluntary return of Afghan refugees to their homeland was encouraged by even UNHRC, there was an explicit silence on the status of those who do not wish to return amidst the continued uncertainty in Afghanistan.
• However, today, these principles are being thrown to the winds while Pakistan is resorting to arbitrary deportation.

Introduction

In early October 2023, Pakistan’s interim government announced a security-driven policy aimed at deporting “illegal” foreigners from 1 November, attributing the decision to the heightened violence within the country, primarily concentrated in the Khyber-Pakhtunkhwa (KP) and Balochistan provinces bordering Afghanistan. With the fear of arrests by Pakistan’s state agencies, thousands of Afghan refugees fled Pakistan, with the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) reporting that by 15 October 2023, nearly 59,780 Afghans had returned to Afghanistan. By 20 November, it was reported that over 300,000 Afghan immigrants were forced to return to their country under duress.

Pakistani actions put Afghans at imminent risk of severe human rights violations, including arbitrary arrest, detention, torture, and other forms of inhumane treatment in Pakistan. Further, the Office of the High Commissioner for Human Rights (OHCHR) contended that the Pakistani governmental actions put the deported Afghans, including civil society activists, journalists, human rights defenders, former government officials, and security force members, at grave risk with potential repercussions from Afghan Taliban government. Additionally, women and girls have been adversely affected and subjected to restrictive policies in Afghanistan that limit their participation in education, employment, and various aspects of daily and public life.

It is crucial to note that deportations lacking individualised assessments of personal circumstances or any instances of mass deportations would constitute a violation of international human rights law. This contravenes the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Pakistan is a state party. Such actions also violate international refugee law, which mandates individualised determinations and protection against refoulment, ensuring adherence to fundamental human rights principles.

Evidently, there has been a noteworthy shift in Pakistan’s approach toward Afghan refugees, transitioning from an open-door policy to a closed-door policy since the early 2000s. The challenges faced by the Afghans, including the closure of camps and educational institutions, not only pose immediate obstacles to their well-being but also jeopardise their future opportunities.

Afghan Refugees in Pakistan

Pakistan and Afghanistan share a topographically challenging 1,640-mile-long border, the Durand Line, literally coerced by the British and unrecognised by the Afghans till today. The border has remained largely porous for decades and Pakistan has fenced one segment of it along the KP, only in recent years leaving the border along Balochistan largely open. The continuous influx of Afghans into Pakistan began in the 1980s, triggered by the Soviet Occupation of Afghanistan, drawing Kabul into the broader Cold War between the Soviets and Americans. It also transformed Pakistan into a frontline state against the Communist Army with support from the United States and Saudi Arabia.

Afghans fleeing their country were allowed to enter Pakistan with their national identity cards treated as travel documents by the Pakistani authorities. As per various estimates, the number of Afghan refugees in Pakistan is over 4 million, of which a large proportion have resided there for generations, with a significant number even born in the country. However, the Pakistani state has claimed that over 1.7 million Afghans residing in the country were ‘undocumented’ as they entered Pakistan ‘illegally’ through its porous border for mostly economic reasons. Most of the uprooted Afghans in Pakistan were never able to return to their homeland, given perpetual war ever since, even as the Soviets exited Afghanistan in 1989.

The March 2005 Census by the Pakistani government revealed that over 80 per cent of Afghan refugees, the majority of whom are ethnic Pashtuns, crossed into Pakistan between 1979 and 1985. Whereas the refugee status is not permanent; repatriation is expected once conditions normalise in their homelands. In the Afghan context, comprehensive refugee repatriation remained elusive despite Pakistan’s multiple attempts because of protracted instability in Afghanistan, wherein Pakistan itself played a major role and, hence, equally complicit. For instance, an additional 600 thousand and many more Afghans were forced to cross over the Durand Line as the Afghan Taliban took over the country by overthrowing the Republican government in August 2021 with the implicit encouragement of the Pakistani establishment.

For long, the Pakistani establishment, starting with General Ziaul Haq’s administration, leveraged Afghanistan for its geostrategic objectives and received large amounts of foreign aid in the name of catering to the needs of the Afghan refugees in Pakistan . As Khalid Sayeed argues in his 1980 book, Politics in Pakistan, General Zia strategically exploited the Afghan sufferings through a dual-fold strategy to make Pakistan indispensable to the United States and claim pre-eminence across the Muslim World, and used international aid to strengthen Pakistan’s defence capabilities.

The presence of Afghans in Pakistan has always been a politically sensitive issue, with successive governments pledging to resolve the issue and repatriating them to Afghanistan over the years. It has also been exploited by many political actors as well as the military-dominated establishment to hide their governance failures, including the mismanagement of the country’s economy. Besides, Islamabad has conveniently used the refugee issue as a pressure tactic against various governments in Kabul on the pretext of security considerations.

As such, the Pakistani government took several similar exercises of varied scales in the last three decades. For instance, prompted by the raging violence of Tehreek-e-Taliban following the Pakistan military’s “anti-terrorism” campaign in the tribal districts bordering Afghanistan, thousands of Afghan refugees were forcefully repatriated in 2017. Human Rights Watch (HRW) called it the “most extensive and illegal forced repatriation of refugees in recent history worldwide.”

Likewise, the current deporation exercise follows the same precedent. Pakistan’s Afghan policy started hitting ground within just two years of assisting the Afghan Taliban’s return to power in August 2021. Pakistan had expected that the armed resistance from Tehrik-e-Taliban Pakistan (TTP) would go away after Taliban’s return. However, an unexpected surge in anti-state violence in Khyber Pakhtunkhwa and Baluchistan provinces after the Taliban’s return left Pakistan dismayed. Pakistan’s army-controlled interim government conveniently blamed Afghan migrants for complicity in these attacks and other criminal activities, including drug trafficking. Incidentally, while Islamabad further accused Kabul of shielding the proscribed TTP, the Afghan Taliban government repeatedly refuted such claims and instead criticised the Pakistani establishment for mischaracterising Afghan people.

Humanitarian Woes

Pakistan’s deportation exercise has once again uprooted thousands of Afghan families and pushed them into an uncertain fate and political reality torn by decades of war and food scarcity, a situation in part created by Islamabad. The situation of returning refugees is further compounded by Afghanistan’s deteriorating economy, the human rights situation under the Taliban regime, especially against women, and the aftermath of the devastating earthquake of October 2023. Within Pakistan, Afghan Refugees faced recurring court summonses, unlawful arrests, and the confiscation of their properties and assets in the name of repatriation by Pakistani authorities.

These factors made the forced repatriation of Afghan migrants even more concerning, especially for the former functionaries of the Republican government, rights activists, journalists and others who fled Afghanistan with the overtake of Kabul by the Taliban in 2021. Likewise, the new masters of Kabul have severely curbed the rights of women, including the denial of the right to education, work, or access to healthcare, and confined them to the domestic sphere.

Pakistan’s International Obligations

Roughly 6 million Afghans were pushed out of their country during the last five decades, with most finding refuge in either Pakistan or Iran. This made Pakistan host world’s largest single refugee population. Even as the country hosted such a large number of refugees, Pakistan has neither been a signatory to the 1951 Convention of the United Nations relating to the Status of Refugees nor its 1967 Supplementary Protocol. Consequently, this has rendered the legal status of Afghan refugees in Pakistan both ambiguous and uncertain.

In such cases, where relevant refugee instruments are absent, such as in Pakistan, defining refugee status becomes complex. The focus often shifts towards the necessity for seeking international protection. Recourse is frequently sought in customary international law, particularly the prohibition of refoulement, to ensure the protection of refugees in these non-signatory states. Therefore, it is these safeguards that grant Afghan refugees a prima facie refugee status in Pakistan.

The United Nations High Commissioner for Refugees (UNHCR) observes refugee status on a prima facie basis as follows:

This means that each individual member of a particular group is presumed to qualify for refugee status. This presumption is based on objective information on the circumstances causing their flight. Prima facie recognition is appropriate where there are grounds for considering that the large majority of those in the group would meet the eligibility criteria set out in the applicable refugee definition.

Following this, prima facie recognition presumes an applicable definition despite the absence of any treaty to substantiate it based on the refugee definition. Moreover, it calls for recognition—which is lacking in this case, given the changing policies of the Pakistani state.

The first significant intervention from the international perspective happened in 1988 when UNHCR entered into an understanding with the state of Pakistan regarding the voluntary repatriation of Afghan refugees. The agreement sought to encourage the repatriation coinciding with the impending withdrawal of Soviet forces, even as the UN refugee agency pledged to “continue, as required, to extend its assistance.”

The second intervention was the tripartite agreement of 1993 between Pakistan, Afghanistan, and the UNHCR. It again sought to encourage the voluntary return of Afghan refugees to their homeland while maintaining an explicit silence on the status of those who do not wish to return amidst the continued uncertainty in Afghanistan. This was followed by an agreement between UNHCR and Pakistan, which institutionalised the cooperative relationship between these two in the absence of Islamabad’s non-signatory status to the UN conventions and protocols on refugees.

A second tripartite agreement was convened in 2003 on the “Afghan citizens who have sought refuge in Pakistan” for their voluntary repatriation. It was the first agreement to differentiate between refugees and economic migrants. This assumes significance given that a significant number of Afghans were purportedly fleeing their country for economic reasons rather than the previous reasons, such as forced exit because of the breakdown of the order.

However, one of the most significant agreements concluded between UNHCR and Pakistan was the “Census and Registration of Afghan Citizens living in Pakistan” in 2004. This aimed to bring clarity on the actual number of Afghan refugees present in Pakistan, something that had “been a matter of conjecture with widely diverging estimates” for years. The resultant census concluded in 2005 revealed that there were approximately 3,049,268 Afghans present in Pakistan.

To ensure these refugees were documented, a new Registration Agreement was convened between UNHCR and Pakistan in 2006 to “develop policies that find comprehensive solutions to Afghan citizens who remain in Pakistan” as the 2003 Tripartite Agreement for voluntary repatriation neared expiry in December 2006. However, the registration process that commenced on 15 October 2006 progressed slowly due to suspicions among Afghans, fearing this might lead to their forced repatriation. Though this exercise granted temporary Afghan citizenship in Pakistan and proof of registration cards while allowing a three-year stay, fears persisted amongst Afghans about their fate when the three-year term ended, even as UNHCR described it as a “protection tool” for the registered Afghans.

UNHCR entered into one more agreement with Pakistan and Afghanistan in June 2007 to extend the voluntary repatriation of Afghans to December 2009. This assumes significance on various counts. Firstly, it granted a grace period for unregistered Afghans to register with the UNHCR. Secondly, it incorporated “principles of voluntarism and gradualism” for the voluntary repatriation of registered Afghan refugees to take into account the capacity of the Afghan government to gradually absorb its citizens in a phased manner. However, what made it concerning was its silence on what would happen to those Afghans who did not undertake voluntary flight to their country. It is this silence that increased fears among Afghan refugees in Pakistan and did not lead to any effective solution to the issue.

Based on these observations, it becomes implicit that the forced deportation of Afghan refugees by the Pakistani establishment contravenes the very understanding achieved through the 2007 voluntary repatriation that insisted on voluntarism and taking into consideration the conditions in Afghanistan. Though Pakistan may have succeeded in changing the political reality in Kabul by helping install its protégé of the Afghan Taliban, the resultant circumstances not only perpetuated instability in Afghanistan but also uprooted and brought an additional six hundred thousand more Afghans to Pakistan. The deportation exercise effectively puts the lives of these Afghans in danger by forcing them into political circumstances that they fled in the first instance. 

Conclusion

For decades, Afghans have faced inhuman treatment in Pakistan, a trend reflected in the 2023 deportation policy reminiscent of past actions such as the 2017 deportations. While the previous exercises brought Islamabad global censure, the current campaign appears less scrutinised. What makes this global disregard for the rights of Afghans more concerning is its execution by the military-dictated interim government that lacks a constitutional mandate to undertake such policy decisions having international ramifications. Furthermore, the manner of execution of this deportation campaign makes it implicitly evident that the military-dominated establishment initiated it to demonstrate its authority, given the fact that its popular legitimacy had suffered heavily on account of its continued overt political interferences, even as it disregarded Pakistan’s international obligations in safeguarding the rights of refugees as agreed to with agencies such as UNHCR.

*Zaheena Naqvi is a Research Intern with the International Centre for Peace Studies, New Delhi. She is pursuing her postgraduation from the Nelson Mandela Centre for Peace and Conflict Studies, Jamia Millia Islamia. The views expressed here are her own.