The Iraqi Refugee Crisis: Whose Problem Is It? Existing Obligations Under International Law, Proposal to Create a New Protocol to the 1967 Refugee Convention, & U.S. Foreign Policy Recommendations to the Obama Administration

• Author: Rita Bettis
• Position: J.D. Candidate, The University of Iowa College of Law, May 2010.
• Pages: 01

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I Introduction

"Operation Iraqi Freedom" has led to massive humanitarian devastation in the Middle East region. It is estimated that the conflict has led to the internal and external displacement of at least 4 million Iraqis.¹ Ultimately, Page 263 this Note finds that current international law is inadequate to meet the humanitarian crises that stem from military conflicts entered into in violation of international law, as the Iraqi refugee crisis demonstrates. Accordingly, this Note recommends an additional Protocol to the 1967 Refugee Convention and Protocol. Finally, this Note makes specific recommendations to the current U.S. Presidential Administration as it develops the U.S. response to the disaster.

Part II outlines the respective responses to the ongoing Iraqi refugee crisis from the international community, host countries, and the U.S. government during both the Bush and Obama Administrations. Part III takes up the question of what legal obligations host countries, the United States, and the international community possess in regard to the Iraqi refugee crisis under current international law, and proposes a new Protocol to the 1967 Refugee Convention and Protocol. The proposed Protocol would require states that create massive humanitarian disasters through their unlawful entry into war to provide for the financial costs of addressing the toll. Part IV concludes the Note with legal and policy recommendations to the international community and the obama Administration.

II Development & Scope of the Iraqi Refugee Crisis

In March 2003, the U.S. military launched "Operation Iraqi Freedom," in which it invaded Iraq and ultimately removed Saddam Hussein and the Baath Party from political power.² From March 2003 to November 2007, U.S. bombing and other military actions, as well as the Iraqi insurgency and sectarian violence, caused an estimated 4.4 million Iraqis to flee their homes.³ This number represents over one-seventh of the entire population of Iraq.⁴ The Iraqi refugee crisis should not be underestimated. It is the fastest-growing refugee crisis in the world.⁵

It is estimated that over 2 million of these refugees fled Iraq to neighboring Syria, Jordan, Egypt, and Lebanon; the rest are internally Page 264 displaced within Iraq.⁶ The U.N. High Commissioner for Refugees reported that by the end of 2007, the Middle East region was host to one-quarter of all refugees worldwide, the majority of whom were from Iraq.⁷ Iraq is the second largest source of refugees, with Afghanistan being the largest.⁸ Together, these two countries account for nearly half of all refugees worldwide.⁹ The Iraqi refugee crisis disparately affects women and children, who comprise over 83 percent of all Iraqi refugees.¹⁰

A The Responses of Host Countries: Syria, Jordan, Egypt, & Lebanon

While 90 percent of Iraqi refugees have settled in Syria and Jordan, both countries have since closed their borders to Iraqi refugees, citing their economic inability to continue bearing the costs of providing humanitarian assistance alone.¹¹ Within Iraq, ten of the eighteen Iraqi sub-state governorates have restricted the entry of internally displaced Iraqis. ¹² The restriction results in the concentration of many displaced persons in the center of Iraq, the most dangerous region, where humanitarian assistance organizations cannot reach safely.¹³ Authorities within the ten Iraqi Page 265 governorates explain their restriction of intra-Iraq migration by citing scarce local social services and infrastructure, as well as security concerns. ¹⁴

While the sheer numbers of Iraqis displaced by Operation Iraqi Freedom demonstrate the breadth of the crisis, conditions facing those refugees further highlight the seriousness of the problem. Conditions for refugees are a continuing issue of concern for human rights organizations. The overwhelming majority of Iraqi refugees in Syria and Jordan live in impoverished camps, where medical treatment for sick and elderly refugees is often difficult to access.¹⁵ In Syria, where an estimated 1.5 million Iraqi refugees reside, domestic law does not permit Iraqis to work.¹⁶ This leaves most refugees desperately impoverished.¹⁷ Humanitarian assistance comes from UNHCR, the World Food Programme ("WFP"), the U.N. Children's Fund ("UNICEF"), the U.N. Population Fund ("UNFPA"), and the World Health Organization ("WHO").¹⁸ However, due to a lack of financial support from the international community, many basic needs, such as food, medical treatment, and education, go unmet.¹⁹ As a result of the rampant conditions of poverty, some Iraqi refugees living in Syria have turned to sex work and child labor.²⁰ Rates of sexual assault and domestic abuse have also increased.²¹

Conditions are even worse for the estimated 500,000 Iraqi refugees in Jordan, where UNHCR is currently able to provide food assistance to only 9190 people and financial assistance to 7708 families.²² This low number is due to a lack of resources rather than a lack of need.²³ As in any refugee crisis, the majority of the people displaced are women and children whose husbands and fathers were either killed in Iraq or remained there.²⁴ In Jordan, where the government does not recognize the legal status of most refugees and does not permit them to work, many women and girls are forced Page 266 into sex work to support themselves.²⁵ In addition, refugees lack access to basic health care. ²⁶ Iraqi children are permitted to attend public school in Jordan, but many do not because they lack required documentation or they work illegally during the school day to provide for themselves and their families. ²⁷

Non-governmental organization ("NGo") fieldworkers report that incidents of rape are high for many women Iraqi refugees, and medical care is not available to address the physical and psychological trauma resulting from their experiences in Iraq. ²⁸ Women in Jordanian refugee camps lack access to reproductive health care when it comes to prevention of and responses to gender-based violence, safe delivery services, family planning, or treatment of sexually transmitted diseases including HIV/AIDS.²⁹

In Lebanon, where an estimated 50,000 Iraqi refugees have fled, the government continues to carry out its policy of detaining Iraqi refugees unless they can obtain a sponsor and fees in excess of $1600.³⁰ In order to secure their release, the UNHCR sponsored Iraqi refugees in arbitrary detention in Lebanon, paid their fees, and worked with the Lebanese government to allow for their regularization and ability to work legally in the country within three months of release.³¹ In order to do so, the UNHCR had to divert precious and scarce financial resources from more basic humanitarian aid.³² More than three-fourths of all Iraqi children in Lebanon do not attend school due to high tuition and their need to work illegally to earn money.³³

While a relatively small number of Iraqi refugees have settled in Egypt, the Egyptian government provides them with little to no support. It is estimated that 150,000 Iraqi refugees reside in Egypt.³⁴ Egypt does not permit Iraqis to work and fails to provide Iraqi children with access to public schools.³⁵ Rising food prices in Egypt have made already difficult conditions Page 267 desperate.³⁶ Iraqis also have trouble accessing medical care in Egypt.³⁷Finally, many Iraqi refugees in Egypt are unaware that resettlement assistance is available through UNHCR.³⁸ As a result, only 11,000 Iraqi refugees have registered with UNHCR to date, and thus, the vast majority of Iraqi refugees there are struggling to live without any humanitarian assistance.³⁹

B The U.S. Response Thus Far: Looking at the Actions of Both the Bush & Obama Presidential Administrations

In February 2007, the U.S. Department of State announced the creation of the Iraq Refugee and Internally Displaced Persons Task Force ("Task Force").⁴⁰ The purpose of the Task Force was to assist the capabilities of other national governments, the United Nations, and non-governmental organizations in providing assistance to internally displaced Iraqis as well as Iraqi refugees.⁴¹ The Task Force coordinated U.S. efforts with these entities, providing funding of UNHCR's humanitarian assistance efforts.⁴² The U.S. Task Force pledged $18 million in funding for the UNHCR in its...