THE RISE OF THE TALIBAN AND THE REFUGEE RIGHTS CRISIS

By: Naman Priyadarshi of Symbiosis Law School, Hyderabad and Christo Sabu of Symbiosis Law School, Hyderabad

The Escalating Humanitarian Crisis in Afghanistan

Nearly after 20 years of war, the Taliban, a Sunni Islamist Organization, swept to victory in Afghanistan. It came after the international community and the US forces evacuated their partners and soldiers from the war-torn country. It is being considered as one of the most dramatic and controversial pullouts as it has brought an end to the uneasy peace in the country. 

August 15, 2021, would perhaps be the darkest day in the history of Afghanistan as it shattered the hopes of millions when the militant group seized control over the capital city of Kabul. Afghan President, Ashraf Ghani had to abandon the presidential palace and leave the country amidst the bloodshed.

His sudden departure was largely criticized and there were widespread allegations of corruption against him as there were claims that he had eloped with millions of dollars, belonging to the government treasury.

Apart from Kabul, the Taliban managed to capture more than ten other capitals. The uncertainty prevailing over the future of the country and the political turmoil may greatly exacerbate or modestly ameliorate the current economic and humanitarian crises.

History of war

Four decades of war in the country have produced catastrophic results in terms of the damage caused. According to Brown University research, the Afghan security forces have suffered around 70,000 casualties.

The number of noncombatants and militants killed is estimated to be 51,000 each. Since 2001, more than 3,500 coalition soldiers have been killed. Estimates show that around five million Afghans have been displaced since 2012. According to the UN, Afghanistan has the third-largest expatriate population in the world.

UNHRC on Afghanistan crisis

The United Nations Human Rights Council has expressed its disappointment over the violations and abuses of human rights in the country and has further emphasized the need for carrying out detailed investigations into reports of such violations.

Women in Afghanistan

The women in Afghanistan have been the most affected community under the Taliban Regime. There has been a drastic transition as the society in which women once played a fundamental role in the political, health,  educational, and sports sectors have been substituted by one where women get beaten up for not wearing the customary bourka, that covers their bodies from head to toe.

Furthermore, working women have been asked to stay at home and girls have been barred from attending secondary education. Such inhuman governance and discrimination constitute an insult to the esteem and worth of women in Afghanistan and humanity as a whole.

Status of Refugees in India

The Problematic issue in Afghanistan is marked by the emergence of new forms of identity and different politics. The civilians in their own country have become aliens to land. Huge loss of democratic rights and gross human violations has led citizens to migrate from Afghanistan to the neighboring countries. Refugees from Afghanistan are now putting pressure upon India which already has refugees from other countries. “India has welcomed refugees in the past, and at present, nearly 300,000 people here are categorized as refugees.” 

UNHRC report on India

According to UNHCR, “India is home to 2.44 lakh refugees and asylum seekers.” India has 2,03,235 refugees which belong to Tibet and Sri Lanka. 40,859 are refugees and other asylum seekers which belong to different nationalities.

India also comprises of Immigrants, around half a million, from Nepal. Due to the Pandemic, many immigrants from Nepal returned to the country but, now, after diminishing cases of Covid, Nepali Migrant workers have started returning to India in search of jobs.

The Police Inspector of the Armed police force stated, “9,000 individuals have crossed the border to India in search for jobs”.

Condition in times of Covid

Countries like Nepal and Bangladesh have been gravely affected by the pandemic, which led to huge loss of jobs, especially migrants that worked in India and were dependent upon the same for safe livelihood. India also has “the single largest bilateral stock” of international migrants residing in the south.

The actual figures show that 3.2 million Bangladeshi immigrants lived and worked in India for their survival, as reported by the Population facts report under UN, Department of Economic and Social Affairs.

This makes the largest share of migrants in India.  Being an alien to land, Refugees in India face myriad challenges, which eventually lead to hampering of developments in their life and most of them remain poor throughout their life.

One of the recent struggles that migrants are facing is the passing of the Citizenship Amendment Act, 2019. 

Immediate Need for Refugee Policy in India

According to Amnesty International, “A refugee is someone who faces risks to his safety and life so great that they felt they had no choice but to leave and seek safety outside their country because their government cannot or will not protect them from those dangers.”

This definition can be related to the condition of Afghanistan where citizens had to leave their place, migrate to different countries and live life as refugees. Now, developed countries must provide basic amenities and shelter.

Such basic amenities can only be full-filled in the presence of a proper set of laws that govern exclusively refugees in India.

In India, we don’t have any proper rules and regulations to govern the refugees. UN had introduced the UN Refugee Convention or let’s say, The Geneva Convention of 28 July 1951.

The Geneva Convention

It is a multilateral treaty that comprises the definition of refugee and a set of rights of individuals who are granted asylum or people who do not qualify as refugees, such as war criminals. One special highlight of this convention is non-refoulment, which guarantees that a refugee should not be sent to a country where they face a serious threat to life.

There is also the UN 1967 Protocol related to refugee status. Both, the 1951 Refugee Convention and its 1967 Protocol are key legal documents concerning refugees. However, India is one of the few countries that signed neither of the two treaties.

Position of India

India governs refugees via the Foreigners Act 1946 and the Passport Act, 1920. These Acts empower the Indian government to hold a person until they are deported back to their place of origin. It is the responsibility of the accused to prove whether he is a foreigner or not.

It is required for anybody entering India by ship, land, or air to have a passport, and it also forbids the admission of anyone who does not have one. Trespassers might face imprisonment for up to five years or a fine of up to Rs 50,000.

Lastly, refugees can also be governed according to Citizenship (Amendment) Act, 2019. Though the act faced massive disturbances by the pupil of the countries, it is still valid in India and can be used to govern any refugee under it.

 Refugee Conventions and International Framework

Refugees were on the fringes of the domestic and international legal systems before the 1951 Refugee Convention was approved. It is a multilateral agreement relating to the status of refugees that was enforced by world bodies at the special United Nations Conference held on July 28, 1951.

It was impelled by the displacement of more than 60 million people during the Second World War. It also laid down the criteria for being termed as a refugee and the legal obligations upon the states to protect them.

In 1967, an international treaty relating to the status of refugees, also known as the 1967 Protocol was signed by 146 countries. This was done to include the refugees who didn’t fall within the ambit of the 1951 Refugee Convention, since new refugee situations had arisen.

The 1967 Protocol removed the Refugee Convention's temporal and geographical limitations, making it internationally applicable.

United Nations High Commissioner for Refugees (UNHCR), the UN refugee agency, is an international organization devoted to protecting rights, saving lives, and building a better future for refugees, forcibly displaced individuals, and stateless communities.

It serves as the guardian of the 1951 Refugee Convention and the 1967 Protocol. Thus, it strives to ensure that the rights of the refugees are respected and safeguarded worldwide.

According to the Refugee Convention, a refugee is a person who is:

• Residing outside the country of their origin or habitual existence,
• has a well-founded fear of being victimized due to his/her religion, race, nationality, member of a particular social group or political opinion, and is
• unwilling or unable to return

The International Bill of Human Rights, which comprised the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, served as a major source of inspiration for the convention.

As per international law, any person who crosses the territorial borders is considered to be an asylum seeker. Article 14 of UDHR establishes a person’s right to seek asylum.

Refugees are generally thought of as victims of war and strife, but according to the declaration, they must be seen as members of the world community whose fundamental rights are being violated, often owing to prejudice, and who are unable to seek protection from their government.

Conclusion

What will happen next in Afghanistan; It’s not clear. Taliban wants to form an “inclusive, Islamic government” with other factions.

They have pledged for a better environment and have encouraged women to join their government. But many Afghans doubt the intent of the Taliban and fear that their inclusive rule is a false hope. It will be nothing but a violent and monarchical form of government.

On the other hand, countries have started to invest in ensuring basic rights and a secured future for international migrants. Now, they need to guarantee migrants the same equal opportunities as nationals.