In the past few weeks, thousands of Afghans were forced from their homes as the Taliban’s rapid advance through the country culminated in the group seizing the capital city of Kabul. The decades-long conflict in Afghanistan has killed hundreds of thousands of civilians and displaced millions more. Now, the Taliban’s return to power is prompting a national humanitarian crisis with global dimensions.
States both near and far have faced pressure to respond to the mounting crisis by creating safe routes for Afghan refugees to travel abroad and claim asylum. The UN High Commissioner for Refugees, for instance, has called on UN member states to keep borders open and not to return any Afghan asylum seekers in their territories to Afghanistan. In short, states are being asked to make good on their commitments under international law.
Since the entry into force of the 1951 Convention Relating to the Status of Refugees, governments of states that have ratified the convention are under obligation to provide protection to any persons fleeing persecution on the basis of their nationality, race, ethnicity, religion, and other characteristics. At the heart of international refugee law is the principle of non-refoulement. According to this principle, states are prohibited from turning asylum seekers away at borders and from returning anyone to a state where they might face persecution, including torture, sexual violence, and other forms of inhuman or degrading treatment.
While international obligations to provide a safe haven for refugees are longstanding, so too are attempts by states to circumvent their obligations under international law. One such tactic is the use of offshore processing and detention centres in third countries, which UK Defence Secretary Ben Wallace recently announced would be launched to receive asylum seekers from Afghanistan.
The use of offshore processing centres to receive refugees raises a number of political, legal, and ethical issues. In the first instance, Wallace’s announcement was rebuffed by the Turkish government, one of the third countries touted as a location for a centre, which claimed that no such request had been made by the UK government. Even where third states do agree to hosting refugees seeking asylum in the UK, such agreements are not necessarily consistent with the law or with basic standards of humanity and decency.
Experience from Australia’s use of processing centres illustrates this in a particularly harrowing way. Since 2013, the Australian government has pursued a policy of intercepting vessels transporting asylum seekers to its shores and forcibly transferring them to third states such as Nauru and Papua New Guinea. Asylum seekers are held in conditions that human rights bodies have described as inhumane, with reports of abuse, neglect, lack of due process, and isolation. Australia’s breaches of international law are of such severity that it has been suggested that the International Criminal Court may open an investigation into conditions at the centres.
If the UK government follows Australia’s lead in concluding safe third country agreements, it risks breaching its obligations under international law in several ways. Firstly, there is the issue of conditions in the third countries where the processing centres are located. Some of the states suggested as locations for the centres, such as Turkey and Morocco, are not parties to the 1951 Refugee Convention and thus do not owe comparable obligations to refugees under the international treaty. This means that the UK risks falling short of its own obligations by proxy. Secondly, asylum seekers dispatched to offshore centres may suffer violations of their rights to a fair trial and to due process. Such rights, guaranteed by international instruments such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights, are essential in the refugee status determination process. Without such rights, asylum seekers do not have a meaningful opportunity to present their cases for receiving international protection, have no access to legal advice, and find themselves made even more vulnerable to human rights violations. The level of scrutiny afforded to conditions and rights protection in processing centres is often minimal, with governments hoping to wash their hands of their duties towards refugees by entering such agreements. The principle of non-refoulement would certainly be engaged by a policy that turns an asylum seeker away from the UK and towards an offshore processing centre where they risk abuse and human rights violations.
As it stands, countries across the world are grappling with the question of how to respond to the humanitarian crisis in Afghanistan. However the UK government chooses to respond, it must ensure that humanity, compassion, and legality guide policy. The use of offshore processing centres runs counter to this.
Claudia is an LLM candidate in Public International Law at the London School of Economics. Currently working at a genocide education and prevention charity, her key interests are in international criminal law and post-conflict justice. Claudia is also a Trustee of a legal advice charity and a Fellow of the human rights charity Rene Cassin.