Written by Gautam Jha & Pankaj Kumar
There are instances where Refugee Status is being granted by the UNHCR, the UN Refugee Agency in India to the Asylum Seekers in spite of having Exclusion Triggers (Risk Profile) as their Refugee Status Determination Process is based upon “balance of probability and reasonable possibility”. There are countries such as Iraq and Syria where it is mandatory for every citizen to serve in the Military. In countries such as Iraq, Syria and Afghanistan there are cases wherein forced recruitment by the Anti Government Entities (AGEs) such as IS and Taliban is prevalent. In these circumstances, there is a reasonable likelihood that the persons from these countries seeking asylum in India have either served the Military and/or were actively engaged with the non-state actors and may have committed war crimes both international and non international in nature, crime against humanity and crime against peace. As such they do not deserve International protection and their profiles must be excluded from the Refugee Status Determination Process. In fact, once determined they should be either deported to their country of origin or they should be extradited to their country of origin. These Risk Profiles may pose threats to the internal security of India. At present, there is no exclusive Exclusion Unit with UNHCR that may share and deal with these sensitive cases in collaboration with the Ministry of Home Affairs, Indian Intelligence and the Interpol.
The University of Kerala received a record number of 1,042 applications from foreign students, mostly from Iraq, Syria and Afghanistan in 2021. A majority of the students enrolled with the University of Kerala must have been registered with the UNHCR as an Asylum seeker, pending their Refugee Status Determination Interviews. The University of Kerala has admitted them without adequate background check considering their risk profile. In the absence of the Exclusion Unit in the UNHCR and lack of their cooperation with the Ministry of Home affairs Indian Intelligence and the Interpol, it is less likely that the Refugee Agency in India will share the confidential Information of these students hiding behind the cloaks of their confidentiality clause.
It is pertinent to mention here that recently Kerala is found to be a hunting ground for the ISIS terrorists. There is a sizeable ISIS Terrorists in the Indian states of Kerala, Karnataka and the Lakshadweep Islands. The Central Government has also received credible Information of a module to radicalise individuals in these areas.
In the context of Iraqi Asylum seekers in India, who are men of fighting age, the risk profile includes, Members of the Baath regime, such as by Baath party members of a certain rank or level, intelligence services, members of the military, judicial and administrative institutions; Insurgent and/or extremist groups (e.g. ISIL, Al-Qaeda); Members of ISF and Peshmerga, intelligence services (e.g., Asayish) and other security actors Members of PMU; Members of Sahwa; Individuals involved in tribal feuds etc. Crimes committed by Iraqi outside of Iraq (e.g. participation in ISIL’s international activities, participation in the activities of Iraqi militia in the conflict in Syria), could also lead to exclusion considerations. Relevant situations, which should be considered in relation to this exclusion ground include, for example: Iraq – Iran war (1980 – 1988): international armed conflict; Al-Anfal military campaign (1987 – 1988); Invasion of Kuwait (1990 – 1991): international armed conflict; and subsequent uprising; Kurdish civil war (1995 – 1998): non-international armed conflict; Invasion of Iraq (2003): international armed conflict; Armed conflict between ISF and insurgent groups as from 2004: non-international armed conflict; Sectarian conflict/civil war (post 2003): non-international armed conflict; ISIL conflict (2014 – ongoing): non-international armed conflict; Turkey – Iraq conflict (2019 – ongoing): international armed conflict.
In the context of Syrian Asylum Seekers in India, the risk profile are men of fighting age who have been involved in the Syrian intervention in the Lebanese civil war and presence in Lebanon (1976- 2005); The Muslim Brotherhood Uprising in Syria (1979-1982) which comprised the Hama Massacre (February 1982); Current conflicts (2011-ongoing); Criminal Activity etc. In terms of qualifying the relevant acts as war crimes, the following classification of some of the conflicts taking place in Syria may be relevant: non-international armed conflict between GoS and various anti-GoS armed groups, most notably HTS, SNA and ISIL; international armed conflict between the US-led coalition against ISIL and GoS (due to its military intervention in Syria without the consent of the GoS); international armed conflict between Syria and Turkey, as the GoS has not accepted Turkish presence on its territory; military confrontations between Syrian and Turkish armed forces also took place during the conflict; international armed conflict between Syria and Israel, who has been conducting air strikes on Iranian targets in Syria without the consent of the GoS; non-international armed conflict between Turkey and the YPG forces.
In the context of Asylum seekers from Afghanistan in India, and more particularly after recent withdrawal of the troops from Afghanistan, the non exhaustive risk profiles are persons engaged in The ‘Saur’ Revolution of 1978, subsequent purges and the 1979 crackdown of the uprising; Soviet Union invasion (1979) and the armed conflict between the Afghan government (supported by Soviet troops) and the ‘mujahideen’ (e.g., secret services of the PDPA regime, commanders or fighters from the anti-Soviet jihad tanzeem) (1979 – 1992); Afghan ‘Civil War’ (1992 – 1996); Taliban regime and conflict between the Taliban and the Northern Alliance (1996 – 2001); US-led military operation and Taliban-led insurgency against the Afghan government (2001 – onwards); etc. Afghan nationals have also been involved in conflicts outside Afghanistan, such as via the Fatemiyoun Brigade in Syria, which may be of relevance.
Given the grave consequences of admitting Risk Profiles in India as Refugee, it is essential that Rigorous Procedural safeguards be built to exclude these Risk Profiles from International Protection. Specialised Exclusion unit within the Ministry of Home Affairs should be set up to deal with Exclusion Cases, because UNHCR hiding behind their cloaks of confidentiality has failed to share vital and sensitive information to the Government of India and the Indian Intelligence. India cannot be a soft state anymore with the changing situation in Afghanistan, Syria and Iraq. With the withdrawal of the US troops in Afghanistan, many persons from Afghanistan will seek Asylum in India and the MHA must handle the risk profiles with utmost cautiousness.
(Gautam Jha is Advocate On Record, Supreme Court of India and Pankaj Kumar is Former Expert on Mission to the United Nations High Commissioner for the Refugees and Advocate, Supreme Court of India)
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