SHARBAT Gula became the world’s most famous refugee after a photograph of her appeared on the cover of a 1985 issue of the National Geographic. She made headlines again recently when she was arrested by the FIA for living in Pakistan illegally on forged papers. She was charged under Section 14 of the Foreigner’s Act and for violating the Pakistan Penal Code, the Prevention of Corruption Act and the Nadra Ordinance. She was slapped with a fine of Rs110,000 and was ‘fortunate’ enough to be jailed for only 15 days and not for years, as provided for under the law.
What is highly disconcerting, however, is that she was deported as soon as she was released. Sharbat Gula suffers from hepatitis C. She is also a widow and a mother of four children; she deserved to remain in Pakistan on health and humanitarian grounds.
Desperation, abject poverty and the lack of better opportunities have driven many Afghan refugees to take residence in Pakistan illegally. In other words, they have no other choice, and it goes against the core norms of international human rights for Pakistan to punish these individuals for violating its immigration laws. Amnesty International also recently voiced this sentiment in a press release that further tarnished Pakistan’s reputation for its recent treatment of refugees.
Following the APS attacks, Pakistan has hardened its stance on Afghan refugees. Scores have been subjected to harassment and torture in violation of the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Elimination of all Forms of Discrimination Against Women. These conventions, which Pakistan has ratified, make no distinctions between the treatment of citizens, refugees or those who are illegally present in a country.
Pakistan must have a more long-term and inclusive strategy to deal with Afghan refugees.
While it is true that Pakistan is not a party to the 1954 Refugee Convention or its Optional Protocol of 1967, it is bound under customary international law to fully comply with the principle of non-refoulement, under which no state can “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened”. In addition, under Article 3 of the ratified CAT, Pakistan cannot “expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”. These dangers are particularly acute for Afghan women living in Pakistan, such as Sharbat Gula .
Under a tripartite agreement with Afghanistan and the UNHCR, Pakistan continues to host millions of Afghan refugees who are to be repatriated (by March 2017) under the National Action Plan. This mission, however, seems highly unlikely and Pakistan must have a more long-term and inclusive strategy to deal with Afghan refugees within its borders. This is keeping in mind that Pakistan has historically accepted Afghan refugees with an open heart.
State policy in Pakistan has also worked against the rights of Afghan and Bengali refugees residing therein. While Kashmiri refugees can easily attain Pakistani citizenship, Bengali and Afghan refugees cannot, even if they are born in Pakistan. By treating refugees from different ethnic groups differently, Pakistan is directly violating one of the cardinal provisions of the Universal Declaration of Human Rights, which deals with the right to non-discrimination. Under Article 2 of the UDHR, “Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Many Pakistanis criticise European states for their discriminatory immigration policies towards ethnic groups originally belonging to Muslim nations or coming from the global south. Germany has been particularly condemned for its biased treatment of German Turks in comparison to the better treatment meted out to minorities of European descent, such as the Swiss.
Indeed, earlier this year, Amnesty International highlighted the plight of Pakistani refugees and asylum seekers when they were subjected to arbitrary and unlawful group detention in detention camps on the Greek island of Lesbos. Most Pakistan migrants leave the country out of desperation — to escape political violence and religious persecution, or to escape poverty.
Last year, when European nations summarily started deporting Pakistani refugees, asylums seekers and migrants in hoards, in violation of international human rights law, Pakistan rightfully complained. Interior Minister Chaudhry Nisar Khan displayed intense anger and even specified that airlines repatriating deportees without Pakistan’s permission would be penalised. Pakistan cannot have double standards; we must practise what we preach.
Even from a diplomatic perspective, it was unwise for Pakistan to deport Sharbat Gula. The hawkish BJP government in India is currently attempting to isolate Pakistan in the international community, projecting Pakistan as a terrorist state that is both repressive and cruel. Pakistan should actively refute this narrative, but it must also cement its relations with Afghanistan and Bangladesh, which are becoming closer allies of India. The withdrawal of these states from the 19th Saarc conference in Pakistan, after India refused to attend, is testament to this fact.
To mend its relations with these two important Muslim states, Pakistan must treat hardworking and vulnerable Afghan and Bengali refugees and stateless persons with dignity and respect. The political establishment in Islamabad should have thus offered a gesture of goodwill by not just paying for Sharbat Gula’s healthcare costs while she underwent treatment, but also allowing her to reside in Pakistan with her family with dignity. This would have not only garnered respect from Afghanistan, but also created recognition within the international community that Pakistan takes its international human rights obligations seriously.
The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Published in Dawn, November 14th, 2016
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