Turkey’s Refugee Law as Applied to Iraqis

By Amy L. Beam, Ed.D:

Mass Exodus of Iraqi Yazidis to Turkey

On August 3, 2014, the Islamic State (also referred to as Daesh or ISIS) attacked the Yazidis’ (also spelled Ezidis’) homeland in Shengal, Iraq, on the northwest border with Syria.   This is the 74th documented massacre against the Yazidis who are neither Muslim nor Christian.  It was the worst in history because their ancestral homeland has been destroyed.  They speak the same Kurdish language as the Kurds and share cultural similarities but do not refer to themselves as Kurdish.

ISIS brutalized, killed, kidnapped, raped, and forced Yazidis to convert to Islam or be killed.    The most horrific stories and videos of atrocities have emerged including beheadings and mass executions.   The Yazidis lost their homes, businesses, gold, cars, friends, and life.  Yazidis in Turkey refuse to return to Shengal where their houses have been looted then destroyed by ISIS.

An estimated 400,000 Yazidis fled.  More than 200,000 Yazidis took refuge in Kurdistan, northern Iraq where they are now internally displaced persons (IDPs).  Between 20,000 and 30,000 Iraqi Yazidis fled to southeast Turkey, most without passports.  They are living in a dozen refugee camps and remote villages run by Kurdish volunteers and donations.  Except for the 3,000 Yazidis in Midyat camp run by the government, the Turkish government refuses to give assistance to the Yazidis.

Turkish Government Refusal of Aid for Iraqi Yazidis

In Diyarbakir Fidanlik Park camp, the Kurdish volunteer camp manager disparagingly explains the government donated 100 tents, 500 blankets, and 500 toys.  The camp has 4,000 Yazidis.  Other camps were not as “lucky” and received no aid.

The refusal of assistance is another example of the Turkish government’s attempt to crush the Kurdish powerbase and all efforts at solidarity, self-sufficiency, and autonomy.  The fact that the Kurds have succeeded in sheltering over 20,000 refugees without one dollar in aid from the Turkish government is a testament to the Kurds’ ability at self-governance.   It is nothing short of an amazing feat.

Turkey’s law places responsibility for refugee centers with the governors of the provinces.  They may assign this responsibility or contract it out to another agency or group.  The governors of Sirnak, Batman, Diyarbakir, and Mardin provinces have refused to give authority to the Kurdish-run municipalities who are managing the camps with Kurdish volunteers.  If Ankara cannot take control of the camps and replace Kurdish municipality guards with Turkish soldiers to run them, they will not support them financially.

Turkey does not want refugees.  In September, Justice and Development Party (AKP) Kirikkale deputy Besir Atalay told journalists that Turkey would prefer the Yezidi community stay outside of the country instead of coming to Turkey.  To this end,  Turkey’s Disaster and Emergency Management Directorate (AFAD) sent humanitarian aid to Iraq to set up refugee tent camps in Zakho and Duhok in Kurdistan, Iraq.

1951 Convention on Refugees and 1967 Protocol

Turkey is among 144 countries that signed the 1951 Convention on Refugees.  The Convention was intended to address refugee needs of Europeans after WWII.  It applied only to refugees from European countries.  One clause allowed each country to limit itself to accept refugees from Europe or to place no geographical restrictions on the countries from which it would accept refugees.  Nearly every country limited itself to European countries.  So in 1967, the Convention was modified to include the 1967 Protocol which removed geographical limitations.

There was one loophole, however.  A country could add an exception clause.  Turkey was one of only a few countries to maintain its exception, refusing refugees from all non-European countries.   Since it is unlikely that refugees from Europe will seek asylum in Turkey, and since people from all other countries are denied asylum under Turkey’s law, then what exactly did Turkey agree to when signing the 1951 Convention and the 1967 Protocol?

The Convention requires that any signatory country must provide emergency and temporary protection to foreigners who cannot return to the country from which they have been forced to leave in masses.   Turkey’s adherence to the Convention allows people to cross its borders if fleeing danger or death in their own country.  A bordering country is required to let them enter without documentation.

Iraq is on Turkey’s southern border.  Thus, when the Iraqi Yazidis crossed into Turkey, Turkey was obligated to allow them in without passports.  One cannot say they entered illegally.  In September, Turkey once again began bombarding and tear-gassing the mountainous Roboski border to stop the stream of refugees.

Turkey’s 2013 Law on Foreigners and International Protection

Under Turkey’s 2013 Law on Foreigners and International Protection, Turkey has three types of refugee status falling under its obligation to provide “international protection”.   A “refugee” is one who is coming from a European country, the only countries from which Turkey accepts refugees.  A “conditional refugee” is coming from a non-European country, which describes the Iraqi Yazidis.  When the dangerous condition which forced them to flee ceases to exist, they must leave Turkey.

This explains why camp managers and Kurdish party leaders say “When it is safe to return,” Yazidis will go back to Iraq.   However, after 74 massacres, no Yazidis feel it will ever again be safe to live surrounded by Arab Muslims.

Article 91(1): Temporary protection may be provided to foreigners who, having been forced to leave their country and cannot return to the country they left, have arrived at or crossed the borders of Turkey in masses seeking emergency and temporary protection.

“Temporary protection” is different than “international protection”.  Implementation of temporary protection, according to Article 91(2) shall be governed by a regulation to be issued by the Council of Ministers.

Non-refoulement: not to be forced to return to danger

Both the 1951 Convention and Turkey’s law, define the concept of “Non-refoulement” as follows:

Article 4(1): No one who falls under the scope of this Law shall be returned to a place where he or she may be subject to torture, inhuman or degrading punishment or treatment, or where his or her life or freedom may be under threat on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

This issue of non-refoulement is sure to be a point of legal debate if and when Turkey decides to send the Yazidis back to Iraq.  Ten reason why Yazidis refuse to return to Shingal have previously been described by this writer and provide the basis for which countries should grant asylum to Yazidis.

Under Turkey’s law it is not necessary that Shengal, from which Yazidis fled, becomes safe for their return.  If there is any place within Iraq that is deemed safe by Turkey, such as Kurdistan, northern Iraq, then according to Article 78(4), Turkey may deport the Iraqi Yazidis back to Iraq.  This leaves the refugees in a continual state of limbo and fear of deportation in the future.

Article 78(4): It may be decided on that the applicant is not in need of international protection in case protection against the risk of persecution or serious harm can be provided in a certain region of the country of citizenship or previous country of residence, and the applicant can safely travel to and settle in that region.

Iraqis Issued ID Cards in Turkey

Most Iraqis entered Turkey on foot over the mountain without passports.  They would have been entitled to apply for the status of a “stateless person,” i.e., one who is without any documents to prove his or her nationality.   After being granted a stateless person status, such persons can apply for long-term residency in Turkey, followed by full citizenship.

Before Iraqis could start applying for stateless person status, within two months of entering Turkey, most Iraqi refugees were locally fingerprinted and issued plastic identify cards by the Governor’s offices in the four provinces of Sirnak, Batman, Mardin, and Diyarbakir.  They were not required to show any documentation.

Their ID card includes the following basic information:  photo, name, date of birth, parents’ names, number of people in family, nationality of Iraq, place of registration, and an ID number.  There is no title nor explanation on the card as to what status is granted.  There is no expiry date.  With these identity cards, Yazidis are entitled to travel anywhere in Turkey and to work.  According to Article 76(4) this identity card shall substitute for a residence permit.

The Path To Long-term Residency and Citizenship is Blocked

There is one major caveat.  According to

Article 42(2): Those who are granted refugee status, conditional refugee status, those benefiting from subsidiary protection, holders of humanitarian residence permits and those who are granted temporary protection shall not be entitled to transit to a long term residence permit.

So regardless of whether these mysteriously non-descriptive identity cards grant “conditional refugee” status or mere “temporary protection,” Article 42 clearly blocks the road to permanent residency or citizenship in Turkey for Iraqi Yazidis.   Turkey does not want any types of refugees to settle permanently and become happy, productive citizens.

Thus, if the Iraqi Yazidis cannot return to Iraq and cannot stay permanently in Turkey, they are left only with the option to go forward.  Article 62 states a conditional refugee shall be allowed to reside in Turkey only until he or she is resettled to a third country. 

Article 62(1): A person who as a result of events occurring outside European countries and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it shall be recognized as a conditional refugee following the status determination procedures. A conditional refugee shall be allowed to reside in Turkey until he or she is resettled to a third country.

United Nations High Commission on Refugees Must Resettle Iraqi Yazidis

The legal responsibility for resettling the Iraqi Yazidis to a third country falls to the United Nations High Commission on Refugees (UNHCR).    Asylum Seekers and Migrants (ASAM) is the implementing partner for the United Nations High Commission on Refugees (UNHCR ) in Ankara, Turkey.  ASAM is located at EMEK Mah 8. Cad. 29; Sok no. 3706000, Ankara;  tel: 0312 212 6012/3.

In small numbers Yazidis began making the bus trip to Ankara to register the list of their family members with UNHCR.  By September, 2014, the waiting period between registration and interview appointment was five months.  By late October it was 15 months.  As of this writing, Yazidis are reporting their interview date is 7 to 12 years in the future.

This unreasonably long waiting period leaves Yazidis living in limbo for years.  The law requiring them to leave Turkey removes all incentive for integrating into the Turkish or Kurdish culture and starting their own businesses, building a house, or buying an apartment.  Why would one build a business if it is foreordained that he will have to abandon it, just as Yazidis abandoned their businesses when they fled Shingal?

Kurds Want Yazidis To Stay in Turkey

The Kurds in Turkey who are supporting the Yazidi camps do not want the Yazidis to go to Europe or beyond.  They refer to the Yazidis as their Kurdish brothers and sisters.  Kurds want Yazidis to stay in Turkey, be happy, and increase the strength of Kurdish solidarity.  This is a noble position in opposition to government policy.  The Kurds are determined to save the Yazidis and keep them in Turkey.

North Kurdistan (eastern Turkey) is one of the most beautiful spots on earth.  It has towering mountains, clean water and air, rivers, and wide open plains untarnished by billboards.  There are no franchises, no big corporations, no Monsanto farms.

Kurds are secular and democratic with the DBP Kurdish party running co-mayors for election: one man and one woman.  It is a model world-wide for women’s political equality.  The Kurdish family strength and hospitality is the best in the world.  It is an idyllic place to live, marred only by the constant occupation by the Turkish military and police tanks with gun turrets in town centers provoking the Kurdish population.

The Kurdish Party is not only saving the Yazidis from the Islamic State, but also from the Turkish government.  Kurds are determined that Yazidis can remain in Turkey, regardless of the Turkish law on refugees that states they must return to their country of origin or resettle in a third country.

Turkish Government Refuses to Support Iraqi Yazidi Refugee Camps

The Turkish government wants to force the Kurds to turn over control of the camps by freezing and starving them out.  The Kurds are unlikely to allow this to happen.  it was the Worker’s Kurdistan Party (PKK) that opened the escape route from Shingal Mountain to Syria for the Yazidis.  From Syria they were guided by the PKK to Duhok then Zakho on the border of Turkey, then over the mountain to Roboski, Turkey.

The PKK has been on the U.S. and Turkey’s terrorist list for years.   The world is finally becoming aware that it is the PKK who saved the Yazidis and provided them with humanitarian aid.  It is the PKK and their sister organization, YPG in Iraq and Syria, who are fighting the Islamic State.  Therefore, Turkey will not support the refugee camps.  It would rather starve the Yazidis than support a Kurdish humanitarian effort.

According to Article 89 anyone under “international protection” (this includes conditional refugees) must be provided with education, social services, and medical services if he or she cannot afford medical services.  The Turkish government is not providing education or social services.  Either it is shirking its legal responsibility or it is avoiding responsibility through a game of linguistics by providing only “temporary protection,” not “international protection.”

Kurdish leaders of the refugee camps do not recognize legitimacy of the Turkish law on refugees.  The camps are guarded by local municipality guards.  Central government police and military soldiers are not permitted into the camps.  Kurds insist that Yazidis will remain in Turkey.

The fact that Turkey is not providing financial support, education, nor social services for the Iraqi Yazidis means international aid that by-passes the government is urgently needed.

How Turkey Can Save the Yazidis and Make Peace with Kurds

Turkey’s law includes one way to save the Yazidis and allow them to remain in Turkey.  It requires political action.  Article 43(2) gives the Migration Policies Board the authority to grant long-term residence permits to Iraqi Yazidis.

Article 43(2): Foreigners, for whom granting of a long term residence permit is considered appropriate due to fulfillment of criteria determined by the Migration Policies Board, shall solely be subject to subparagraph (d) (Not to constitute a threat to public order or security.)

This means if the person does not pose a threat, the Migration Policies Board may disregard conditions in the 2013 Law on Foreigners and International Protection and establish other criteria for long-term residency permits which can lead to citizenship.

The Migration Policies Board is governed by Article 105.  It operates under the Minister of Interior and is  comprised of Undersecretaries of the Ministries of

  • Family and Social Policies,
  • European Union Affairs,
  • Labour and Social Security,
  • Foreign Affairs,
  • Interior,
  • Culture and Tourism,
  • Finance,
  • National Education,
  • Health,
  • Transportation,
  • Maritime Affairs and Communication; as well as
  • the President of the Presidency of Turks Abroad and Relative Societies and
  • the General Director for Migration Management.

The Board is granted the right and responsibility to identify the methods and measures to be applied in the event of mass influx into Turkey and to identify terms and conditions for long-term residency permits.

Let us hope that both the Turkish government and the Kurdish party negotiate a way to allow Iraqi Yazidis now in Turkey to remain in Turkey with possibility of long-term residency leading to citizenship.   For those who want to leave, the countries of the world need to support their transportation and resettlement costs and accept most of them without documentation.

More Information about Yazidi Refugees:

For Amy Beam’s other reporting about the Yazidis read the following links:

Dr. Amy L. Beam promotes tourism in eastern Turkey (North Kurdistan) and writes in support of Kurdish and Ezidi human rights.  Read her stories atKurdistanTribune.com.  She is writing a book, “Love and Betrayal in Kurdistan.”   Follow her on Twitter @amybeam or contact her at amybeam@yahoo.com or 240-696-1905 (U.S.) or 0090 537 502 6683 (Turkey).

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