Master’s Thesis International and European Law: Public International Law Date of submission: 20 July 2020
The Voluntary Return of Syrian Refugees in Turkey to a
Turkish Safe Zone in Northeast Syria
Legal framework and implications
Salomé Friedli sa.friedli@gmail.com Student no.: 12808377
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Abstract
This thesis aims at determining the compliance with international law of Turkey’s plan to facilitate the voluntary repatriation of Syrian refugees to a Turkish-controlled safe zone in northeast Syria. It analyses the problem from a normative perspective, on two different levels: voluntary repatriation as a durable solution, and Turkey’s obligations towards refugees returning to a safe zone that it controls on Syrian territory.
Accordingly, the first section delimitates Turkey’s obligations towards Syrian refugees in Turkey and within the safe zone and concludes that, even though Syrian refugees in Turkey do not benefit from the guarantees of the 1951 Refugee Convention due to Turkey’s geographical limitation, they are protected from refoulement, and Turkey bears human rights obligations towards people within its jurisdiction, including in the territories it controls in Syria. In the second part of the analysis, this thesis takes the solution of voluntary repatriation, which pursuit falls within UNHCR mandate, to compare it to Turkey’s claims. It concludes that Turkish statements are misleading, as the planned move does not correspond to the durable solution of voluntary repatriation. The last part examines the consequences of the state of occupation on the rights of returnees and concludes that voluntariness is a central requirement for any returns to Syrian territory, even within Turkey’s jurisdiction. Refugees returning to a safe zone controlled by Turkey need to be fully informed of the fragility and transitory nature of occupation to make a free and informed decision when it comes to exercising their right to return.
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List of abbreviations
1951 Convention – 1951 Convention Relating to the Status of Refugees DGMM – Directorate General of Migration Management (Turkey) ECHR – European Convention on Human Rights
ECtHR – European Court of Human Rights
LFIP – Law No. 6458 of 2013 on Foreigners and International Protection (Turkey) TPR – Temporary Protection Regulation (Turkey)
ICCPR – International Covenant on Civil and Political Rights SDF – Syrian Democratic Forces
SNA – Syrian National Army
UNGA – United Nations General Assembly
UNHCR – United Nations High Commissioner for Refugees UNHRC – United Nations Human Rights Committee
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Table of Contents
1. INTRODUCTION ... 5
1.1. Context ... 5
1.2. Description of the research ... 8
1.3. Methodology ... 8
2. SYRIANS IN TURKEY AND TURKEY IN SYRIA ... 10
2.1. The Protection of Syrian Refugees in Turkey: Temporary Protection ... 10
2.2. The Safe Zone in Northeast Syria: Turkey’s Occupation and Obligations ... 12
3. VOLUNTARY REPATRIATION AS A DURABLE SOLUTION ... 16
3.1. Voluntariness ... 16
3.2. Safety, dignity and re-availment of protection ... 18
3.3. The right to return to one’s place of origin or former habitual residence ... 20
3.4. Sub-conclusion: missing actors ... 21
4. IMPLICATIONS OF A REPATRIATION TO THE SAFE ZONE ... 22
4.1. The rights of returning refugees ... 22
4.1.1. Non-refoulement and safe return ... 22
4.1.2. Non-refoulement and voluntariness ... 25
4.1.3. Freedom of movement and derived rights ... 26
4.2. The status of returning refugees ... 28
4.3. Implementation of the returns ... 30
5. CONCLUSION ... 31
5 1. INTRODUCTION
1.1. Context
As Syria and its people entered into the tenth year of a conflict that seems to see no end, Syrians continue to constitute the largest forcibly displaced population in the world1, and many of them have crossed international borders to seek refuge. Turkey currently hosts some 3.6 million registered Syrian refugees out of the 5.5 million hosted in the region2. The displacement caused by the ongoing conflict is far from coming to an end: between December 2019 and February 2020, close to 1 million of Syrians have fled their homes due to ongoing fighting in Idlib alone3. Refugee hosting countries have expressed their discontent towards the burden caused by the large number of refugees present on their territory, and pushing for their return, through aggressive campaigns, promotion of return and forcible returns breaching the principle of non-refoulement4. Turkey, in particular, states that it bears a special burden, hosting the largest number of Syrian refugees in the world5. In the past few years, it has begun to proactively encourage returns, facilitating ‘go-and-see’ visits to Syria, and encouraging Syrians refugee to sign voluntary return forms, encouragements that sometimes take the form of coercion6. The announcement by authorities of the relocation of refugees to their
province of registration has been accompanied by threat of deportation and the forcible return of some under the veil of voluntary repatriation7.
Turkey’s role in the Syrian crisis is multifold, as it is not only a host state but also an important actor of the conflict in Syria. Ankara launched three main
cross-1 According to data from the end of 2019, there are 13.2 million forcibly displaced Syrians, including
6.7millioninternationally displaced and 6.6 million refugees.. The second largest forcibly displaced population comes from Venezuela, with an estimated 4.5 million see: UNHCR, ‘Global Trends: Forced Displacement in 2019’ (2019) (‘Global Trends’) 8-9.
2 3,588,131 registered Syrian refugees according to UNHCR data on 12 March 2020,
<https://data2.unhcr.org/en/situations/syria> accessed 19 March 2020; 3’579’420 beneficiaries of
temporary protection according to the DGMM data by 22 May 2020, < https://en.goc.gov.tr/temporary-protection27> accessed 30 May 2020. Exact number can differ according to sources.
3 United Nations Office for the Coordination of Humanitarian Affairs (OCHA), ‘Syrian Arab Republic:
Recent Developments in Northwest Syria, Situation Report No 9’ (26 February 2020) .
4 On instances of refoulement in Jordan and Turkey, see e.g. Norwegian Refugee Council et al.,
‘Dangerous Ground: Syria’s Refugees Face an Uncertain Future’ (2018) 9. On Lebanon’s campagins pushing for return, see e.g. Jeff Crisp, ‘Repatriation principles under pressure’ (2019) Forced Migration Review N 62 <https://www.fmreview.org/return/crisp> accessed 19 March 2020.
5 UNHCR, ‘Global Trends’ (n 1), 18.
6 Zeynep Sahin Mencutek, ‘Encouraging Syrian Return: Turkey’s Fragmented Approach’ (2019) Forced
Migration Review N 62 <https://www.fmreview.org/return/sahinmencutek> accessed 19 March 2020.
7 BBC, ‘Syrian Migrants in Turkey Face Deadline to Leave Istanbul’,
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border operations targeting Kurdish forces in northern Syria8: Operation Euphrates
Shield (2016) and Operation Olive Branch (2018) in northwest Syria, and Operation Peace Spring (2019) in Northeast Syria. Turkey began its Operation Peace Spring on 9th October 2019, in a joint operation with the Syrian National Army (SNA)9 by attacking Kurdish positions10 notably in Tal Abyad and Ras Al-Ayn, two Syrian towns at the Turkish border11. The aim of the operation was to clear the zone of Kurdish presence and establish a safe zone to be used as a settlement area for the return of 1 million Syrian refugees12. President Erdogan’s plan to establish a safe zone where refugees could be resettled was announced at the United Nations General Assembly (UNGA) on 24th September 2019: according to the President, the 30 km wide by 480 km long ‘peace corridor’ would provide a resettlement place for 1 to 2 million refugees, and as many as 3 million if the zone was to be extended further into Syrian territory13. The territory controlled by Turkey following Operation Peace Spring is limited to the portion of territory between Tal Abyad and Ras Al-Ayn with a depth of 32 km14, a smaller area than the safe zone that President Erdogan had announced earlier.
The announcement by the Turkish President echoed his statement that previously established safe areas in northwestern Syria following the other operations had already enabled the return of hundreds of thousands of refugees15. UNHCR and Turkish delegations met to discuss the voluntary repatriation of Syrian refugees on 11
8 See a summary of these operations on the website of the Turkish Ministry of Foreign Affairs, <
http://www.mfa.gov.tr/relations-between-turkey%E2%80%93syria.en.mfa> accessed 11 June 2020.
9 The Syrian National Army (SNA) is a Turkish-backed armed opposition group, see: UNHRC ‘Report
of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (28 January 2020) A/HRC/43/57, para. 12 note 3.
10 The Syrian Democratic Forces (SDF) are an alliance of Kurdish militia active in the Syrian war, its
primary component being the Kurdish People’s Protection Group (YPG), which Turkey considers as a ‘terrorist group’ linked to the Kurdistan Workers Party (PKK), a separatist Kurdish party in Turkey also qualified by the latter as a ‘terrorist group’. The SDF was founded in 2015 and is active in northern Syria, where it gained and lost control of different areas during the war, fighting for a independent area for Kurdish people. See: < https://www.aljazeera.com/news/2019/10/syrian-democratic-forces-191015080247945.html> accessed 25.02.2020.
11 UNHRC ‘Report of the Independent International Commission of Inquiry on the Syrian Arab
Republic’ (28 January 2020) A/HRC/43/57, para. 12.
12 See the Readout of the Secretary-General’s meeting with President Erdogan
<
https://www.un.org/sg/en/content/sg/readout/2019-11-01/readout-of-the-secretary-general%E2%80%99s-meeting-he-mr-recep-tayyip-erdogan-president-of-turkey> accessed 25 March 2020; see also the Statement made by President Erdogan at the opening session of the Global Refugee Forum, 17 December 2019 < https://www.unhcr.org/events/conferences/5dfce7bc4/statement-from-turkey.html> accessed 25 March 2020.
13 Address of President Erdogan to the 74th Session of the United Nations General Assembly, UNGA
(24 September 2019) A/74/PV.3.
14 Memorandum of Understanding Between Turkey and the Russian Federation (MoU) (22 October
2019) point 3, available at <http://en.kremlin.ru/supplement/5452> accessed 20 March 2020.
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November 201916 and 29 November 201917. From the information available on these
two meetings, it is difficult to predict what the outcome will be: the UNHCR News website indicates that ‘both sides agreed on the importance and urgency of enhancing joint efforts in a result-oriented manner with a view to ensuring safe and voluntary returns of Syrian refugees’18, but it is unclear whether these joint efforts would concern
return to safe areas established by Turkey.
Voluntary repatriation is generally considered to be the most desirable long-term solution19, including in protracted refugee situations where UNHCR considers it is the preferred solution, although it should be used in a comprehensive approach that may include the three classical durable solutions20. It comes as no surprise that host states are pushing to find a solution for Syrian refugees to go back to their homeland, when they do not want (and are not legally bound) to offer local integration and resettlement places are scarce21. UNHCR registered a total of 86,798 spontaneous returns from Turkey as of January 202022, with a higher return rate in 2019 than in previous years. In contrast, Turkish officials claim that between 337,000 and 580,000 Syrians have returned to areas in northern Syria controlled by Turkish forces23. Although one cannot deduce real numbers from these very contrasting accounts, Turkish statements do manifest the intent to encourage ‘voluntary returns’. As it is not the first time Turkey communicates plans of returns linked to its military operations24,
the legal implications of this proposition deserve attention.
16 UNHCR Press Releases, ‘UNHCR and Turkey discuss voluntary repatriation of Syrian refugees’ (11
November 2019) < https://www.unhcr.org/news/press/2019/11/5dc982c34/unhcr-turkey-discuss-voluntary-repatriation-syrian-refugees.html?query=voluntary%20repatriation> accessed 21 April 2020.
17 UNHCR Press Releases, ‘UNHCR and Turkey hold further discussions on voluntary repatriation of
Syrian refugees’ (29 November 2019) < https://www.unhcr.org/news/press/2019/11/5de123694/unhcr-turkey-hold-further-discussions-voluntary-repatriation-syrian-refugees.html> accessed 21 April 2020.
18 Ibid.
19 UNHCR, ‘Handbook on Voluntary Repatriation: International Protection’ (1996) (‘Handbook’)
Preface.
20 UNHCR EXCOM Conclusion No 109 (LXI) ‘Protracted Refugee Situations’ (2009).
21 See UNHCR ‘Durable Solutions for Syrian Refugees: July/August 2019 Update’. According to
UNHCR, only 1 out of 20 Syrian refugees in need will be submitted for resettlement. Turkey represents the country with the highest number in terms of both resettlement targets and submissions.
22 UNHCR ‘Voluntary Returns of Syrian Refugees: Regional Analysis’ (2020). 23 The Asylum Information Database (AIDA), ‘Country report: Turkey’ (2019) 123.
24 President Erdogan mentioned resettling refugees to northern Syria already in 2015, see The
Independent, ‘President Erdogan shames EU with Turkish stance on Syrian refugee crisis’ (5 October 2015) < https://www.independent.co.uk/news/world/europe/president-erdogan-shames-eu-with-turkish-stance-on-syrian-refugee-crisis-a6680846.html> accessed 19 July 2020.
8 1.2. Description of the research
This thesis is a critical analysis of Turkey’s plan of ‘voluntary and safe return’ of 1 million Syrian refugees to the safe zone in northeast Syria, and in more general terms, any return of Syrian refugees to a safe zone under its control in Syria. The research question is consequently the following: is the ‘voluntary and safe return’ of Syrian refugees by Turkey to a safe zone in northeast Syria in compliance with international (refugee) law?
In order to answer this question, Part 2 of this thesis addresses the status and protection of Syrian refugees in Turkey and the obligations of Turkey in areas under its control in Syrian territory. Since Turkey makes reference to voluntary repatriation standards as developed by UNHCR, Part 3 critically assesses this proposition in light of the normative framework of voluntary repatriation as a durable solution. Finally, the status of the zone and the uncertainty regarding its future lead to important questions of jurisdiction over, and protection of, the refugees who would return there, even voluntarily. Accordingly, the last section of this thesis aims to define the normative standards for the return of refugees to areas that are controlled by the country of asylum within the country of origin.
1.3. Methodology
The research question laid down above is evaluative in the sense that it evaluates specific actions taken by a State (Turkey) to deal with a political and humanitarian situation, according to international law, and whether, from a legal point of view, it is acceptable or not. This thesis aims to characterize the legal implications of such actions; it is a legal research that is practical-based and aims to assess how norms of international (refugee) law apply to the case. For these reasons, other approaches of refugee studies and policy considerations are set aside in favour of a legal assessment of the situation. This thesis contains a descriptive component relating to the relevant international obligations of Turkey in relation with the thesis subject, together with a normative assessment.
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This paper is written from an international refugee law perspective and relies on standards established by the 1951 Refugee Convention25 and its 1967 Protocol26.
Because Turkey, although it is party to the Protocol, maintains the geographical restriction of the Convention, international and regional human rights instrument are also important for the analysis: the European Convention on Human Rights (ECHR)27, especially in respect to non-refoulement obligations, as well as the International Covenant on Civil and Political Rights (ICCPR)28, that also comprises the right to return. UNHCR being tasked to promote voluntary repatriation under its Statute, UNHCR Guidelines and Executive Committee Conclusions are used as a necessary complement to binding instruments.
25 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954)
189 UNTS 137 (1951 Convention).
26 Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October
1967) 606 UNTS 267 (1967 Protocol).
27 Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, as amended) (ECHR).
28 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force
10 2. SYRIANS IN TURKEY AND TURKEY IN SYRIA
2.1. The Protection of Syrian Refugees in Turkey: Temporary Protection
Turkey is party to the 1951 Convention and its 1967 Protocol but retains the geographical restriction which excludes non-European refugees29. As a result, Syrian and other non-European asylum seekers do not benefit from the 1951 Convention guarantees, but are protected by other norms of international and regional human rights law that bind Turkey, namely the ECHR and the ICCPR. The fact that Turkey does not apply the 1951 Convention to non-European refugees has not prevented it to open its borders to Syrians fleeing war and persecution, and the protection offered to Syrians was codified at the domestic level in the 2013 Law on Foreigners and International Protection (LFIP)30 and the 2014 Temporary Protection Regulation (TPR)31. The TPR was adopted according to Article 91(1) LFIP, which provides for the possibility to offer temporary protection in case of mass influx of foreigners seeking immediate protection. According to UNHCR, temporary protection is a tool of international protection that is adopted by States in response to humanitarian crises, particularly when an individual determination of refugee status is impossible or not adequate, for example for Sates that are not parties to the 1951 Convention or in case of a mass influx of refugees32. For
Syrian refugees in Turkey, it is the case that they do not fall under the restricted scope of application of the 1951 Convention and the 1967 Protocol, and that Turkey has been facing a large influx since the start of the Syrian war. As a result, Syrians in Turkey are all subject to a temporary protection regime that makes no distinction between people who would be fleeing persecution on a Convention ground and qualify as refugees and ‘war refugees’ protected against refoulement33. In the absence of an international
regime governing temporary protection34, the refugee-specific protection afforded to
29Protocol, Declarations and Reservations, Turkey, available at
< https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=V-5&chapter=5&lang=en> accessed 26 May 2020
30 Law No 6458 of 2013 on Foreigners and International Protection (amended 29 October 2016)
(Turkey).
31 Temporary Protection Regulation (22 October 2014) (Turkey).
32 UNHCR, ‘Guidelines on Temporary Protection or Stay Arrangements’ (2014) para 2.
33 Syrians and other former habitual residents of Syria such as Palestinian refugees in Syria are likely to
be fleeing persecution on different grounds and from different actors in the conflict, see UNHCR, ‘International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic: Update V’ (2017).
34 There is a growing body of authors arguing for temporary protection as customary law, or at least its
core components: admission, non-return and human rights standards, see e.g. Guy S Goodwin-Gill, ‘Non-Refoulement, Temporary Refuge, and the ‘New’ Asylum Seekers’ in David Cantor and Jean-François
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Syrians in Turkey is limited, and Turkey’s obligations must be derived from human rights instruments to which it is party and customary international law, which offer guarantees against refoulement.
Of interest to the subject of this thesis is the framework of voluntary repatriation: the protection of Syrian refugees against forced return and the possible consequences of a return, voluntary or not, for Syrian holders of temporary protection. Considered as the cornerstone of the international refugee protection regime35, the principle of non-refoulement is central to any discussion return. While the 1951 Convention and its provision against refoulement36 is not applicable, it is generally admitted that there is a customary norm of international law prohibiting refoulement of refugees37. Now whether such customary norm would apply to Syrian refugees in Turkey can be discussed 38. The UNHCR Executive Committee regularly calls upon States to respect the principle of non-refoulement39, and although the conclusions are not binding, it is worth noting that they are a meaningful expression of legal consensus to which Turkey participates as a member of the Executive Committee40. In addition, since the adoption of the LFIP and the TPR, Turkey has incorporated a non-refoulement provision in both instruments, that includes both the formulation of the Convention and that deriving of the ECHR prohibiting return to a territory where the person would face a risk of treatment contrary to Article 3 thereof41. Thus, Turkey is bound to respect its
Durieux, Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill/Nijhoff 2014) 433.
. This thesis’s subject being voluntary return, the content of protection is irrelevant and thus guarantees offered by a temporary protection regime fall outside of the scope of the study.
35 UNHCR EXCOM, ‘Note on International Protection’ (2016) UN Doc EC/66/SC/CRP.10, para 24. 36 Article 33 1951 Convention.
37 UNHCR EXCOM, ‘Note on International Protection’ (n 35) para 24; Walter Kälin, Martina Caroni,
Lukas Heim, ‘Article 33, para. 1’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol: A Commentary (OUP 2011) 1345; Sir Elihu Lauterpacht and
Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’ in UNHCR,
Refugee Protection in International Law: UNHCR's Global Consultations on International Protection
(2003) 149; see however contra, James C. Hathaway, The Rights of Refugees under International Law (CUP 2005) 367.
38 See Marjoleine Zieck, ‘UNHCR and Turkey, and Beyond: of Parallel Tracks and Symptomatic Cracks’
(2010) 22 IJRL 593 (‘UNHCR and Turkey’), 615. She argues that the geographical restriction applied by Turkey has the effect of a persistent objection.
39 UNHCR EXCOM Conclusion No 103 (LVI) ‘Provision on International Protection Including Through
Complementary Forms of Protection’ (2005) let. (m).
40 UNHCR, ‘Background on the Executive Committee’ (1 July 2001), available online at <
https://www.unhcr.org/excom/announce/3b4f09faa/background-executive-committee.html> accessed 16 July 2020.
41 Article 4 LFIP and Article 6 TPR have the same text: ‘No one within the scope of this [Law/Regulation]
shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment or, where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion’. As for the scope of
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non-refoulement obligations under the ECHR, the ICCPR, its national law and arguably
also the customary norm of international law. The prohibition is understood in its broader scope, encompassing both return to a threat to life or freedom in the meaning of international customary law and Turkish law, and return to a risk of treatment contrary to Article 3 ECHR and Article 7 ICCPR.
In relation to the status of Syrian refugees in Turkey, it is worth noting the possibility for the Council of Minister to order the termination of temporary protection and the return of former beneficiaries of this regime, with non-refoulement as the only binding international obligation42. Hence, the principle non-refoulement is central in limiting the possibility for Turkey to terminate Syrians’ protection status. To this day, Turkey has not expressed the intention to end the temporary protection regime and the majority of Syrians present in Turkey have a temporary protection status43. It is thus assumed that a voluntary return of Syrian refugees would concern people with a temporary protection status. Indeed, for Syrians who do not have this status but have a title of residence, a voluntary return is not envisaged. For Syrians who are not registered or are subject to deportation on grounds such as exclusion of temporary protection, a return would be based on other grounds, and is not addressed in this thesis. The lack of durability of such status is however relevant when assessing plans of voluntary return, as the uncertainty towards prospects of staying in Turkey may be a push-factor for Syrians considering both options to leave or to remain, when they are presented with a real choice44. Once temporary protection ends, there is no guarantee that Syrians would get access to a refugee status determination procedure or to a more durable form of stay45, and this might influence their decision to return, along with other factors.
2.2. The Safe Zone in Northeast Syria: Turkey’s Occupation and Obligations
At the heart of the present analysis lies the status of the safe zone, as it sets apart Turkey’s plan from other regional efforts and policies pushing for repatriation to other
both instruments, they apply to foreigners making international protection claims at borders, to foreigners who, part of large influx, were forced to leave and are unable to return to the country they left and arrived at or crossed a Turkish border (article 1 LFIP, article 2(1) TPR).
42 Meltem Ineli-Ciger, ‘A Temporary Protection Regime in Line with International Law: Utopia or Real
Possibility?’ (2016) 18 International Community Law Review 278, 288; Article 11(2)(a) TPR.
43 According to the website of the DGMM, 3,581,636 beneficiaries of temporary protection as of 05 June
2020 <https://en.goc.gov.tr/temporary-protection27> accessed 11 June 2020.
44 Returns presented are voluntary are not always the result of a free choice of the refugees, see infra Part
3.3.
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parts of Syria. Operation Peace Spring, along with the previous operations conducted by Turkey46, was conducted without the consent of Syria47, resulting in a ‘safe zone’
established through a unilateral military operation on another State’s territory in breach of the rules on use of force48 , violating the territorial integrity of Syria49. Turkey’s operations in northern Syria led to the illegal occupation by Turkey of parts of northern Syria50. The effective control over another State’s sovereign territory without its consent51 or the overall control over an organized group that has itself effective control of the territory are constitutive of occupation52. Turkey’s presence in northeastern Syria without the consent of Syria is thus constitutive of occupation, regardless of whether effective control is exercised directly by Turkish forces or by the Turkish-led SNA. Although President Erdogan denies occupation53, either to avoid the application of duties under the law of occupation or simply to avoid a term that carries negative connotation54, Turkey bears obligations under the rules of occupation in relation with the territory it occupies, its infrastructures and its demographics. Indeed, one basic tenet of the law of occupation is that occupation is meant to be temporary. It is defined as the ‘effective control of a power (…) over a territory to which that power has no sovereign
46 The three operations mentioned in Introduction, supra.
47 Syria officially condemned Turkey’s intentions ‘which constitutes a flagrant violation of international
law and a blatant violation of Security Council resolutions, in all of which the Council affirms that the unity, integrity and sovereignty of Syria must be respected’. UN Security Council ‘Identical letters dated 10 October 2019 from the Permanent Representative of the Syrian Arab Republic of the United Nations Addressed to the Secretary-General and the President of the Security Council’ (10 October 2019) S/2019/806
48 UN Charter, Article 2 para. 4: ‘All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’-
49 UNSC Res 2254 (18 December 2015) UN Doc S/RES/2254.
50RULAC Project, Geneva Academy of International Humanitarian Law and Human Rights,
<http://www.rulac.org/browse/conflicts/military-occupation-of-syria#collapse2accord> accessed 10 April 2020; Eyal Benvenisti and Eliav Lieblich, ‘Assessing Turkey’s ‘Resettlement’ Plans in Syria under the Law of Occupation’ (JustSecurity, 23 October 2019) < https://www.justsecurity.org/66679/assessing-turkeys-resettlement-plans-in-syria-under-the-law-of-occupation/> accessed 27 March 2020.
51 See UNSC, ‘Identical letters dated 10 October 2019 from the Permanent Representative of the Syrian
Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council’ (10 October 2019) UN Doc S/2019/806.
52Tristan Ferraro, ‘Determining the Beginning and End of an Occupation under International
Humanitarian Law’ (2012) 94/885 IRRC 158; Benvenisti and Lieblich (n 50).
53 The Guardian, ‘US warns Turkey of red lines as Syria offensive death toll mounts’
< https://www.theguardian.com/world/2019/oct/10/turkish-president-threatens-send-refugees-europe-recep-tayyip-erdogan-syria> accessed 28 April 2020; the MoU signed between Russia and Turkey (n 14) reaffirms the territorial integrity of Syria, and President Erdogan has declined to answer to comments of the President of the Syrian Arab Republic at a UN Security Council Meeting, see UN Security Council Meeting Reports, ‘The Situation in the Middle-East’ (24 October 2019), UN Doc S/PV.8645.
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title, without the volition of the sovereign of that territory’55, which makes clear that
the occupying state is not sovereign and its presence is temporary. Accordingly, customary international humanitarian law limits the powers of the occupant and confirms its transitory nature56: according to the customary Article 43 Hague Regulations occupying power is entrusted to ‘restore and ensure public order’57, but also to maintain status quo and not to engage in demographic and infrastructural change in what would be called a transformative or restorative occupation58. Arguably, that alone would form a legal basis to prevent any forcible transfer of Syrians refugees operated by Turkey from Turkey to the safe zone, as a transfer of 1 million Syrians would indeed not concern people solely originating from the area, but from other areas of Syria as well, and would thus alter the demographics of the area59. It does not, however, prevent Syrians refugees to exercise their right to return60.
Defining the obligations of Turkey towards the territories it occupies comes down to establishing the application of both international humanitarian law and international human rights law. For the former, the application of the Geneva Conventions and customary humanitarian law is based on the existence of an international armed conflict (IAC). The existence of an IAC between Turkey and Syria may be based on two considerations. First, the use of force on another State’s territory, even if the force is used against a non-state actor, as argued by Erdogan61, leads to an international armed
conflict (IAC)62. Second, it is recognized that there is an IAC in case of partial or total
occupation63.
55 Benvenisti (n 54) 3.
56 Salvatore Fabio Nicolosi, ‘The Law of Military Occupation and the Role of De Jure and De Facto
Sovereignty’ (2011) 31 Polish Yearbook of International Law 165, 177.
57 Article 43 of the Convention (IV) respecting the Laws and Customs of War and Land and its annex:
Regulations Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) (Hague Regulation). Turkey is not party to the Hague Regulation, but is bound by customary international humanitarian law, which has the same content.
58 Benvenisti and Lieblich (n 50). 59 Ibid.
60 See infra Part 3.
61 President Erdogan claimed that the Operation targeted only terrorist groups and ‘prevented the
establishment of a terror state in northern Syria’, see UN Meetings Coverage, ‘Turkey’s Military Operation Has Displaced Thousands of Civilians, Worsened Syria’s Dire Humanitarian Crisis, Top Official Warns Security Council’ (24 October 2019) <https://www.un.org/press/en/2019/sc13994.doc.htm> accessed 20 March 2020.
62 Tristan Ferraro and Lindsey Cameron, ‘Article 2: Application of the Convention’ in ICRC (ed), Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2nd ed, ICRC 2016) para. 260-261; Turkey and
Syria are parties to the four Geneva Conventions.
63 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
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Regarding the extraterritorial application of human rights, it has been recognized in a range of situations and has been recognized by the ECtHR in the context of occupation. The Court recognizes that the direct or indirect effective control over a foreign territory triggers the responsibility of a state64. The International Court of Justice has also affirmed the applicability of the ICCPR in occupied territories65. The question remains as to whether Turkey is in effective control of the territory, and it is most probably the case: there are not only Turkish-backed SNA fighters but also direct Turkish presence66. In a situation of international armed conflict, human rights do not cease to apply, save by way of derogation to the ICCPR, respectively the ECHR67. Human rights instruments do provide for the possibility to derogate from certain rights in times of emergency, a possibility that Turkey seized during the state of emergency, under Article 15 ECHR68 and Article 4 ICCPR6970. However, since Turkey withdrew both derogations71 and did not reintroduce a derogation for the occupied territories in Syria, there is no reason to deny the full application of both instruments to these territories. It is noted that the zone is still in Syria’s territory, and that occupation is meant to be temporary, a status that is already in contradiction with Turkey’s claimed intention of providing a durable solution to Syrian refugees in the form of voluntary repatriation, which is the focus of the next Chapter. Nevertheless, until occupation ends, Turkey bears the human rights obligations entailed by its control over the safe zone, towards
64 Loizidou v. Turkey (1995) ECHR 10, para 52; Banković and Others v. Belgium and Others (2001)
ECHR 890, para 70.
65 Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 136 [110]. 66 For a recent report of Turkish presence, see Syrian Observatory for Human Rights ‘Turkish military
in NE Syria - Turkish forces bring in new reinforcement to Ras Al-Ain (Sere Kaniye)’ (22 May 2020) <https://www.syriahr.com/en/?p=165978> accessed 30 June 2020.
67 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [25]. 68 Article 15(1) ECHR provides that ‘[i]n time of war or other public emergency threatening the life of
the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’.
69 Article 4(1) ICCPR provides that ‘[i]n time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.
70 For the ECHR, see <
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations> accessed 9 June 2020; for the ICCPR, see <
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4> accessed 9 June 2020.
16
people already in its jurisdiction. The transfer of people from its territory to Syrian territory will not discharge it from its protection duties.
3. VOLUNTARY REPATRIATION AS A DURABLE SOLUTION
Voluntary repatriation is first and foremost a durable solution which pursuit falls within UNHCR’s mandate72. The fact that UNHCR is tasked to promote durable
solutions and to assist governments and private efforts to promote and facilitate voluntary repatriation73 implies different degrees of involvement, always with the aim to enable the exercise of the ‘right to return home in safety and dignity’74. Voluntary
repatriation within UNHCR’s mandate is therefore oriented towards the implementation of the right of any displaced person to return home. As such, the pursuit of solutions is not an obligation of states, less so if the state limits the application of the 1951 Convention. However, Turkey seems to refer to the solution and its main requirement. According to the Memorandum of Understanding signed between Turkey and Russia and Erdogan’s statements, Turkey aims to ‘facilitate the return of refugees in a safe and voluntary manner’75 and to ‘enable the voluntary and safe return of
refugees’76, which seems to confirm the adherence to the principles of voluntary repatriation developed by UNHCR and warrant a critical analysis of such reference under the framework of voluntary repatriation.
3.1. Voluntariness
Although the solution of voluntary repatriation is absent, as such, of the 1951 Convention, the legal definition of the solution may be derived from the guarantees of the Convention: between inclusion and cessation, the solution shall be used in full respect of non-refoulement77. Refugees are, by definition, unrepatriable78, and benefit from the protection against forced return as long as they continue to satisfy the
72 UNGA, Statute of the Office of the United Nations High Commissioner for Refugees (14 December
1950) A/RES/428(V) (UNHCR Statute).
73 Ibid., Art. 1 and 8(c).
74UNHCR, ‘Handbook’ (n 19), Preface. 75 MoU (n 14) point 8.
76 Address of President Erdogan to the 74th Session of the United Nations General Assembly, UNGA
(24 September 2019) A/74/PV.3, para 52.
77Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis (Martinus
Nijhoff Publishers 1997) 430.
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definition laid down in the Convention79. It implies that (non-voluntary) repatriation is
not warranted until the refugee status comes to an end following the application of one of the cessation clauses, and that preceding that, it can only happen on a voluntary basis. Voluntariness is thus at the core of the solution, and in its absence, any repatriation would breach the principle of non-refoulement80. For Syrian refugees in Turkey, whose need of international protection is recognized81 but who do not fall within the Convention refugee definition, voluntariness is a requirement as it mirrors the principle of non-refoulement. Temporary protection status, as a discretionary measure adopted by Turkey, may in that regard be considered as confirming the unrepatriable character of people with this status. If returned involuntarily, Syrian temporary protection status holders would be sent back to the circumstances that forced them to flee, unless it is recognized that these circumstances have ceased to exist. The UNHCR Handbook on Voluntary Repatriation indicates that the repatriation is deemed voluntary only if the subjective element of the well-founded fear of persecution have ceased82. Voluntariness implies that the decision is the result of a free and informed choice83. In practice, conditions of actual returns are questionable, as many reports state that refugees are made to sign forms that they do not understand, and people are actively encouraged to return to safe areas in Syria84.
Should a return to Syria’s territory be voluntary, even if it is in Turkey’s jurisdiction? One might argue that the transfer of refugees from Turkey to a Turkish safe zone, although in Syrian territory, would happen within a single State’s jurisdiction, and therefore, there would be no question of refoulement. This question is treated in Part 4. At any rate, when it comes to comparing the Turkish proposition to the durable solution that is voluntary repatriation, voluntariness is a necessary component of the analysis. With this background, Turkish government claims do not coincide with reports85.
79 Ibid, UNHCR and Voluntary Repatriation, 102. 80 Ibid, para 2.3.
81 The TPR protects people that ‘were forced to leave their country and are unable to return’, Article 7(1)
TPR
82 UNHCR, ‘Handbook’ (n 19) para 1.2. 83 Hathaway, Rights (n 37), 916.
84 See e.g. Amnesty International, ‘Turkey: Sent to a War Zone: Turkey’s Illegal Deportations of Syrian
Refugees’ (25 October 2019); Sahin Mencutek Z, ‘Encouraging Syrian Return: Turkey’s Fragmented Approach’ (2019) Forced Migration Review N 62
18 3.2. Safety, dignity and re-availment of protection
Voluntary repatriation is commonly referred as a ‘return in safety and dignity’, which according to UNHCR implies, for the former, conditions of legal safety, physical security and material security86. As for dignity, it means that refugees must be able to ‘return unconditionally and that if they are returning spontaneously they can do so at their own pace; that they are not arbitrarily separated from family members; and that they are treated with respect and full acceptance by their national authorities, including the full restoration of their rights.’87.
The requirements for a return under conditions of legal safety and physical and material security are thus quite high. Basic physical security, in the case of a return during an armed conflict, overlaps with the basic obligations relating to the protection of civilians in international humanitarian law and other obligations of Turkey under international human rights law88. For a voluntary return in safety and dignity, this protection is however not sufficient. Indeed, legal safety encompasses an array of rights such as freedom from fear of persecution89, the restoration or compensation for housing, land or property, family unity, nationality and registration and documentation, as well as measures by the country of origin such as amnesty laws or declarations90. Such
conclusion indicates that safety and dignity requirement are, in essence, connected with the durability of the solution and the end goal to restore a national protection. These requirements set up conditions necessary to an actual return, which translate into the guarantee of basic human rights. As a result, only if reinsertion and reintegration is attained through such guarantees can the return take its true meaning91. To guarantee conditions of safety and dignity, the involvement of the country of origin is a necessary precondition. It is hard to comprehend how conditions of safety and dignity – and the durability of such conditions – could be implemented in the absence of any involvement of Syria. Because Turkey is prevented to make significant changes to the law of the territories it occupies, it cannot substitute itself to Syria in that regard.
86 UNHCR, ‘Handbook’ (n 19) para 2.4. 87Ibid.
88 Cf. Part 2.2.
89 UNHCR, ‘Handbook’ (n 19) para 2.4.
90 UNHCR EXCOM Conclusion No 101 (LV) ‘Legal Safety Issues in the Context of Voluntary
Repatriation of Refugees’ (2004) (‘Legal Safety’), let. c.
91 Marjoleine Zieck, ‘Voluntary Repatriation: Paradigm, Pitfalls, Progress’ (2004) (‘Paradigm, Pitfalls,
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Most importantly, voluntary repatriation as a durable solution requires an actual restoration of a bond between repatriating nationals and their country of origin92. It
implies that the returnees re-avail themselves of the protection of the state of origin, as confirmed by the conditions developed by UNHCR for it to consider promoting the solution such as safety and dignity developed above, and the link of the solution with the cessation clauses93. As opposed to repatriation of Syrians to regime-held areas, whose return application is subject to the Syrian government’s approval94, there is no involvement of Assad’s Syria in any repatriation to the safe zone, as it is precisely not under the government’s control. In practice, not all organized voluntary repatriations have taken place when there was no prospect of direct and full restoration of a bond between the returnees and their country95. UNHCR does refer in its Handbook to returns to safe areas that are not in government control, stressing that it will not promote such returns but should protect and assist returnees in these areas96. It is after all a right of all refugees to return to their country of origin, even when it does not involve an actual restoration of a bond with the country of origin. In such cases, it falls within UNHCR mandate to monitor the protection of returnees97. However, for a voluntary repatriation as a durable solution, UNHCR recalls that ‘[t]he purpose of international protection is not (…) that a refugee remain a refugee forever, but to ensure the individual's renewed membership of a community and the restoration of national protection either in the homeland or through integration elsewhere’98. Even in protracted refugee situations,
protection is meant to be temporary and the ultimate aim is to restore a form of national protection. With voluntary repatriation, the primary responsibility rests with the country of origin99, and when people return, durability is attained when they actually re-establish themselves in the country of origin, ideally then also excluding a return to the country of asylum100. While it is the state of origin that must bear the responsibility of
92 Hathaway, Rights (n 37) 918.
93 Zieck, ‘Paradigm, Pitfalls, Progress’ (n 91) 52.
94 Tamirace Fakhoury and Derya Ozkul, ‘Syrian refugees’ return from Lebanon’, FMR 62,
https://www.fmreview.org/return/fakhoury-ozkul
95 See for example the return of Iraqi refugees to the safe zone controlled by allied forces, Zieck, UNHCR and Voluntary Repatriation (n 65), Chapter 7; Katy Long, ‘Border Closures, ‘Safe’ Zones and Refugee
Protection’ (2012) 26 JRS 458, 471. However, although the repatriation was not immediate, the operation did involve the Iraqi government as it signed a MoU with UNHCR.
96 UNHCR, ‘Handbook’ (n 19), para 5.1. 97 UNHCR, ‘Handbook’ (n 19) para 1.6. 98 UNHCR, ‘Handbook’ (n 19) Preface.
99 UNHCR EXCOM Conclusion No 40 (XXXVI) ‘Voluntary Repatriation’ (1985), let. d. 100 Zieck, ‘Paradigm, Pitfalls, Progress’ (n 91), 46.
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protection of returnees, here Turkey has substituted itself to Syria and is responsible for the protection of people within its jurisdiction.
For refugees that would relocate to a zone under Turkish control, protection from the government is simply not available and in most cases not desirable. If the refugees do not re-avail themselves of Syria’s protection, although they have returned to Syrian territory, it is not a voluntary repatriation as a durable solution. It is noted that the situation is temporary, and that control could revert at any moment – in that sense re-availment of protection could be postponed, but it could also never happen. As long as it is not guaranteed through a cooperation between UNHCR, Turkey and the Syrian Arab Republic, and ideally also with the involvement of refugees themselves, this element is missing.
3.3. The right to return to one’s place of origin or former habitual residence
While the right not to return is central to the solution of voluntary repatriation and its most important requirement, voluntariness, the right to return is the basis on which the solution is developed. One can assume that some refugees would wish to return to their place of origin, and it is indeed their right, as guaranteed by Article 12(4) ICCPR, which is the international human right underlying voluntary repatriation101. But
the solution, with the aim to put an end to displacement, implies more than a return to Syria. In two Conclusions, the UNHCR Executive Committee has stressed the need that a voluntary repatriation be carried out to the former place of residence of the refugee102,
the place of origin or a place of residence of choice103, as opposed to another place within the country of origin which would only be constitutive of further internal displacement. That the return of refugees and displaced people should be to the place of origin was confirmed by the UN Pinheiro Principles104, that reaffirm the right of refugees to ‘voluntary return, in safety and dignity, to their original or former habitual homes and lands’105. Consequently, any voluntary repatriation operation to the
101 UNHCR, ‘Handbook’ (n 19), para 2.1.
102 UNHCR EXCOM ‘Voluntary Repatriation’ (n 99) (b). 103 UNHCR EXCOM ‘Legal Safety’ (n 90) let (c).
104 ECOSOC (Sub-Commission on the Promotion and Protection of Human Rights) ‘Principles on
Housing and Property Restitution for Refugees and Displaced Persons’ (UN Pinheiro Principles) (28 June 2005) E/CN.4/SUB.2/2005/17.
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Operation Peace Spring area would only qualify as such if relocating refugees return to their place of origin or habitual place of residence.
This makes the reference by Turkey to voluntary repatriation misleading when one looks at the demographics of northeast Syria, which are complex and changed in the ten years of war. The towns that are now controlled by Turkey and its proxies were previously under Kurdish control and populated by Kurds, including from other regions of Syria, but the original population, which varies amongst villages, is said to be mixed between Sunni Arabs, Kurds, Turkmens and Armenians106. There is no need for a further examination of the place of origin of Syrian refugees in Turkey107 to argue that it is hardly conceivable that a million of them would be originating from villages and towns in the safe zone. While the right of refugees originating from towns under Turkish control to go back on an individual basis should of course be respected, it is incorrect for Turkey to rely on this right to legitimate the ambition to facilitate a collective voluntary repatriation108.
3.4. Sub-conclusion: missing actors
In sum, the ‘voluntary repatriation’ reference is misleading, if not plainly wrong. Refugees might be, in a sense, repatriating, but they are not doing so in accordance with UNHCR-developed standards relative to the solution of voluntary repatriation. In the absence of a restoration of a national bond, the core of the solution is missing. Turkish jurisdiction and conditions on site plead against qualifying Turkey’s proposition as a voluntary repatriation. The essential preconditions for UNHCR to promote a return in safety and dignity109 are not met, and it its not on Turkey to initiate a repatriation
106 Different sources will give a different distribution of percentages, see Al-Monitor, ‘Turkey's
occupation of northern Syria includes population transfers’ (7 May 2020) < https://www.al-
monitor.com/pulse/originals/2020/05/turkey-syria-population-transfers-tell-abyad-irk-kurds-arabs.html> accessed 7 June 2020.
107 Data is held by the Turkish government, but according to UNHCR, a significant proportion of refugees
come from Aleppo, Homs, Hama and Idlib – this excludes provinces where the safe area is established, Al-Hassakeh and Ar-Raqqa. See UNHCR, ‘Comprehensive Thresholds and Parameters for Refugee Returns to Syria’ (2018).
108 ‘Surely all refugees should enjoy the right of voluntarily going back to their motherlands’, Statement
made by President Erdogan at the opening session of the Global Refugee Forum, 17 December 2019 <https://www.unhcr.org/events/conferences/5dfce7bc4/statement-from-turkey.html> accessed 7 June 2020. In addition to the reference to a return to the refugees’ ‘motherland’, the Joint Statement by Iran, Russia and Turkey makes explicit reference to a return ‘to their original place of residence in Syria’, see Joint Statement by Iran, Russia and Turkey on the International Meeting on Syria in the Astana format, Nur-Sultan (10-11 December 2019), available at < http://www.mfa.gov.tr/suriye-konulu-ondorduncu-yuksek-duzeyli-toplanti-ortak-aciklama.en.mfa> accessed 11 June 2020.
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movement: facilitation of returns is UNHCR’s task, and only when it is the refugees themselves that initiate it spontaneously110. One should be wary not to push for the
implementation of a solution designed to allow the implementation of refugees rights and put an end to their plight in full respect of their agency, when it is in reality a simple fix for the challenges faced by a state111.
That being said, Turkish jurisdiction does introduce a new challenge in the analysis of state’s obligations and refugee rights in the context of a return to a safe zone. 4. IMPLICATIONS OF A REPATRIATION TO THE SAFE ZONE
Although the proposition does not correspond to the solution of voluntary repatriation, a priori it does not rule out all repatriation efforts. First, it is the right of refugees to return to their former place of habitual residence. Second, whether or not the returns have to be voluntary can be discussed on the basis that the area is under Turkish control, and that it is arguably a safe area. This fourth and last part analyses the extent of Turkey’s obligations and corresponding refugees and returnees’ rights.
4.1. The rights of returning refugees
4.1.1. Non-refoulement and safe return
Syrians in Turkey, whether beneficiaries of temporary protection or not, are protected against refoulement112. If voluntariness is premised on a non-refoulement
obligation113, it is necessary to determine whether a return to the safe area may amount
to refoulement. Two considerations come into play when assessing the compliance of Turkey with prohibition of refoulement: the effective safety of the area and the temporary control of Turkey over this area. First, the alleged purpose of such areas is precisely that they are safe and protected from any threat that have caused the flight. Assuming that the zone would in fact be safe, it could be argued that returning refugees’ life and freedom are not threatened, as Turkey ensures their protection. If refugees can be sent back to an area where there is no risk of persecution, hence no need for protection, then arguably there would be no need to ensure returns are voluntary.
110 UNHCR, ‘Handbook’, para 3.1.
111 See James C. Hathaway, ‘Refugee Solutions, or Solutions to Refugeehood?’ (2007) 24(2) Refuge:
Canada’s Journal on Refugees 3.
112 Cf. supra Part 2. 113 Cf supra Part. 3.
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Most references to safe return are made in connection with the end of the regime of temporary protection. Goodwin-Gill and McAdam refer to safe return as occupying an intermediate position between voluntary repatriation of refugees and deportation of people without a claim for international protection114. According to UNHCR and most commentators, a safe return may only be considered when the need for protection, and with it the temporary protection regime, has ceased115; hence most discussions are centered around a safe and involuntary return116. In contrast, when the person is still in need of protection, non-refoulement implies that the return must be voluntary – and because this choice lies with the refugees themselves, voluntariness is a necessary and sufficient condition. This thesis is not concerned with an eventual end of the temporary protection regime accompanied by an involuntary repatriation in case of a fundamental change of circumstances but with the voluntary return to safe areas before the end of temporary protection. Goodwin-Gill and McAdam note that there is no rule of international law that formally requires conditions of safety in fact to be fulfilled, other than the prohibition of torture or cruel and inhuman treatment, nor that legal safety must be guaranteed117. From the point of view of the country offering temporary protection, there is only the non-refoulement principle that prevents it to return people to unsafe conditions. Indeed, if one was to argue that the need for protection has ceased because people in the safe zone find themselves within Turkish jurisdiction, Turkey could end the temporary protection regime and return people to the safe zone.
In that regard, a return to a safe area may be regarded as mirroring the internal relocation alternative, used in refugee status determination procedures. The fact that a zone that is safe within an unsafe country could not legally justify a return may also be inferred from the fact that refugees cannot be required to return to specific areas to be free from persecution118. In addition, the alternative should be meaningful in the long term: it should be necessary to rule out any risk of refoulement and the risk of any agent
114 Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007)
496-497.
115 UNHCR EXCOM ‘General Conclusion on International Protection’ (1994) UN Doc A/AC.96/839. 116 See e.g. Joan Fitzpatrick, ‘The End of Protection: Legal Standards for Cessation of Refugee Status
and Withdrawal of Temporary Protection’ (1999) 13 Geo Immigr LJ 343, 345 et seq.
117 Goodwin-Gill and McAdam (n 114) 497.
118 UNHCR, ‘Guidelines on International Protection: ‘Cessation of Refugee Status under Article 1C(5)
and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses)’ (2003) para 17.
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of persecution penetrating the area must be remote119. In a situation of temporary
occupation, making sure that control does not revert to an actor persecution is in practice impossible to guarantee.
In the case of a return to a territory that is still in Turkey’s jurisdiction, the obligations of Turkey are not only those of the country of asylum; it also bears the obligation to guarantee the rights of people within the safe zone. Notwithstanding these legal obligations, indiscriminate violence from unidentified sources is a common occurrence in the two towns of Tal Abyad and Ras Al-Ayn, including car bombs leading to civilian deaths120. Turkish-backed factions are also directly identified as perpetrators of human rights violations, including summary executions, property confiscation and enforced disappearance, and more recently the arrests of civilians121 and the recruitment of child soldiers122, which constitutes a war crime under the ICC Statute. The presence of armed groups also puts the life of people within the zone in danger when clashes amongst factions arise123. In addition, the zone is likely to remain vulnerable to attacks from other actors, such as the Kurdish Syrian Democratic Forces, who allegedly entered the territory in July124 and the Syrian regime forces. The potential of the zone for the
119 UNHCR, ‘Guidelines on International Protection: “Internal Flight or Relocation Alternative” within
the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’ (2003) para 8 and 18.
120 The Syrian Network For Human Rights (SNHR) records deaths and other human rights violations by
different parties to the conflict in Syria. Recent reports of car bomb explosions killing civilians in Tal Abyad on 7th of July 2020, respectively in Ras Al-Ayn on 5th of June 2020 can be found on their website:
SNHR, ‘Massacre in Tal Abyad city in Raqqa suburbs when a car bomb exploded on July 7’ (8 July 2020) http://sn4hr.org/sites/news/2020/07/08/massacre-tal-abyad-village-raqqa-suburbs-car-bomb-exploded-july-7/?fbclid=IwAR3M_4Gm8JTNlKo4eY2A
2NzYP1rXYdUCWxIMPSYngOvQHoLqXH7TkpQO-E; SNHR, ‘Civilians were killed when a car
bomb of so far unknown origin exploded in Ras al Ein city in Hasaka on June 5’ (8 June 2020)
http://sn4hr.org/sites/news/2020/06/08/civilians-killed-car-bomb-far-unknown-origin-exploded-ras-al-
ein-city-hasaka-june-5/?fbclid=IwAR0YRT0M2HUfbe1-2xxCcDqAwLXiIdn1DO4T7AT4xvTC9FPFif49pFYWd5Q.
121 SNHR, ‘The Syrian National Army arrested civilians in Tal Abyad al Sharqi village in Raqqa on
January 9’ (21 January 2020) < http://sn4hr.org/sites/news/2020/01/21/syrian-national-army-arrested-civilians-tal-abyad-al-sharqi-village-raqqa-jan-9/> accessed 8 July 2020.
122 Syrians for Truth and Jutice, ‘“Child Recruitment” by Parties to Conflict in Syria, a Lasting
Phenomenon’ (5 May 2020) available at < https://stj-sy.org/en/child-recruitment-by-parties-to-conflict-in-syria-a-lasting-phenomenon/> accessed 8 July 2020.
123 SNHR, ‘Girl killed during clash between two factions affiliated with the Syrian National Army in Ras
al Ein city in Hasaka on July 3’ < http://sn4hr.org/sites/news/2020/07/06/girl-killed-clash-two-factions-
affiliated-syrian-national-army-ras-al-ein-city-hasaka-july-3/?fbclid=IwAR3px4_oqGEPkPoVdAMcSV7g0-56B_m3eR9BGXpxnPAt1NsVtRaal63tGY8> accessed 8 July 2020.
124 Syrian Observatory for Human Rights (SOHR), ‘New infiltration: SDF fighters sneak to positions of
Turkish-backed factions in western Tal Abyad’ (11 July 2020) <
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return of a considerable number of people is thus, at the very least, limited in the current conditions as the zone, is the scene of a continuous armed conflict. Not only these conditions are not conducive to return, it falls under the responsibility of Turkey to protect the civilians, returnees included, in the Operation Peace Spring area.
4.1.2. Non-refoulement and voluntariness
Turkey’s control over the zone does technically question the qualification of a return as refoulement, as people would still be in Turkey’s jurisdiction. It is, as a matter of fact, this particular situation that casts doubt upon the qualification of the move as a voluntary repatriation125. A transfer within a single jurisdiction could be regarded as a relocation – the jurisdictional State then bears human rights obligations but it does not amount to refoulement. The principle of non-refoulement is mainly territorial, as it prohibits returning a person to a territory where they would face a real risk126. The status of the place where the person is sent back is actually irrelevant127, and the extra-territorial application of the principle is recognized. As a result, when a person is still on the territory of the state of origin, but in another country’s jurisdiction, the latter is bound by the principle of non-refoulement. In this case study, it means that Turkey is prevented from sending people from the safe zone back to territories under the control of regime forces. Still, the reverse situation, where a country returns a person to a territory of another state but in the jurisdiction of the former state has received less attention. The action to return, ‘refouler’, is generally understood as any measure forcing the person to leave the territory of the state128, without mention of a necessary condition that the person also leaves the refouling state’s jurisdiction – it is however implied. It would be inconsistent with the text and the meaning of all provisions on non-refoulement to consider that a transfer from one point to another within Turkey’s jurisdiction amounts to refoulement. Following the reasoning that without transfer of jurisdiction, there is no refoulement, would be a far-fetched argument, as Turkey itself shows little engagement in protection of the returnees have crossed the border and left its territory, although their remain within its jurisdiction. It is after all the aim of the
125 Cf. supra 3.2.1.
126 Lauterpacht E and Bethlehem D, ‘The Scope and Content of the Principle of Non-refoulement:
Opinion’ in UNHCR, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (2003) 163.
127 Ibid., 122.
26
operation, and it would not make much sense to deny the applicability of the voluntariness requirement because of the status of Turkey as an occupant. But one does not need to rely on these considerations to affirm the application of non-refoulement. Most relevant is the fact that jurisdiction can change: Part 2 of this thesis made clear that occupation is a transitory situation, and that control over the Operation Peace Spring area may revert at any moment. The temporary nature of the occupation, along with the non-recognition of Assad’s government of the occupation and its claimed intentions to regain control of the totality of Syrian territory129, are all indications that the situation may not stay as it is. It is also possible that Turkey relinquishes control over the zone and puts an end to its support to the Syrian National Army factions. What would happen to refugees having voluntarily returned if Turkey relinquished the control of the zone subsequent to the move? Assuming that the safe zone would stay relatively safe, if a shift of control operates after the return of refugees, a possibility that Turkey cannot ignore, even those who have voluntarily returned would then be automatically in a territory where their life and freedom is threatened, which amounts to a
refoulement.
It is thus argued that the fact that the territory is under Turkish control does not mean it is Turkish territory and relocating people there would still equate to a forced return if voluntariness is not respected. Refugees returning under coercion or without full knowledge of the situation are thus in practice refouled in breach of Turkish obligations. The voluntariness requirement extends to the knowledge of this possibility that Turkey relinquishes control. That is, Syrians returnees must accept that they may end up back within the regime’s control or in other groups’ hands – otherwise any return will amount to refoulement.
4.1.3. Freedom of movement and derived rights
Even if a return to a safe area may be considered not to breach non-refoulement, either because refugees have returned voluntarily, or because the conditions in Operation Peace Spring change, the rights of relocated refugees are broader than the
129 In an interview with SANA agency, the government’s news agency, President Bashar Al-Assad states
that he sees the MoU between Syria and Turkey as temporary and that the ‘ultimate goal is to return to the situation as it used to be previously which is the full control of the state’ (31 October 2019), <https://www.sana.sy/en/?p=177331> accessed 10 July 2020; see also Deutsche Welle, ‘Syria's Assad: Kurdish areas must return to state authority’ (1 November 2019) < https://www.dw.com/en/syrias-assad-kurdish-areas-must-return-to-state-authority/a-51078475> accessed 10 July 2020.
