Blog post by Breshna Rani who has recently been called to the Bar of England and Wales as a Barrister. She is currently working as a paralegal at a law firm and volunteering at the Refugee Law Clinic

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On October 3 2023, Pakistan announced that around 1.7 million Afghan refugees must leave Pakistan by 1 November 2023 or face deportation to the tenure of the Taliban. Could Pakistan’s anti-refugee policy constitute a crime against humanity? The answer is no. Pakistan is not yet committing crimes against humanity [“CAH”] by deporting and/or coercing more Afghan refugees to a land they left in the hopes of escaping the tyranny of the Taliban’s rule in Afghanistan. This is plainly because CAH are not yet codified into a treaty of convention like Genocide and other war crimes.

That is not to say Pakistan might not be breaching other precepts of international law. The extensive nature of international law creates a mechanism whereby multiple legal sources can be considered to assess a situation like the present one. The principle of non-refoulement in international law prevents a state from returning a refugee to their home state that puts their life at risk. The principle is found in Article 33 of Convention relating to the Status of Refugee [“Convention”] but fortunately for Pakistan, it is not a signatory to the Convention therefore on paper it escapes breaching the Convention.

In the absence of a binding international treaty governing the state of refugees with Afghanistan or the rest of the international community, Pakistan applies its domestic law known as the Foreigners Act 1946. The Foreigners Act’s article 3(2)(c) states that on an order of the federal government of Pakistan, the ‘foreigner’ (a person not a citizen of Pakistan) should remove himself from the territory of Pakistan. There is no legal threshold that the local government of Pakistan must satisfy in order to send back ‘foreigners’, nor is there obligation to provide reasoning for the repatriation. Undoubtedly the redundant nature of this text inked in 1946 raises questions about the relevance of the act in today’s times when human rights are more crucial to the stability of society than ever. Furthermore, as it is legislation and not a treaty between states, the Vienna Convention of the Law of Treaties [“VCLT”], article 53 of VCLT that deems a treaty void if it ‘conflicts with the peremptory norm of general international law’ does not apply. Therefore, unless someone domestically challenges the text of the Foreigners Act, it holds legal validity. Though the text has not been challenged, a few lawyers in Pakistan filed a petition at the Supreme court of Pakistan seeking a restraining order on the Pakistani government’s deportation plan. This is expected to be heard on 1 December 2023 but it might be too late as many Afghan refugees have already crossed the border.

Reverting back to international law and VCLT, the mention of article 53 of VCLT conjointly raises a question of whether the principle of nonrefoulement customer international law is [“CIL”] and hence applies to Pakistan. Whilst many argue it is because it has been accepted by many states, Pakistan may try to use the persistent objector rule to state it did not ratify the Convention on Refugees as it objects to the principles enshrined in it. However, there is no cogent evidence to suggest Pakistan ‘persistently’ objected specifically to the principle of non-refoulement, especially when it was repeatedly labelled as CIL over the years.

Dwelling further, Pakistan ratified the Convention against Torture [“CAT”] in 2010 whose article 3 prevents a state from extraditing a person ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture’. It is not concealed from the world that Afghans flew from their soil due to fear of persecution from the Taliban regime. Basic notions of freedom of expression and women’s right to education are unfounded in the State. They can and have triggered a state of torture. However, it is challenging or unthinkable to imagine that in order to satisfy the threshold in Article 3, CAT, the international community in the future can assess whether the 1.7 million Afghan refugees returning from Pakistan were at risk of being subjected to torture in Afghanistan.

Since 2019 when the International Law Commission in its seventy-first session adopted the Draft Articles on Prevention and Punishment of Crimes Against Humanity [“Draft Convention”], there have been mutual efforts and sessions to adjudicate upon the future of this Draft Convention. Article 5(1) of the Draft Convention on non-refoulement lays a test and states a person should not be extradited to their home state where there are ‘substantial grounds for believing…. he or she would be subjected to a crime against humanity’. Article 5(2) of the Draft Convention assists by stating the grounds shall be determined by taking into account ‘relevant considerations’. Unlike CAT and its threshold on extraditing a person limited to a risk of torture, the CAH are wide ranging and include forcible transportation of the population, which in the present instance are the Afghan refugees.

Ironically on 12 October 2023 Pakistan gave a statement on the Draft Convention on CAH stating that CAH ‘are the most severe transgressions that alarm the international community’ and noting the CAH committed in Palestine and Kashmir. Though there was a failure to introspect and acknowledge that Pakistan in itself is on its way to commit a potential CAH by forcibly transferring Afghan refugees, Pakistan did not show a reservation to Article 5 while it expressed its concerns relating to other articles of the Draft Convention. Unfortunately when and if the Draft Convention comes into force, it may not apply in retrospect, possibly leaving the Afghan refugees without reparation. The Draft Convention has the potential to make an impact and create a platform that allows states to be brought before the ICJ and considering that so many innocent individuals are a victim to CAH be it Afghan Refugees or Palestinians, the international community should consider applying the Draft Convention in retrospect and provide victims with a fair chance to seek justice.

Each human has the right to know why they are subject to a certain treatment in a rational form, especially those who have spent 30 years in Pakistan since the Soviet Invasion of Afghanistan era. The nation’s system failed to document some or most of these refugees. It also failed to adequately focus on repatriating them in a humane way with due process to states except Afghanistan that cater to provide them with a safe livelihood. The lack of a long term plan, national legislation or policy for the governance of refugees meant Pakistan has been unable to deal with the influx of refugees over the years. However, this should not have been a reason to put many lives at risk, at risk of torture, risk of poverty, and risk of separation from families.

Pakistan’s current actions might not get it into legal trouble in the future, but the deceptive statements of standing against CAH whilst committing it would definitely put it in an uncomfortable position on international platforms. This could also suggest Pakistan does in fact accept the principle of non-refoulement to be CIL and hence be bound by it. Whether the matter is picked up by states to be brought before the ICJ or extensively discussed by the UN is a crucial question to ask, but it is essential that international law practitioners at the same time push for states who host refugees to have a fair legal framework to follow. This not only ensures refugees in the future have rights, but it equips them to question their refoulement and have a legal standing.  As the world progresses, it is an alarming concern that refugees may suffer at the hands of host states due to the absence of a binding legal text and policies.

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