After Regime Change: United States Law and Policy Regarding Iraqi Refugees, 2003-2008

Abstract

This paper critically examines the legal and public policy discourse in the United States and the regarding the rights of Iraqi refugees under international law. A sharp contrast has developed between the declarations of U.S. State Department officials and immigration courts on the one hand, and those of United Nations and international non-governmental organizations (INGOs) on the other, regarding the status of displaced Iraqis under the U.N. Convention Relating to the Status of Refugees and its 1967 Protocol, and the U.N. Convention on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. In the United States, the State Department and some immigration officials sometimes characterize religious minorities in Iraq as victims of random violence manifesting little or no religious or sectarian targeting. Similarly, at least one U.S. Court of Appeals and the U.S. Department of Justice concluded in the 2005-2008 time frame that because multi-national forces (MNF) led by the U.S. and U.K. were guaranteeing Iraqis' security, even Iraqis who could prove past persecution by the Iraqi government were not refugees, and were not entitled to relief under the Convention Against Torture, which protects persons from being deported to face a risk of torture. As a result, from 2003 through 2006 the United States resettled only a few hundred out of the two million refugees that have fled Iraq since the war.

My examination of the public record reveals that these arguments by the State Department and U.S. immigration judges downplaying the scale of the Iraqi refugee crisis are inconsistent with the findings of U.N. bodies, INGOs, other U.S. courts, the State Department’s human rights division, and the U.S. Commission on International Religious Freedom, all of which have documented an increase, rather than a decrease, in persecution on religious, political, and social grounds since the MNF entered Iraq in 2003. U.N. bodies, INGOs, and the press have characterized the two million Iraqis that have fled Iraq since 2003 as refugees from persecution, and have documented that Iraqis murdered on account of their religious or political affiliation are as diverse as a Shi’a Ayatollah, Catholic priests, the head of Iraq’s Communist Party, a deacon of the Mandean faith that follows the teachings of John the Baptist, and, in one day, over 400 Yezidi believers in an ancient angelic faith. The U.N. High Commissioner for Refugees has recognized that Assyrian Christians accounted for 40 percent of the refugees fleeing Iraq in 2006. The U.S. State Department’s human rights division and U.S. Commission on International Religious Freedom have found that Ministry of the Interior “death squads” targeted Sunnis and Baghdad residents with impunity, that hundreds of mosques were destroyed in sectarian violence in 2006, and that Assyrian Christians, Yezidis, and Mandeans were suffering systematic attacks and threats. As such reports gained broader circulation, U.S. immigration courts improved their analysis of the situation in Iraq in the 2007-2008 time frame, and began to reject sweeping claims by U.S. immigration officials that there was no more religious persecution in Iraq.

Keywords: Iraq, refugees, torture, persecution, extermination, genocide, sectarian violence, Baath, United Nations, Assyrians, Chaldeans, Yezidis, Mandaeans, Shabaks

JEL Classification: K33