In 2011, the internal tensions in Syria which had taken place earlier through rebellions and uprisings turned into a civil war and it still continues in Syria today. The matter of violation of human rights in Syria which has been taking place for a long time has not been resolved, and by the resistance of the people against the regime turned into a civil war, and later the war has spread to various regions of the country. With the onset of the civil war, the state of chaos which was spreading rapidly in the country and the continuing problems have made it difficult for the people to live in their countries and has caused them to take refuge in other countries.
In the early periods of the Syrian Civil War, roughly about 300 or 400 Syrians have come to the Hatay Cilvegözü border checkpoint in Turkey on 29 April 2011. With the continuation of the Civil War, this number has reached 147.107 in the light of the information dated 27 December 2012 according to the report of the United Nations High Commissioner for Refugees. This number has increased day by day and in the light of the most recent data, the number of Syrians taking refuge in Turkey has been indicated as 3.684.412 persons as of the date of June of 2021.
The contradiction of the Syrian refugees with the Turkish Laws due to the problems that they encounter in Turkey and their repatriation back to Syria due to residence in cities other than the cities where they have registered have caused unjust suffering for the Syrians.
This article aims to discuss the repatriation of Syrians in light of principles of international law, especially non-refoulement principle. It is debated whether it is legitimate to send Syrian refugees to Syria. The conditions under which the return of the Syrians could occur and the defenses of the parties were mentioned.
General Outlook of the Status of Syrians Who Have Taken Refuge in Turkey
First of all, it is necessary to mention and discuss the status of Syrians in Turkey. In regards to the rights and protections of the refugees, the “Convention Relating to the Status of Refugees” or the UN Refugee Convention of 1951 indicate the status of the persons who would obtain the status of refugee, and there are 149 countries that have signed this convention or protocol.
Turkey has signed the Convention which is of great significance in terms of the law of refugees on the date of 24 August 1951. However, the Syrian people who took refuge were not accepted as refugees within the scope of the Convention dated 1951. Only the people who come from the European Countries were regarded as refugees in the Turkish Law.
Another important point is that although Turkey has approved this Convention, Turkey does not recognize persons coming from countries other than Europe such as Syria, Iraq, Afghanistan, and Eritrea as refugees.
In this regard, rejection of the status of Syrians living in Turkey as refugees, the increase of the number of persons taking refuge and migration since 2011, location of Turkey in a significant point between the east and the west, and rejection of Turkey of migration coming from certain countries in terms of its location for the purpose of halting migration all led to a solution for the Syrians who took refuge in Turkey and the Law on Foreigners and International Protection numbered 6458 was ratified on the date of 11 April 2013.
The Syrians who took refuge in Turkey were taken under the status of “Temporary Protection” within the scope of the Law on Foreigners and International Protection numbered 6458.
The European Council has defined this concept by approving the Temporary Protection Directive in 2001 due to the asylums that took place because of the events that happened in Yugoslavia in the 1990s and the arising events that happened after the disintegration of Yugoslavia.
According to the Temporary Protection Directive of the European Council: In the sub-article (a) of the 2nd Article of the Directives titled “Definitions” temporary protection has been defined as follows: “(a) “temporary protection” means a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular, if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection;”
Temporary protection; in the case of the existence of mass influxes, and of difficulties in determining individual statuses, it is a way that allows providing temporary solutions. Persons who would obtain temporary protection will be able to benefit from rights regarding health, education, and access to the job market, social assistance and services, translation service, and others. The Syrians who took refuge are also taken within the scope of those services.
Repatriation as a Matter of Dispute and Principle of Non-Refoulement
The Syrians who stay in Turkey under the status of temporary protection became subjected to unjust treatment when they are repatriated back to their country in cases where contrarieties against the Turkish Laws take place while they reside in Turkey, committing crimes, the emergence of irregular migration when they move to other cities from the cities where they registered and the economic situation in Turkey.
The Syrians who took refuge in Turkey indicate that they want to reside in Turkey while some of them are being sent to their country due to the experienced circumstances because of the continuation of the state of chaos in Syria and the big problems that this chaos would introduce, and certain conflicts and problems arise because the Turkish Government has been attempting to prevent irregular migration and crime.
The refugees who come to Turkey under the status of temporary protection continue their lives where they have been residing due to the events that lead to migration, and they are under the protection of the country where they took refuge. At the same time, the principle of non-refoulement also exists in the Turkish Laws, which is the international principle regarding the prohibition of their repatriation back to the country where they came from. According to the 4th Article of the Law on Foreigners and International Protection, it is indicated that: “…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.”
In regards to the prohibition of repatriation, although the matters that are related to only the refugees may find an area of application in the United Nations Refugee Convention which occupies an important place in the Law on Refugees, in the current situation, there are opinions regarding that the matter, namely the matter of prohibition of repatriation, has become a rule of international customary law, and it would be applied to all foreigners.
As the Syrians who took refuge in Turkey migrated in masses and according to the Turkish Legal Regulations they are under the status of temporary protection, they will be able to benefit from social rights just like the ordinary citizens of the country upon the reception of those people into the country.
Under the current conditions, the refugees may experience difficulties in the stage of adapting to social life. Refugees commit actions that are against the legal order of the country where they seek refuge, their repatriation back to their homeland is prevented due to the crimes that they commit or due to other circumstances due to the European Convention on Human Rights, United Nations Refugee Convention, international legal norms and even the local laws of the countries.
In fact, the protective country should not repatriate the refugees seeking refuge or persons under the temporary status of protection under the possibility of receiving the tiniest unjust treatment or life-threatening situation because repatriation would constitute a contrariety to the international legal principle.
Repatriation of the Syrians under the status of temporary protection back into Syria especially by taking the international conventions of which Turkey is a party into consideration is an inappropriate decision and is against international law.
Mr. Necip İlker Karaoğlan has been practicing law in Turkey for about 16 years. He provides legal advice to foreign institutions and individuals. He has four published books and many articles on foreign legal systems. He holds degrees from Harvard University in the field of American Bureaucracy, Civil Rights, and American Constitutional Law. He is a member of the board of the Italian Cultural Center and legal counsel.