The second anniversary of the fall of Kabul marks two years in the United States for Afghans evacuated as part of the U.S. exit from Afghanistan. The evacuation was massive and rapid, but it was also unavoidably chaotic with ad hoc decisions made in haste. Two years later, the U.S. government is reflecting on its success and failures, while Afghans who worked with other countries are looking to international law in their quest to safely leave Afghanistan. Those who made it to the United States are facing deadlines and bureaucracy, and activists are working towards legislative solutions to assist them and the tens of thousands still vulnerable in Afghanistan.
While the evacuation and resettlement of Afghan allies to the United States was a complex operation and brought tens of thousands of people to safety, it was also incomplete, and remains that way two years later. For both those rescued and those left behind, there is work to be done.
Special Immigrant Visas, Parolees, and Renewal
Following the Taliban’s rapid advance across Afghanistan in August of 2021, the Department of State submitted requests for assistance from the Department of Defense to rapidly evacuate U.S. citizens and Afghans at risk. Over 70,000 of these Afghan evacuees would be admitted to the United States under either the Special Immigrant Visa (SIV) program, authorized by the Afghan Allies Protection Act (AAPA) or as “parolees” under the Immigration and Nationality Act. Parolees may be admitted by discretion of the Secretary for Homeland Security for “urgent humanitarian reasons.” However, entry to the United States under that statute is limited to two years.
The AAPA has authorized a limited number of 38,500 SIVs, reserved for individuals who had been employed by the U.S. government and provided “faithful and valuable service” as confirmed by, among other things, Chief of Mission approval. Before August 2021, when officials did not yet anticipate a rapid Taliban advance, there was a plan for a slow, gradual evacuation of SIV holders. This began in July 2021 with just over 200 evacuees. This trickle plan dissolved into mass chaos the next month. When Kabul fell to the Taliban, the number of applicants seeking to establish their eligibility far exceeded the number of authorizations. Approximately 70,000 applicants were still in Afghanistan at that time, seeking relocation to the United States. By the end of August 2021 DOD had evacuated over 120,000 people, which included not just SIV applicants but others at risk as well, 74,000 of which were housed on DOD installations in the United States. Consequently, the majority of Afghan evacuees were admitted as parolees, and now see the de jure expiration of their legal status, and along with it, their employment authorization. Resettlement organizations estimate that approximately 20,000 parolees have sought permanent residency by claiming asylum, but only about 25 percent of those have been approved thus far. The low percentage is principally a result of longer processing times, caused by a surge in applications.
Consequently, the Department of Homeland Security recently created a new process to enable Afghan nationals to renew their parole and extend employment authorizations for two additional years. The process is ostensibly “streamlined and fee-exempt,” but nonetheless creates additional hurdles and anxiety for the tens of thousands of parolees across the United States. This, of course, is to say nothing of the 150,000 additional SIV applicants that remain in Afghanistan; many of whom were perhaps equally deserving of relocation.
U.S. Government Reflections on Evacuation and Resettlement
Two years since the withdrawal, a number of U.S. agencies have published reports on the U.S. mission to evacuate and resettle vulnerable Afghans, named Operation ALLIES REFUGE/WELCOME (OAR/OAW).
Last April the White House released a concise report that was primarily intended to be a defense of its decision to withdraw from Afghanistan, and of the following evacuation and resettlement operations. The report is valuable in that it set out a clear chronology and provided a number of authoritative data points on OAR/OAW. The report also recognized some significant lessons learned that were applied in Ukraine and Ethiopia. For example, DoS has changed its messaging to U.S. citizens abroad in situations of a potentially chaotic evacuation. But many have criticized the report for downplaying the harried nature of OAR/OAW.
Around the same time, Brown University released a study titled “Then We Lost Everything: Afghan Evacuee Experiences of Operation Allies Refuge and Operation Allies Welcome.” The study documented the experiences of many Afghan evacuees and their families, providing details of their traumatic experiences, and what the report described as “lingering sorrow” after arriving in the United States. For example, one man described the chaos at the airport, which forced him to leave his wife behind. Now lamenting the consequences, he told the interviewer: “The situation was very bad. The gates had big crowds of people and [were] dangerous- especially for women. It was safer for her to stay home and for me to come here.” The sorrow, mixed with gratitude, was felt primarily for loved ones left behind, and for uncertainty and loss of control over their situation in the U.S. A woman was quoted by the study authors as saying:
“They were telling us that we will have a great life in US, but when we got to US, they brought us to the camp and it was very dark and hard to live in tents and I was thinking: ‘This is going be my life.’ I was crying, but there was a US soldier that was telling me that ‘you will have a great life and your children are going to go to school here.’ And they were also crying with me, which gave me comfort. This gave me confidence.”
The study generally shows Afghan evacuees remain uncertain about their future, but feel gratitude for having been relocated to the United States.
Soon after these publications were released, the Department of State released a report titled “After Action Review on Afghanistan,” focusing primarily on the Department’s efforts to end the U.S. military mission in Afghanistan in 2020 and 2021. This report made a number of recommendations for future evacuation operations, including better planning “for worst-case scenarios.” It also acknowledged a series of programmatic issues within the Department that contributed to the chaotic evacuation, including a significant backlog in the SIV process, caused by a reduction in resources from the previous administration. While the report rightly praised the efforts of U.S. government officials in facilitating the rapid evacuation of so many, the execution of that evacuation necessarily led to some arbitrary decisions on who would be evacuated and who would be left behind.
Other reports have been released by DOD, DHS and others, attempting to draw lessons learned from a massive and chaotic refugee rescue operation, such as improved interagency cooperation and integrating more planning for worst-case scenarios. However, all of these reports have focused exclusively on U.S. domestic law.
Afghan Refugee Resettlement Under International Law
Meanwhile, a fascinating case came before the High Court of New Zealand , wherein two Afghan nationals argued New Zealand had an obligation under international law to accept them into the country. The plaintiffs and their family members had performed service for the New Zealand Defence Force in Afghanistan, were still there, and were now in grave danger as a result of that previous service. They had also begun applications for admission to New Zealand, but their applications to be admitted as refugees were delayed or denied.
The case is made complex by New Zealand’s domestic immigration process and its strict COVID border closure, which was in-place at the time plaintiffs sought entry to New Zealand. But among other things, plaintiffs argued that New Zealand held a legal obligation to admit the plaintiffs under both international humanitarian law (IHL) and international human rights law (IHRL). The plaintiffs’ IHL references were vague, relying principally on academic commentary about continuing obligations following a conflict, and citing to civilian protection obligations in the Fourth Geneva Convention. These arguments were opposed by New Zealand because, among other things, the conflict in Afghanistan was not an international armed conflict. The High Court unsurprisingly ruled against the plaintiffs, but not without a measure of sympathy on this point, stating
It is clear that a State such as New Zealand can have responsibilities to civilian populations during an armed conflict. Given the nature of the conflict in Afghanistan it is an obligation that would most likely arise as a matter of customary international law. I also accept that such obligations could potentially continue after the cessation of hostilities. But without finally determining the point the circumstances here seem to me to be too remote for there to be any continuing international law obligation on New Zealand to effectively protect those remaining in Afghanistan.
As for IHRL, plaintiffs pointed to the right to life under the International Covenant on Civil and Political Rights (ICCPR), and the UN Human Rights Committee’s ruling in AS v. Italy. In that case, the committee found that Italy had breached the right to life under the ICCPR by failing to respond promptly to a vessel in distress, notwithstanding its location outside Italy’s territorial sea. The case is more nuanced than the plaintiffs allow, but it does present an interesting challenge to New Zealand’s denial of an obligation to Afghan nationals in Afghanistan, due to jurisdictional limits. However, again the High Court rejected plaintiff’s claim, concluding the connection between New Zealand and the plaintiffs was less direct and immediate than the facts presented in AS v. Italy. The Afghan plaintiffs were certainly much farther removed from New Zealand than the plaintiffs in AS v. Italy. But the Afghans, or their family members, had worked directly with New Zealand Defence Forces, and were now vulnerable to attack because of that work.
Ultimately the High Court did side with the plaintiffs, in that they ordered the New Zealand Government to fully process their applications for visas, notwithstanding COVID border restrictions. But the case also raises novel questions of international law in the context of vulnerable or displaced persons who are placed in peril because of their assistance to a retreating foreign force. The moral – and perhaps international, legal – obligations a retreating force has to vulnerable persons who had relied on their protection deserves further consideration. Historical practice seems to acknowledge the obligation is felt keenly by those retreating forces.
Potential Legislative Solutions
Many advocacy groups have sought new legislation to solve these concerns, such as the draft Afghan Adjustment Act introduced in the Senate last July. The draft legislation would increase the number of authorized SIVs and require DoS to expedite processing of SIV applications. It also seeks to expand the eligibility criteria under the AAPA. However, it’s unclear whether the draft legislation will survive. Although there may be reason for optimism, previous, similar attempts were defeated in committee. Regardless, all of these and other efforts show that the struggles of Afghan evacuees in the United States, and the pleas of 150,000 SIV applicants still in Afghanistan, pull at the heart strings of so many who served there. They will continue working toward a permanent solution.