Introduction
How do we promote respect
for human rights in countries which are gross violators of human rights?
The very nature of gross violator regimes means that internal mechanisms
do not work. One can not realistically hope for law reform, court
access, judicial independence, media reporting, internal human rights
activism, or a change of government through free elections.
We are left with external
recourses - human rights reporting, bilateral and multilateral engagement,
sanctions, foreign or international civil or criminal remedies, and
refugee protection. To make respect for human rights work, we have to
invoke every mechanism, every standard available. That is easier
said in done.
In particular, the linkage
between refugee protection and respect for human rights though strong
in law is weak in fact. The notion of human rights is built into
the refugee definition. A refugee is a person with a well founded
fear of persecution. Persecution is a serious violation of any
human rights. Concern about human rights violations in a country
should translate into refugee protection for nationals from that country.
Yet, often that does
not happen. One reason is the separation between the arms of government
dealing with human rights and refugees. International human rights
promotion is typically the domain of departments of foreign affairs.
Refugee protection falls within the bailiwick of departments of immigration
or public security.
While there is an administrative
logic in this sort of bureaucratic separation, it makes divergence between
promotion of respect for human rights and refugee protection all too
easy. Yet, the concepts can not be separated. If we want
to promote human rights, we have to protect refugees.
That is obviously true
for the individual claimant. If a person has a well founded fear
of persecution, and yet the person is returned to the country fled,
then there is a real risk that the human rights of the individual will
be violated. Protecting the person prevents the infliction of
human rights violations on him or her.
Yet, there is more to
the linkage in that. There is an overall, aggregate linkage.
Protecting refugees will enhance respect for human rights in the country
fled. Not protecting refugees increases the overall level of human
rights violations in the country fled, not just against the refugee
claimant returned, but generally.
The Holocaust
Nazi Germany annexed
Austria March 12, 1938. This annexation raised the prospect of
a dramatic immediate increase of Jewish refugees, adding Austrian refugees
to the already large number of German Jewish refugees. The Government
of the United States convened a meeting in Evian, France, July 1938,
of the governments of thirty two countries to address the issues of
Jewish refugee protection and resettlement. The meeting was a bust.
No country was willing to offer resettlement places to Jewish refugees.
Hitler said in 1922
that the Jews "cannot protect themselves and no one will stand
forth as their defenders." A German newspaper after the Evian conference,
in an article under the heading "Nobody wants them", wrote
that the development of the Evian Conference was very embarrassing for
the Marxists, because as they themselves acknowledged, "it leads
to an international legalization of German antisemitic policy."1
Annette Shaw wrote that the Evian Conference gave Hitler "the green
light to believe he could do whatever he wanted to the Jewish people
as nobody wanted them and this resulted in genocide"2.
Kristallnacht, the night
of broken glass, November 9, 1938, prompted a new wave of refugees.
After Kristallnacht, the German government increased its push to expel
Jews. The Nazi government wanted to exploit the unwillingness of other
nations to admit large numbers of Jewish refugees to justify the Nazi
regime's anti-Jewish goals and policies3.
The Steamship St. Louis
sailed in May 1939 with a German crew and a German flag from a German
port, Hamburg, with 938 Jewish refugees to Cuba. By May 1939,
Germany was a Nazi totalitarian state. The ship left because the
Nazis wanted it to leave. Indeed, some of its passengers had been
expelled by order from Germany, required to leave within a fixed time.
The Government of Cuba
had issued landing certificates and transit visas. The refugees
planned to stay in Cuba temporarily while applying for US visas.
The Cuban government
revoked the landing certificates without informing the passengers shortly
before the ship left and, when the ship arrived, refused to allow the
passengers to land. German Propaganda Minister Jospeh Goebbels
was active in fomenting Cuban opposition to the refugees4.
Neither the US nor the
Canada would take the passengers. The ship was forced to return
to Europe. 254 of its passengers later died in the Holocaust.
The voyage of the St.
Louis was a big news story. The media sent the story around the world.
The failure of the passengers to get protection was a vivid specific
reminder and repetition of the failure of the Evian conference.
The St. Louis was Evian
brought home. What diplomats and governments learned from Evian,
the public learned from the voyage of the St. Louis. The voyage
of the St. Louis put names and faces and individual stories on the Evian
conference failure.
The Nazis learned from
the Evian conference that there was no will to protect refugees.
That lesson served their global antisemitic agenda. The Nazis
had nothing to do with the convening of the Evian conference; but they
were tacit partners in the voyage of the St. Louis. By the time
the St. Louis set sail, they knew that the will to protect Jewish refugees
was not there and that they could benefit from the public display of
that unwillingness.
The Holocaust was difficult
to anticipate before it happened. Even today, in retrospect, we
shake our head in amazement when we learn what took place. All
the same, by May 1939 and the voyage of the St. Louis, the brutality
of the Nazi regime towards Jews was plain to see. It was obvious
that Jews needed protection from Nazis even if governments at the time
did not know how badly that protection was needed.
The Nazis learned from
Evian/St. Louis that global objection to their human rights violations
was so much hot air, that, when it came to doing something real, nothing
happened. The failure of the Evian conference and the voyage of
the St. Louis told the Nazis that they could victimize the Jews with
impunity. There would, to be sure, some pro forma objections
for public consumption. But they would not be meant; nothing would
follow from them.
These failures though
told the Nazis more than that. World War II was, after all, not
a classic war where states were fighting over boundaries or assets.
It was a war unlike any other. The Nazis sought world domination
to kill Jews everywhere. They invaded foreign countries to kill
their Jews. Lucy Davidowicz, in her book The War against the
Jews 1933-1945 writes that, in the minds of the Nazi German Leaders,
World War II was a cover for its planned murder of the Jews5.
For the Holocaust, cooperation
of local populations was essential. The German Nazis needed the
local populations to tell them who the Jews were, where they were.
Because the sheer scale of the task of slaughtering all the Jews, the
German Nazis needed local help - for rounding up, for containment,
as additional fingers on the triggers.
The failure of Evian
told the German Nazis that this local cooperation would be there.
Governments at Evian refusing to commit to protect Jewish refugees were
reacting to the antisemitism of their populations back home. The
message the German Nazis got from Evian was that there would be plenty
of willing hands everywhere to help them construct the machinery of
Jewish death.
When a person fails
to come to the help of someone in dire straits, despite the ability
to do so, the person becomes complicit in the persecution. If
foreign populations were not willing to protect Jewish refugees when
they were free to do so, when information was not limited by propaganda
control, if foreign populations were willing to become complicit in
Jewish persecution when they had every capacity to do otherwise, the
likelihood of their complicity in persecuting the Jews once Germany
seized control of their countries seemed great.
The failure of Evian
then was a precursor both to the Holocaust and World War II. Evian was
a green light for the German invasion of its neighbours, because Evian
told the German Nazis that their goal of invading foreign countries
to kill its Jews with local help could be realized.
Some of the St. Louis
passengers turned back from Cuba and North America found havens in European
countries not then under Nazi rule. Great Britain, the Netherlands,
Belgium and France all took in some of its passengers (but not enough,
even in combination, to help all). This was so when the United States
was prepared to take none.
This comparative reluctance
of the US to protect the St. Louis passengers was both a precursor and
a signal of American reluctance to get involved in World War II.
The war against the Jews was, the voyage of the St. Louis told the German
Nazis, a war that Americans were not that interested in fighting.
The message that the voyage of the St. Louis sent, that Americans were
even more reluctant than Europeans to help Jewish victims, emboldened
the German Nazis. Like the Evian conference failure, it made World
War II more likely. It was another green light for the German
Nazis for both the Holocaust and World War II.
The failure to protect
refugees did not end with Evian and voyage of the St. Louis. It
continued throughout World War II, throughout the Holocaust, after governments
knew that the Holocaust was happening. As the War progressed and
the number of states not under Nazi rule decreased, the space for Jewish
refugees diminished. But those states that were left who could
take in Jewish refugees would not do so.
After the Holocaust
began, the number of Jews who were able to escape to safety was small.
At that point, even if every Jew able to escape the Nazis was given
refuge, the number protected would not have been significant.
But the message would have been large. The failure to protect
this small member contributed to the devastation of the Holocaust, added,
in the millions, to the numbers killed.
The Holocaust began
through bullets. Roving killing squads, the Einsatzgruppen, shot
the Jews locally, wherever they could be found. 2.2 million Jews
were killed this way. The Nazis eventually came to the conclusion
that this process was too slow, too inefficient6. There
were too many Jews spread too widely for this technique of slaughter
to be effective in killing all Jews in a reasonable period of time.
The Nazi leadership
decided to shift to concentration camps and poison gas. Jews would be
rounded up and sent by rail in boxcars to death camps. At the
camps, they would be herded into showers and killed en masse rather
than as the Einsatzgruppen did, one by one.
This plan allowed for
a quicker kill rate. But it was much more vulnerable to interruption
from the Allies. The Allies could bomb the camps and the rail
lines and stop or severely hamper the whole enterprise. For the
Nazis to shift from the roving killing squads to the death camps, they
had to be confident that the Allies would not do that.
The overconfidence of
the Nazis about their own military prowess is part of the story.
But it is not the whole story.
The failure of the Allies
to protect Jewish refugees even as the Holocaust was happening told
the Nazis that their death camp plan would be secure. Though the
Holocaust, as it was happening, was not front page news around the world,
there was enough information available about it for the Allies to know
that it was occurring and for the Nazis to know that the Allies knew.
For the Allies to offer
havens to fleeing Jewish refugees involved no military risk. If
the Allies were not prepared to protect Jewish refugees at no risk to
themselves, the likelihood of their going on bombing missions against
death camps and rail lines to the camps, where the military risk to
the missions would be real, was small.
So, one of the pillars
of Auschwitz was the failure to protect Jewish refugees. The refusal
of the Allies to offer sanctuary to fleeing Jewish refugees while the
Einsatzgruppen went about their deadly business told the Nazis that
the gas chambers could be built and used in tranquillity.
The lesson then from
the Holocaust is plain. To prevent massive human rights violations,
we have to protect refugees. Failure to do so jeopardizes not
just the refugees refused. It puts at risk the whole group from
which they come.
Burma and Sudan
Even though the connection
between refugee protection and combatting human rights violations seems
pretty straightforward, it is not made the way it should be. Let
me address five modern examples - Burma, Sudan, Iran, China and Sri
Lanka.
In the case of Burma
and Sudan, the international community is vociferous in condemning their
human rights violations. There is a general consensus within
the international community that Burma and Sudan are grave violators
of human rights. Yet, if one keeps in mind the tight connection between
combatting human rights violations and protecting refugees, the international
community has failed the victims of Burma and Sudan in at least two
ways.
One is the total absence
of reference to the need to protect refugees in the many international
statements condemning the gross violations of these two regimes.
In the case of Burma, the United Nations Human Rights Council has appointed
a rapporteur, called a special session7 and passed a sequence
of resolutions unequivocal in their condemnations. So has the
General Assembly.
Take for instance the
United Nations General Assembly resolution passed in 2010 condemning
human rights violations in Burma8. The resolution calls
on Burma to stop producing refugees9 but says nothing to
other countries about protecting them.
The resolution welcomes
the role played by countries neighbouring Burma and members of the Association
of Southeast Asian Nations in support of the good offices mission of
the Secretary-General10 but says nothing about the role played
by countries neighbouring Burma and members of the Association of Southeast
Asian Nations in protecting Burmese refugees. That role would,
admittedly, hard to welcome without reservation since the treatment
of Burmese refugees by Burma's neighbours is less than ideal.
In Thailand refugees
are kept in restricted access camps near the Burmese border. The Thai
Committee for Refugees reported in May 2011 that the Thai army had stopped
distributing food to the refugees and had tried to force them back to
Burma11. UN silence on this sort of behaviour when
the UN is addressing human rights violations in Burma itself says something.
Human rights promotion
and refugee protection at the UN as with national governments, live
in different worlds. They have different instruments, bureaucracies
and mechanisms. Practically the two are linked; but in the governmental
and intergovernmental world, they are far apart. This separation
weakens both, undermining both refugee protection and human rights promotion.
The Security Council
in March 2005 referred the situation in Darfur, Sudan to the International
Criminal Court in the Hague12. The Court in March 2009
issued an arrest warrant for the Sudanese president al Bashir.
None of the many Security Council resolutions about Sudan calls on member
states of the UN to offer protection to Sudanese refugees.
It is not as if the
issue of refugees is ignored. Take for instance the Security Council
Resolution on Sudan of August 31, 200613.
That resolution addresses
the topic of refugees from a variety of perspectives. It calls upon
the Government of Sudan to ensure access of relief personnel and the
delivery of humanitarian assistance to refugees. It decides that
the mandate of the United Nations Mission in Sudan should include facilitating
voluntary return of refugees, protecting returning refugees, and establishing
a presence in Chad and Central African Republic refugee camps14.
The resolution requested the UN Secretary-General to report to the Security
Council on the security of civilians in refugee camps in Chad15.
Yet, despite all the
many ways in which the Sudanese refugee situation is addressed, there
is not even a hint of a call on states to protect these refugees. There
is not even a word of commendation for those states who have done so.
The notion that there might be some sort of linkage between other states'
protecting Sudanese refugees and ending human rights violations in Sudan
is totally absent.
A second way in which
the international system fails to make the connection between promoting
human rights and protecting refugees is the poor record of refugee resettlement
even of nationals from countries with the worst human rights record.
Every year the Office of the United Nations High Commissioner for Refugees
identifies cases in need of resettlement. It has many such cases
of Burmese and Sudanese. Yet, year after year, the settlement
targets the UN sets are met with great difficulty, if at all.
In 2009, the Office
of the United Nations High Commissioner for Refugees identified 30,542
Burmese in need of resettlement and placed 24,78416.
5,758 identified as in need of resettlement, or about twenty percent
of those in need of resettlement were not placed.
There is a similar story
for Sudan. In 2009, the Office of the United Nations High Commissioner
for Refugees identified 1,351 Sudanese refugees in need of resettlement
and placed a number so small that the figure did not make the UNHCR
list of top ten nations. Tenth, in terms of placements, was Ethiopia
refugees with 876 placements. Sudanese refugees must have been
less.
What is striking is
not only that the placement failure rate for both sets of refugees is
so high, but also that the absolute numbers are so low. The failure
of the international community to offer resettlement to this tiny number
of refugees already identified by the UN as needing resettlement speaks
volumes about the international community disconnect between human rights
and refugee protection.
Moreover, what are the
regimes in place in Burma and Sudan expected to make of these resettlement
failures? The message they convey undercuts the efforts of the
international community to enhance respect for human rights in these
countries.
Iran
Iran, like Sudan and
Burma, is the target of international human rights condemnation. The
United Nations General Assembly in recent years has passed, each year,
a resolution condemning human rights violations in Iran. This past March
2011 the United Nations Human Rights Council decided on the appointment
of a special rapporteur for Iran, the first new special mechanism created
by the Council since its inception in 2006.
Yet, when it comes to
refugee protection and resettlement, there is something amiss, the refusal
to protect the residents of Camp Ashraf in Iraq, members of the People's
Mujahideen of Iran (the PMOI) or the Mujahideen al Khalq (MEK).
The PMOI has been listed as a terrorist entity in the European Union,
Canada, the United States and Australia.
A bit of explanation
of the name is appropriate. The word "mujahideen" has different
connotations in Arabic and Farsi. In Arabic, the word "mujahideen"
has come to mean "fighters for God". In Farsi, "mujahideen"
are considered "fighters for freedom".
The name, to those familiar
with the Arabic connotation of the word "mujahideen", gives
the impression that the group is Islamic fundamentalist. However,
it is just the opposite, a secular movement. Indeed, that is the
main objection the mullahs have to the PMOI, that they are not religious.
In the exaggerated rhetoric
of the mullahs, the PMOI are enemies of God. Being an enemy of
God is an offence in the Iranian criminal code, punishable with death.
The regime has murdered adherents of the PMOI in the thousands because
of their secular beliefs.
It is hard to know why
the Western listing of the PMOI as a terrorist entity occurred.
The listing states have not identified the PMOI with any terrorist acts.
Writer Ali Safavi, in a sequence of articles in the Huffington Post,
has run through a speculative list of possible acts that the listing
states might have, in secret, attributed to the PMOI and shown that
they were either not terrorist acts or that they were acts perpetrated
by some other entity.
When the matter has
gone to court, as it did in the United Kingdom and the European Union,
the courts, after looking behind closed doors at the security service
files of the listing states, have said publicly that there is nothing
there. The European Union, as a result of these court cases, has
now ended the listing of the PMOI as a terrorist entity.
The most plausible explanation
for the listing is that it was done as a sop to the regime of the mullahs
in an attempt to further negotiations on the nuclear file. That
strategy, if that is what it was, has been ineffective. Iranian
nuclear weapons development continues.
Though there are PMOI
elsewhere, the leadership of the PMOI is concentrated in Camp Ashraf
in Iraq. The Camp has 3,400 residents. The residents are
unarmed and have renounced individually the use of force.
When the Multi-national
Forces under American leadership controlled Iraq, the residents of the
Camp were designated as protected persons under the Geneva Convention
for the Protection of Civilians in Time of War. With the withdrawal
of the American troops, the protection these troops gave has gone. A
United Nations permanent observer post stationed in the Camp left when
the Americans left.
The current Iraqi regime
is friendly to the Government of Iran. Many of its members lived in
Iran during the rule of Saddam Hussein.
Iraqi forces have set
around the Camp hundreds of loudspeakers blaring threats of mass killing
around the clock, a form of psychological torture. Access of family,
friends, media, lawyers and visiting dignitaries is denied. Materiel
for maintenance of the Camp (which is in reality, a village with permanent
structures) is blockaded. The residents are denied egress for medical
help and medical personnel are denied entry. The Iraqi regime
has threatened the residents of the Camp with forcible relocation to
an uninhabitable, abandoned desert jail, far from any other habitation.
Iraqi forces have attacked
the Camp violently on a couple of occasions, in July 2009 and April
2011. In the first attack, the attacking forces killed eleven
innocents and wounded five hundred. Videos show that many were
killed and injured by armed Iraqi vehicles running down and running
over scrambling, fleeing residents. In the second attack, the attacking
forces killed thirty six innocents and wounded three hundred and fifty.
The Office of the United
Nations High Commissioner for Refugees (UNHCR) has not recognized the
residents of the Camp as a group as prima facie refugees.
The UNHCR is concerned that the Camp maintains a military character
even though the PMOI renounced the use of force now ten years ago, in
2001.
The UNHCR insists that
those who want to make refugee claims leave the Camp. This
amounts to a request that the residents of the Camp abandon their right
to freedom of association in order to assert their right to protection.
Some two hundred residents
nonetheless did leave the Camp and made claims. The UNHCR recognized
them all as refugees. But refugee resettlement countries offered
only two of this sub-group resettlement places.
How seriously does the
Iranian regime of the mullahs take the international opposition to its
human rights violations, when it can attack and kill abroad through
surrogates what it sees as its principal political opponents and there
is no serious attempt to offer the victims protection? Promoting
human rights in Iran here means, as it does elsewhere, protecting refugees
from Iran.
China
China is too big a player
on the international scene for there to be any hope of a resolution
condemning its human rights violations in the Security Council, the
General Assembly or the Human Rights Council. In the Security Council,
China has a veto. In the General Assembly and Human Rights Council
it carries too much weight, has too many friends for there to be a hope
of condemnation.
China is subject to
the Universal Periodic Review, the thematic mechanisms of the Human
Rights Council and the UN Committee against Torture established under
the Convention against Torture, since China has ratified that Convention.
But China just shrugs off the criticism that these mechanisms generate.
Because the options for condemning China's human rights violations are
limited, the importance of the remaining options is heightened. In that
context, refugee protection as a form of human rights protest looms
large.
Yet China generates
a refugee population which is far too often denied protection in asylum
proceedings for unsound reasons. I refer in particular to practitioners
of Falun Gong.
Falun Gong is a set
of exercises with a spiritual foundation, begun in 1992 with the teachings
of Li Hong Zhi. First encouraged by the Communist Party of China
and the Government as beneficial to health, its rapid spread, its spirituality
and its non-Communist ideology eventually generated jealousy and fear
amongst Party cadres that the Party would lose its ideological supremacy.
The practice in 1999
was banned. Practitioners were arrested and asked to recant.
If they did not, they were tortured. If they did not recant after
torture, they were disappeared. The disappeared, in the tens of thousands,
have been killed for their organs sold at high prices to transplant
patients17. They represent, according to the UN Special Rapporteur
on Torture, two thirds of the torture victims in China. Thousands
of documented individual named cases have died through this torture.
They represent about half of those detained in the arbitrary detention
re-education through labour camps, in the hundreds of thousands.
Simply practising Falun
Gong, if you are in China, puts you at grave risk. Protesting
the violations within China is pointless. Those who do become
victims themselves. The most notable such victim is Gao Zhisheng,
not a Falun Gong practitioner, but rather a human rights lawyer who
protested the victimization of Falun Gong. For that, he was disbarred,
his staff was fired and his office was closed down. He was beaten repeatedly,
tortured severely and disappeared. His family fled China.
To this day, his fate is unknown.
Given that this is so,
as long as a refugee claimant establishes credibility, that he or she
really is a Falun Gong practitioner, that should be enough. In
more than one country, in spite of all this, sound, real, legitimate
refugee protection claims of Falun Gong practitioners are rejected for
the flimsiest of reasons. The typical rejection goes something
like this: Falun Gong is an organization with a membership; the claimant
is an ordinary member and not a high profile leader; only the high profile
leadership is at risk.
This reasoning is unreal.
Falun Gong is not an organization with a membership. It is a set
of exercises with a spiritual foundation. It is as improper to
refer to someone as a Falun Gong member as to refer to someone as a
yoga member or a tai chi member.
There are, outside of
China, some voluntary associations of some Falun Gong practitioners.
However, there is no obligation to join any of them to practice the
exercises. And these associations have no counterparts within
China.
Some Falun Gong practitioners
are persecuted worse than others. But the reason has nothing to
do with their place in a non-existent organizational hierarchy.
It has rather to do with the tenacity of their beliefs. Those
who abandon the practice of Falun Gong out of fear are left alone.
Those who refuse to recant are tortured, arbitrarily disappeared and
killed.
Individual protests
against Chinese government persecution manifest some level of organization,
in the sense that some people may tell other people of the protest.
Yet, because there is no formal organization, no one has particular
titles or duties. Individuals take upon themselves, event by event,
to do what they want.
The only way someone
can obtain a high profile is through media exposure. The Government
of China censors any news about the Falun Gong and blocks out any outside
news. It is impossible for a Falun Gong practitioner to obtain a profile
in China as a practitioner.
Moreover, in light of
the banning and severe repression of Falun Gong, even those most active
in protesting the brutality of the regime do everything they can to
maintain a low profile. Anything else would put them at risk.
The Government of China
knows who is a practitioner through monitoring e-mails and telephone
conversations, spying, informing and denunciations extracted through
torture. These techniques know no hierarchy. The Government
of China has an extensive monitoring, spy and informant network both
at home and abroad whose primary task is gathering information about
the practice of Falun Gong. Practitioners in turn react by being
as secretive as possible, keeping quiet their practice and protest from
as many people as possible, including immediate family members.
It is impossible to
say that only some practitioners and not others would come to the attention
of the Government of China through its monitors, spies, informants and
torture victims. Monitoring, spying, informing and torture can
potentially lead to the detection of any practitioner. Even if
a practitioner does the exercises in his or her home and an informant
sees it through the window, the informant can report the practitioner
to the police who then, if they are doing their job, will come to take
the practitioner away.
A misplaced refusal
of a Falun Gong practitioner refugee claim is not only a tragedy for
the claimant. It is a license to China to continue to inflict
violations on Falun Gong practitioners. If refugee protection
countries care to protect only Falun Gong claimants who are high profile
leaders of Falun Gong organizations, an empty category, then China can
persecute Falun Gong practitioners with impunity.
Sri Lanka
The Government of Canada
in October 2010 proposed legislation which manifests a regrettably all
too common trend, discouraging smuggling by punishing the smuggled18.
The proposed law provides for mandatory twelve months detention for
every member of a designated arriving groups of persons unless the refugee
protection claim is finally determined earlier or the cabinet Minister
responsible decides that there are exceptional circumstances which warrant
the person's release19. It further prohibits
members of the designated groups from obtaining permanent residence
until five years after a claim for refugee protection20.
The delay in obtaining permanent residence would lead to a delay in
family reunification. The proposed legislation denies to the designated
claimants the right to appeal negative decisions other claimants have21.
The legislation supposedly
anti-smuggler but in fact anti-smuggled died in the last Parliament
because in that Parliament the Conservative government was in the minority
and none of the opposition parties would support it. The Conservative
government in this Parliament has a majority and has reintroduced the
legislation22.
Designation of an arriving
group would be by the responsible Minister and not the cabinet. The
legislation sets out designation criteria, but neither the human rights
record of the country fled nor the prior position of the Government
on that record are proposed criteria.
Although the legislation
is not country specific, it was introduced in response to an arrival
in October 2009 of 76 smuggled Tamils aboard the MV Ocean Lady.
While it is uncertain who in the future would be designated under the
legislation, it is apparent that the government of the day, if the legislation
had been in place at the time, would have designated this group of arrivals.
Sri Lanka ended in May
2009 a long brutal civil war between Sinhalese and Tamil forces.
The war, from 1983 to 2009 resulted in 80,000 deaths. It ended
in a frenzy of killing and then mass detention of Tamil civilians.
Refugees fled the war
and its immediate aftermath every way they could, often by paying smugglers.
One group of smuggled refugees arrived on the MV Ocean Lady.
One can see the problem
this sort of legislation poses for human rights promotion. It violates
the rights of refugees. It mistreats people who have already suffered
far too much, piling mistreatment in the country of asylum onto the
mistreatment in the country fled.
The civil war in Sri
Lanka was sparked by systematic discrimination and exclusion by the
Sinhalese majority against the Tamil minority. The Tamil Tiger
response, terrorism and suicide bombings, in order to achieve a separate
Tamil state was unconscionable, a crime against humanity, a cure worse
than the disease. The violent overreaction though does not excuse
the mistreatment which generated it. Now that the Sinhalese majority
has won the civil war, the very mistreatment of the Tamil minority which
engendered it has become worse. This is a victory without magnanimity.
The Canadian legislation
is bad in principle. But it is even worse in context. It
says to the Sinhalese government, go ahead, mistreat the Tamil minority.
We don't care.
Because the legislation
was introduced in response to the Tamil arrivals, the legislation sends
a message to Sri Lanka that we are not concerned about the mistreatment
of your Tamil population. We are more concerned about our own
borders and entry policy than what happens to Tamils back home.
The Canadian Minister
of Foreign Affairs Lawrence Cannon in April 2009, not that long before
the arrival of MV Ocean Lady, issued a statement expressing Canada's
deep concern about the military operations in the northeast corner of
the country and reported increases in civilian casualties. The
statement called for full, safe and unhindered access for humanitarian
workers to those in need. The Minister offered Canadian humanitarian
assistance for internally displaced persons. The Minister stated:
"Canada holds
the Government of Sri Lanka to a higher standard for its actions and
obligations than it would a terrorist organization...Canada calls on
the government to show leadership in building the confidence of the
people of Sri Lanka, which is necessary to support a lasting peace...this
conflict cannot be resolved militarily. Our government continues to
call for a new, meaningful and durable political solution that will
address the legitimate aspirations of all the people of Sri Lanka."
These were fine words.
But they were unheeded. The Government of Sri Lanka sought a military
solution. It now believes it has achieved one. There is
no real effort to achieve a new, meaningful and durable political solution
which addresses the legitimate aspirations of all the people of Sri
Lanka.
When the victims of
the failure to follow Canadian advice arrived on our shores, the response
of the Government of Canada was to detain the arrivals en masse
under the current legislation and propose legislation which would, in
the future, impose a host of obstacles to the protection and settlement
of such a group. The fine words of Lawrence Cannon were just forgotten.
A counter argument
The United States Department
of State used to issue advisory opinions on the disposition of individual
asylum claims. These advisory opinions were often determinative
of claims.
Advisory opinions for
claims from countries which were allies or even just friends of the
US tended to be negative almost regardless of the human rights records
of those countries. US legislation prevents sending arms to human rights
violators. Refugee recognition where the feared agent of persecution
is the government is a finding against the government of past or threatened
serious human rights violations. Because the US government wanted
to support with arms the governments of Guatemala and El Salvador under
siege from Communist rebels, it ended up providing advisory opinions
against claimants from those countries to maintain its arms export policy23.
The end of those advisory opinions, in December 1990, was an advance
in American protection for refugees.
This history might seem
to suggest that the linkage between human rights policy and refugee
determination can be too close, that such a linkage works to the disadvantage
of refugee protection. However, that would be the wrong lesson
to draw. Surely, when human rights policy has gone awry, when
human rights policy promotes human rights in name only, then refugee
protection is better off without it. The remedy though in that
case is a better human rights policy rather than a divorce between human
rights policy and refugee determination.
Conclusion
Failure to protect refugees
shows indifference to the plight of the victims. Protestations
of human rights violations coupled with failure to protect refugees
is hypocrisy.
When the government
on the one hand protests human rights violations in a country and on
the other hand fails to offer protection to refugees from that country,
the message it sends to violators is that the protestations of human
rights violations are mere words, that those who condemn the violations
do not really mean what they say. Failure of protection is a license
to violators to continue and increase their violations.
When resettlement states
say no to refugees, what violators hear is we can do want we want with
impunity, without consequences. Saying no to refugees emboldens
violators, makes violations more likely.
Refugee recognition
and resettlement is more than just political. It is legal.
Refugee determination is a legal process, applying an international
law definition to the facts of the case. Those who are recognized
and resettled are given legal status.
Failure to recognize
and resettle refugees is also legal, a legal acceptance of the human
rights violations which have generated refugee outflows. A statement
by the legal systems of countries failing to recognize refugees more
than counterbalances political condemnations of human rights violations.
It outweighs them, because the legal has to be taken more seriously
than the political.
The connection between
failure to protect refugees and human rights violations would seem to
be common sense. The logical consequence of saying no to refugees is
acquiescing in violations.
For those who can not
now figure this out from logic, there is the Holocaust staring us in
the face to tell us the consequence. Those who want to prevent
massive human rights violations must protect refugees.
-----------------------------------------------------------------
David Matas is an international
human rights lawyer based in Winnipeg, Manitoba, Canada. He is
a former president of the Canadian Council for Refugees.
1 Voelkischer Beobachter July 13, 1938
2 "The Evian Conference - Hitler's Green Light for Genocide"
3 Holocaust Encyclopedia "Voyage of the St. Louis"
4 Jewish Virtual Library, "The Tragedy of the S.S. St. Louis"
5Bantam Edition, 1976, New York, page 122.
6See for instance Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin, Basic Books, 2010.
7Fifth special session, October 2007
8 United Nations document A/C.3/65/L.48/Rev.1 15 November 2010
9 Paragraph 13
10Paragraph 25.
11Pravit Rojanaphruk "Burmese refugees in Thai camps suffer due to Bangkok's policy", The Nation (Thailand) 15 05 2011
12Resolution 1593
13 Resolution 1706.
14 Paragraph 9
15 Paragraph 13.
16 UNHCR Projected global resettlement needs 2011
17David Kilgour and David Matas, Bloody Harvest: The Killing of Falun Gong for their Organs Seraphim Editions 2009.
18Bill C-49.
19Section 12 adding to the Immigration and Refugee Protection Act section 57.1(1).
20 Section 8 adding to the Immigration and Refugee Protection Act section 25(1.01).
21 Section 17 creating in the Immigration and Refugee Protection Act a new section 110(2)(a).
22Now Bill C-4.
23See David Matas, The Sanctuary Trial, University of Manitoba Institute for Legal Research 1989
