The Need for the UN Special
Rapporteur on Refugees
The Memorandum of Understanding (MOU)
signed by the government of Vietnam, government of Cambodia and
United Nations High Commissioner for Refugees (UNHCR) on 25 January
2005 on the repatriation of the Montagnard refugees from Cambodia
once again reinforces the need for appointment of a UN Special
Rapporteur on the rights of refugees.
Since the collapse of the Berlin Wall, refugees' right to
international protection has collapsed with the advent of “safe
zones”, “safe countries” and “dumping grounds” such as Nauru and
appointment of new immigration officers such as Libya. Post
September 11th events have made the refugees more vulnerable. Yet,
the refugee rights continue to be considered at the United Nations
mostly within the four walls of the Headquarters of the UNHCR during
its annual Executive Committee meeting. The Executive Committee
meeting where governments pledge funds to the UNHCR is hardly the
forum to discuss “rights”. In any event, as an implementing agency,
UNHCR spurns any criticism and carefully chooses the NGOs – its
implementing partners to participate in the deliberations. The UNHCR
is increasingly becoming the most expensive humanitarian agency,
more so when it cannot have access to the refugees like most
humanitarian NGOs without the invitation of the host country.
Asia:
Problem with MOU between Vietnam, Cambodia and UNHCR
The MOU signed on 25 January 2005 to find a final solution for some
750 asylum seekers belonging to the indigenous peoples of the
Central Highlands, who fled from Vietnam following a crackdown in
April 2004 exemplifies the kind of “access” UNHCR promotes.
On the returnees, the MOU states, “The Vietnamese side will be
responsible for transporting the returnees from the venue of
readmission to the localities of their residence before their
departure to Cambodia”. UNHCR's access on the Vietnamese side at the
time of repatriation remains fundamental for safety and security of
the returnees. Human Rights Watch in its report, “Vietnam: Torture,
Arrests of Montagnard Christians” of 7 January 2005 documented the
torture of the returnees who fled following the crackdown in
February 2001. Article 3 of the United Nations Convention Against
Torture prohibits refoulement of “a person to another State where
there are substantial grounds for believing that he would be in
danger of being subjected to torture” and that “for the purpose of
determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of
a consistent pattern of gross, flagrant or mass violations of human
rights.”
For visits to the returnees “at an appropriate time” to be decided
by Vietnam, UNHCR “committed to endeavour to obtain the necessary
funds internationally for infrastructure projects in the returnee
localities.” This is basically rewarding the Vietnamese government
for its
repressive policies and practices
against the Montagnards
which caused the exodus and recognising the fact that exodus was
caused by economic reasons and not because of “a consistent pattern
of gross, flagrant or mass violations of human rights” as widely
documented and reported. It is another matter that without necessary
control over the projects, UNHCR's endeavours may accelerate
Kinh-isation of the Central Highlands, further intensify the
conflicts and cause exodus of asylum seekers.
Ill-treatment of the Montagnard refugees by Cambodian government and
UNHCR is not new. After UNHCR pulled out of a repatriation agreement
with Hanoi and Phnom Penh on 22 March 2002 following resettlement of
about 1,000 ethnic minorities in the United States, the situation of
the Montagnard asylum seekers further deteriorated. Many asylum
seekers were tortured by Cambodian security forces and handed over
to the Vietnamese border guards until another major influx after
April 2004 drew international attention. As UNHCR closed its office
in Rattanakiri, asylum-seekers had to travel some 600 kilometres
over land to reach Phnom Penh. Despite such difficulties and
repression, hundreds of refugees managed to reach the Office of the
UNHCR in Phnom Penh since late 2003. UNHCR’s role in providing
assistance to these asylum seekers remains questionable.
Following the collapse of the ceasefire between the Free Aceh
Movement, Gerakan Aceh Merdeka (GAM) and the Indonesian government
in May 2003, scores of Acehnese fled to Malaysia to seek asylum.
Majority of the Acehnese asylum seekers however cannot approach
UNHCR due to fear of arrest. In mid-September 2004, the police
arrested 15 refugees from outside the UNHCR office in Kuala Lumpur.
In a similar crackdown in August 2003, Malaysian police arrested and
detained more than 200 Acehnese asylum seekers from outside the
UNHCR office. According to UNHCR by 1 October 2004, about 300
refugees are currently detained at immigration detention centers in
Malaysia. When Malaysia recently launched the mass deportation of
the socalled illegal immigrants, it failed to make any distinction
between the asylum seekers and the illegal immigrants.
With the closure of the Dalai Lama Offices by Nepal, the Tibetan
asylum seekers have become more vulnerable. The Nepalese officials
repeatedly refouled the Tibetan asylum seekers. On 13 January 2004,
three Tibetan refugees, including one minor, were handed over to
Chinese border police by Nepalese officials at the Friendship Bridge
border post at Dram.
Europe: Libya as the new Immigration Officer
In the post-September 11th, the asylum seekers and refugees have
become more vulnerable. The European Union, which promoted the rule
of law including the rights of the refugees, has been adopting
anti-refugee laws. Many European governments which were hitherto
considered as leaders on human rights have started questioning the
absolute nature of the prohibition against torture and principles of
non-refoulement.
Taking advantage of the post September 11th period, many countries
across the world have been promoting illegal detention. Australia
legalised the exclusion and sought violent solution by dumping the
asylum seekers in Nauru and other Pacific Islands.
The European Union started its process to undermine the refugee
rights by identifying countries as “safe” and borrowing the
discredited Australian example to establish centres to process
asylum-seekers off-shore, in North African countries. And today,
Libya, which has been pariah of the international community until
recently, has been upgraded to be the immigration officer of the EU.
In October 2004, hundreds of newly arrived African and Middle
Eastern nationals were speedily returned from the Italian island of
Lampedusa to Libya without adequate safeguards. Hundreds of refugees
from Ethiopia, Eritrea, Somalia and Liberia are being deported from
Italy to Libya. The fact that Libya has neither ratified the Refugee
Convention nor established national asylum procedures, does not seem
to bother EU. Libya may as well ratify the 1951 Convention Relating
to the Status of Refugees or develop national law on refugees at the
behest of the EU. UNHCR is unlikely to hesitate to become an
accomplice given its attempts to develop national laws on refugees
across the world. This is despite the fact that after months of
lobbying for a national law, Cambodia agreed to consider a law which
falls short of international law and UNHCR had to abandon the idea.
Africa: Erosion of refugees’ rights to international protection
Amnesty International in its February 2005 issue of the monthly The
Wire highlighted erosion of refugee rights in central Africa. It
reported of the lack of guarantees for safety and torture of
refugees in Tanzania where large number of refugees from the Great
Lakes region – notably Burundi, Rwanda and the Democratic Republic
of Congo sought refuge.
Amnesty International states, “UNHCR changed its policy regarding
Rwandese refugees in September 2002. It now actively promotes their
voluntary repatriation. This decision was not based on objective
information regarding the human rights situation facing returning
refugees to Rwanda. Close to 25,000 Rwandese refugees were forcibly
repatriated from Tanzania in the last two months of 2002. The
international protection and assistance given to Rwandese refugees
currently in Tanzania is questionable. UNHCR has also considered
withdrawing the refugee status of Rwandese refugees by invoking
“cessation clauses”, thereby terminating their international
protection.”
The Need for the UN Special Rapporteur on Refugees
The refugees are one particular group of persons who are not
discussed at the United Nations Commission on Human Rights (CHR).
The agenda item 14(c) of the CHR titled “mass exoduses and displaced
persons” has been reduced to internally displaced persons. At the
60th session, the Commission on Human Rights considered only the
reports (E/CN.4/2004/77 and Add.1-4) of the Representative of the
Secretary-General on internally displaced persons. However, the
refugees across the world are subjected to arbitrary detention,
torture, extrajudicial executions and refoulement.
There is a need to recognise and ensure respect for the rights of
the refugees. They must not be considered as a group of persons who
require “charity”. It is unfortunate that the rights of refugees are
yet to be discussed by the CHR. The 61st session of the Commission
on Human Rights must take decisive action for the appointment of a
Special Rapporteur on the Rights of Refugees and discuss the refugee
rights as a separate sub-item of the agenda item 14 from the 62nd
session onwards.
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