Have you heard? Some people are more human than others…..

”About 600 refugees and asylum seekers who have been sent to Papua New Guinea and Nauru under Australia’s offshore processing system remain in legal limbo there after six years.

In 2019, the government transferred about 170 refugees to Australia under a medical evacuation (medevac) law that enabled refugees and asylum seekers in ill-health who cannot get appropriate care in Papua New Guinea or Nauru to come to Australia.

But in December, the government repealed the law, baselessly claiming it was necessary for border security.” ( Human Rights Watch, 14 January,  2020)

 

The Universal Declaration of Human Rights declares that ‘All humans are born free and equal in dignity and rights’, yet millions of individuals continue to be subject to indefinite incarceration and detention at refugee camps run by Nation States that evince populist and nationalistic immigration policies; policies that reek of disdain for human life including for the lives of children of foreign ethnicity, culture, religion and language.

The idealism reflected in the UDHR stands in stark contrast to the realities of millions of men, women and children, who are stripped of their humanity and their right to be part of civil society by the political machinery  of the Sovereign State, the determiner of life and death for those who stand outside the body politic.

Consider the immigration policies of Australia in relation to its treatment of refugees and asylum seekers; policies which allow for the indefinite detention of individuals, some of whom have remained in detention for up to nine years without any criminal charges brought against them; all this done by a sitting member of the United Nations Human Rights Council…… The UN Human Rights Working Group recently delivered their opinion on the  detention of Mr Mohammad Naim Amiri, an asylum seeker of Afghan origin, by Australia for over 9 years since 2009:

‘‘The deprivation of liberty of Mohammad Naim Amiri, being in contravention of: articles 2, 3, 7, 8, 9 and 14 of the Universal Declaration of Human Rights and of articles 2, 9, 16 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories II, IV and V.” 

‘The Working Group requests the Government of Australia to take the steps necessary to remedy the situation of Mr. Amiri without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”  ( Human Rights Council, Working Group on Arbitrary Detention , 2017).

Is the Australian government under a legal obligation under International Law to provide protection to refugees including Stateless child refugees?

Alison Battisson, a lawyer and the director principal of Human Rights For All, who was instrumental in bringing all six of the indefinite detention cases before the working group, said the UN had made a clear statement that Australia’s practice of indefinitely detaining refugees and asylum seekers was unlawful and must cease.(The Guardian , 2018)

“Australia’s policies are against international law and are inhumane,” she said. “In a modern society this practice is unacceptable”. ( The Guardian , 2018) 

Consider the life and death situations involving children as young as 10 years of age, incarcerated by the Australian government on Nauru island for years:

A 10 year old Iranian boy who, together with his mother and father, had fled Iran in 2013 and arrived in Australia by boat ‘on 23 July that year, just four days after the then prime minister, Kevin Rudd, decreed that no asylum seekers arriving by boat would ever be settled in Australia.’ ( The Guardian, 20 March, 2018).

This child had repeatedly attempted to kill himself while at Nauru, due to severe psychological problems.

The Federal Court of Australia, whom the 10 year old’s case had been referred to, found that he was ‘suffering from a serious mental illness which posed a significant present risk of suicide.’

The Federal Court heard evidence that on 9 January 2018 ‘he attempted suicide using paracetamol and antibiotics and was taken to emergency, unconscious. Whilst in hospital, on 11 January 2018, he attempted to strangle himself with a curtain. He remained in hospital for 6 days. On 28 January 2018 he grabbed a paring knife in a highly agitated state which had to be wrestled from him.’ (AYX18 v Minister for Home Affairs [2018] FCA 283, Federal Court of Australia).

If you’re tempted to think the suicidal 10 year old refugee’s case was an isolated case, think again;

The Guardian reported  that ‘a 12-year-old girl has been taken to Nauru hospital after reportedly attempting to set herself on fire.’ ( The Guardian, 22 August, 2018).

About 117 children remain on Nauru, among whom a number are said to be suffering from resignation syndrome or serious child psychiatric disorder pervasive refusal syndrome whereby they ‘effectively withdraw from life – refusing to eat, drink, toilet, leave their beds, speak, or even open their eyes.’  ( The Guardian, 22 August, 2018).

Has the torture of children who are subject to draconian State policies become a reinvented hallmark of liberal and ‘progressive’ democracies?

 

Legal Protection of Refugees under the Refugee Convention 1951

International Refugee Protection today is governed by principles underpinned by the United Nations Convention relating to the Status of Refugees, adopted in 1951, which came into force on 22 April 1954. The Convention’s 1967 Protocol gave the Convention universal coverage. The emphasis of the definition of the term ‘refugee’in Article  1 on ‘the protection of persons from political or other forms of persecution.’

‘A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.’ (Convention and Protocol Relating to the Status of Refugees, UNHCR).

One has to bear in mind that refugees fleeing violence from their country of origin who arrive on the shores of a country that is a signatory of the 1951 Convention are often charged with immigration offences by the host country.

The 1951 Convention, however, states that, subject to specific exceptions,

‘refugees should not be penalized for their illegal entry or stay.

This recognizes that the seeking of asylum can require refugees to breach immigration rules.

Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.’ (Convention and Protocol Relating to the Status of Refugees, UNHCR).

 

What other safeguards does the 1951 Convention provide against in respect of the expulsion or deportation of refugees?

The principle of non-refoulement as part of International Customary Law

The principle of non-refoulement found in the Convention provides that ‘no reservations or derogations may be made to it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.’

Article 33(1) of the 1951 Convention states:

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

 

Note that the principle of non-refoulement applies even when a State turns away refugees in boats out at sea some distance away from a State’s borders by for example ‘intercepting ships on the high seas.'( (Convention and Protocol Relating to the Status of Refugees, UNHCR).

It is instructive to note that such guarantees afforded by the 1951 Convention prohibiting the arbitrary and indefinite detention of refugees seeking political asylum in States such as Australia are flagrantly disregarded and breached with impunity by the invocation of State laws on immigration.

Should international Laws on refugee protection be superceded by the domestic law of a Sovereign State? Should the status of a vulnerable child, arriving on the shores of State, having fled with his or her parents from imminent violence or death from a country of origin, be sufficient to criminalize that person as an illegal immigrant?

It is submitted that such policies underpinning the criminalization of refugees are essentially xenophobic and nationalistic in nature, —-

exploiting the populist sentiments of the ideological far right values of government who lay claim to a State’s right to self – determination of its ethnical, racial , religious composition. 

Such discriminatory immigration policies of a State have absolutely nothing to do with respect for the Rule of Law as reflected in the Refugee Convention 1951 and International Human Rights Law generally.

 

References:

Australia: National Security Laws Chill Free Speech, Human Rights Watch, January 14, 2020.

Online: https://www.hrw.org/news/2020/01/14/australia-national-security-laws-chill-free-speech

Human Rights Council, Working Group on Arbitrary Detention, A/HRC/WGAD/2017/42

Online:https://www.ohchr.org/Documents/Issues/Detention/Opinions/Session79/A_HRC_WGAD_2017_42_EN.pdf

 

‘Nauru self-harm ‘contagion’ as 12-year-old refugee tries to set herself alight’, The Guardian, 22 August, 2018.

Online:  https://www.theguardian.com/australia-news/2018/aug/23/nauru-self-harm-contagion-as-12-year-old-refugee-tries-to-set-herself-alight

‘UN body condemns Australia for illegal detention of asylum seekers and refugees’, 7 July , 2018.

Online: https://www.theguardian.com/world/2018/jul/08/un-body-condemns-australia-for-illegal-detention-of-asylum-seekers-and-refugees