WORLD VIEW Decriminalize the Victims
By Sooyoung Hu
THE 1951 CONVENTION Relating to the Status of Refugees is a key document that defines the term ‘refugee’, outlines rights for refugees, and makes states accountable for their actions.
Important requirements to become a refugee include: facing a genuine fear of persecution, seeking asylum or refugee status in the first possible venue, and receiving a fair hearing from a person who is legally qualified
States have to uphold the non-refoulement principle -the practice of not forcing refugees to return to a country where they face serious persecution .
The 1951 Convention and the 1967 Protocol Relating to Refugees form the legal framework.
Although they provide a consistent set of requirements in determining who is a refugee and holds states liable for protecting the rights of refugees, violations occur.
How effective is the legal framework in protecting their human rights?
It seems that the enforcement is increasingly ineffective and inappropriate in safeguarding refugees’ rights.
Let’s examine countries such as Australia, Turkey, the Czech Republic, and China that repeatedly fail to uphold the principle of non-refoulement, commit human rights abuses, and find ways to refuse refugees.
Down-under
Despite being a signatory to the 1951 Convention, Australia defies the non-refoulement principle, which violates refugee law. For instance, the boat Tampa rescued Afghanistan asylum-seekers who were on board a sinking Indonesian fishing boat.
Although the closest port of rescue was on Christmas Island in Australia, the Australian government refused to allow Tampa to land any of the asylum seekers. Australian Prime Minister John Howard was determined to limit the number of illegal arrivals and unauthorized asylum seekers in the country.
Over half of Australia’s population viewed asylum seekers as a deviant social group coming for a better life rather than helpless people fleeing persecution.
This is because refugees are seen as exploiters of Australia’s welfare system. The passengers were taken to camps in Naura while others were sent back to Afghanistan, disregarding the risk of persecution.
By initially refusing to accept refugees and sending them back to Afghanistan, Australia fails to uphold the non-refoulement principle which states that no contracting state shall expel or return a refugee to a territory where his life is threatened.
Even though Australia has legal obligations under the UN Refugee Convention, the Tampa Affair demonstrates the weakness of the legal framework in failing to effectively enforce refugee law and punish countries when they commit violations.
In addition to violating the core principle of non-refoulement, Australian detention centers do not comply with human rights protection like the right to medical care and freedom from degrading treatment.
Detention camps for refugees have horrible conditions that negatively impact mental and emotional health.
At the Naura camp, more than 30 children report sexual assault, and 1200 refugees suffer severe abuse and inhumane treatment.
They face indoor temperatures over 45 Celsius, use filthy toilets, and are hampered by severe resource constraints.
The legal framework is functionally inefficient because it fails to guarantee basic human rights. The violations against non-refoulement and human rights undermine the legal framework and its protections, further impacting attitudes of other countries.
Forcible deportation
Similar to Australia. Turkey faces international criticism because Syrian refugees have been forcibly deported back to Syria by Turkish authorities in violation of the non-refoulement principle,
About 80 Syrian refugees held at a detention center in the Turkish city of Erzurum were expelled after being tortured, beaten, locked in rooms, and forced to sign documents saying they were leaving Turkey of their own free will.
Refugees don’t have access to interpreters who can translate the Turkish language on the document, and police officers forcibly use refugees’ fingerprints as signatures without permission.
Refugees cannot challenge their detention or deportation because they have no legal representation, and Turkey does not grant a fair hearing. Turkey violates the provision that repatriation must be voluntary. The legal framework is unsuccessful in even giving refugees an opportunity to seek legitimate status.
The Czech solution
In addition to Turkey, refugees flee the Syrian civil war to the EU, including the Czech Republicwhich intentionally violates human rights to deter refugees from coming in the first place.
The refugees prefer Germany, but they have no freedom to seek refugee status at a place they desire They must seek it at the first possible venue, forcing them to enter the Czech Republic where refugees endure strip-searching and get their money is confiscated to pay for their detention; where they are held from 40 to 90 days in degrading conditions.
The Czech Justice Minister describes the Bìlá-Jezovqá detention center as worse than a prison
This shows the use of systematic mistreatment towards refugees- to the extent of abusing their human rights -to discourage them from trying to seek refugee status.
The Czech strategy in intentionally failing to protect human rights is weak in protecting refugees’ freedom from degrading treatment once in the country.
A majority of the refugees cannot make future plans because they are not given a timeline of how long they need to remain in refugee camps.
This uncertainty restricts their ability to make economic progress, find a way to make a living, or a permanent job.
In fact, the protection of human rights for refugees is drasticallyinferior to that of trafficking. A Special Rapporteur on Trafficking in Persons (SRTIP) has the authority to monitor, and publicly report on a human rights situation.
There is no appointed person to report human rights abuses for refugees.
Although the legal framework allows refugees to seek haven in another country to avoid persecution, they are still subject to human rights abuses,
The legal framework, including the 1951 Convention and 1967 Protocol, is ineffective because it does not have monitoring bodies to reinforce the protection of refugee human rights and hold states accountable for violations.
The China syndrome
Although Syrian refugees going to the Czech Republic are at least given the opportunity to seek refugee status, the status of North Korean refugees crossing into China is affects their treatment and the benefits they are entitled to.
The Chinese government insists that North Korean refugees are economic migrants.
The famine in North Korea causes many North Koreans to cross over to China, posing an economic strain on undeveloped border regions.
The legal framework holds very little power in compelling China to prioritize accepting refugees over protecting their economy.
China is able to find a loophole in the legal framework by stating that famine does not necessarily equal persecution; therefore, it justifies not accepting people trying for economic advantage.
The legal framework fails to clearly delineate the forms of persecution, allowing China to label North Korea refugees as economic migrants and not accept them.
But, North Koreans risk arrest and death if they are forced to trturn
When they are turned back, they are tortured and persecuted because defection is a crime of treachery against North Korea
Death sentence
This goes against the 1951 Convention that says that no state shall expel a person where there are substantial grounds that the person will face torture.
Forcibly repatriating the North Koreans is the same as sentencing them to death. Along with the threat of death, In this sense, China fails to uphold its responsibility as a receiving country that gives refugees a fair hearing, proving the inadequacy of the legal framework to manage the country’s adherence to the 1951 Convention and 1967 Protocol.
The politics of North Koreans’ refugee status overshadows the importance of abiding by the legal framework. The Chinese are motivated to avoid displeasing North Korea. China holds extreme power because it is the only country that has ties with North Korea and can address international concerns over North Korea’s possession of nuclear weapons.
Giving China a strong motive to maintain its connection with North Korea. Thus, although China is a signatory to the UN Refugees Convention with the obligation to not forcibly repatriate refugees, China cooperates with North and justifies turning in defectors by claiming that defectors are not legally considered refugees Chinese citizens are even paid for turning defectors in.
Overall, defectors lack access to schooling, health care, and citizenship. Women defectors are also vulnerable to abuse and sex trafficking. They are often forced into marriages and sold to Chinese men These human rights abuses demonstrate the ineffectiveness of the legal framework in holding states accountable for protecting refugees’ rights.
In China’s case, the lack of clarity for “persecution” allows China to justify this mistreatment because defectors are not refugees, and China has no legal obligation to protect defectors’ rights. Thus, the legal framework is inadequate in its specificity.
Criminalize indifference
“Faced with aging domestic populations and following the logics of corporate expansion, Western markets need migrants, but the ordinary citizenry does not want them. What has changed is the societal capacity to absorb those immigrants– nd closely related to that – the psychological state of domestic populations. Many European political parties extended their agendas with more restrictive immigration policies.” – noted professor Anis H. Bajrektarevic in his work ‘JHA Diplomacy’. “Shortsighted and opportunistic as it might be – it ignores the golden rule of migration: Once you cut off legal means, would-be immigrants just turn to the phenomenon and predicting todays currents nearly ten years ago.
In conclusion, the 1951 Convention and the 1967 Protocol are ineffective in enforcing the acceptance of refugees with the option of voluntary repatriation.
Although Australia is generally accepting of refugees, the extreme influx of authorized asylum seekers has overwhelmed the country, causing Australians to view them as exploiters of Australia’s welfare system. Australia has violated the non-refoulement principle and subjected refugees to terrible conditions. The bigger implication is that disobedience has a cascading effect – Turkey, the Czech Republic and Poland, and China have also violated the non-refoulement principle and committed human rights abuses. All three countries subject refugees to degrading treatment, Turkey forcibly deports refugees, the Czech Republic deliberately mistreats refugees to deter them from coming, and China rejects North Koreans as refugees. These examples indicate the weakness of the legal framework in granting refugee status in the long-term and protecting their rights.
Looking at the bigger picture, installing monitoring bodies and regulatory agencies to supervise the adherence to the legal framework for refugees can strengthen its effectiveness..
Sooyoung Hu is a scholar at its Political Science and Peace and Conflict Studies Department f Berkley University.
