RE…FOUL…E…MENT

The latest news about the return of a boatload of asylum seekers being returned to their place of departure Sri Lanka through some sea swap by the Australian Navy and the Sri Lankan Navy is an obvious escalation of the activities of the Abbott government regarding refugee policy –

Julian Burnside, QC. is reported as saying ”If a person is screened out by those four cursory questions and if the person is a refugee then we will be guilty of refoulement.”

What is Refoulement?

As signatories to the famed refugee convention (that was held so high when discussing what countries would be suitable to engage in “partnered incarceration” of asylum seekers) we are obligated to adhere to the principle of  non-refoulement.

“The principle of non-refoulement prevents the transfer of persons from one state to another if they face a risk of violations of certain fundamental rights. This principle is found – with some variations as to the persons it protects and the risks it protects from – in refugee law, extradition treaties, international humanitarian law and international human rights law. “

The current Abbott govt. obviously thinks it’s so clever that 4 questions over the phone to a distressed person in an overcrowded leaky boat covers its proverbial on this point and that international agreements do nothing if governments choose to ignore or defy them.

The question of refoulement was raised in the Rwandan situation as any person who can legitimately claim refugee status is protected from refoulement. The UNHCR believed it should err on the side of its protection mandate rather than send people who may be securing safe have in the camps to escape their own genocidal contribution. They did this for two years until the Rwandan Army struck the camps and forced people back across the border.

Previously, most instances of refoulement involved individuals fleeing across an international border, or, in some cases, moving on to a third country, and claiming that, were they sent home, they would face persecution. An Iraqi Kurd arriving at the Frankfurt airport and being sent home, a Haitian making her way to Miami in a leaky boat and being towed back to Port-au-Prince by a U.S. Coast Guard cutter—these are the instances of refoulement over which international law has some intellectual and moral purchase. In this context, it is possible to talk about the requirements for what constitutes “persecution” within the meaning of the refugee convention; in practice, these requirements differ in interpretation from country to country, but in principle any person who can legitimately claim refugee status is protected from refoulement. Only when a person ceases to be a refugee does the rule against refoulement cease to apply. The real debate is when a refugee gets the right. Are illegal aliens covered? Some countries believe they are; others do not. Does a person have to enter a country officially to get refugee status and the accompanying protection against refoulement? Again, the opinions of international lawyers and governments differ.

What became clear in Goma was that in instances of mass migration—where children and murderers arrive in a great mass, and separating them is neither easy nor safe—the law is very hard to use, and harder still to use appropriately. Nobody in those camps wanted to return to Rwanda; many had killed before, and there was no reason to suppose they would not kill again.

For UNHCR, it was better to err on the side of maintaining its protection mandate and the prohibition against refoulement than to send back people who feared persecution in a Rwanda where power had changed hands; even if doing so meant, in practical terms, allowing mass murderers to claim the rights of innocent refugees. For those who wanted the Rwandan crisis to be brought to a close, and saw in the refugee camps little more than a safe haven for those who had perpetrated the genocide and their dependents, the prohibition against refoulement seemed like madness.

For two years, UNHCR’s view prevailed. Then, the Rwandan Army struck at the camps. Most refugees were forced back across the border. It was an unhappy solution to a problem for which legal definitions of refugee status and legal prohibitions against refoulement only serve as poor guides.

– See more at: http://www.crimesofwar.org/a-z-guide/refoulement/#sthash.VpQMm47L.dpuf

Previously, most instances of refoulement involved individuals fleeing across an international border, or, in some cases, moving on to a third country, and claiming that, were they sent home, they would face persecution. An Iraqi Kurd arriving at the Frankfurt airport and being sent home, a Haitian making her way to Miami in a leaky boat and being towed back to Port-au-Prince by a U.S. Coast Guard cutter—these are the instances of refoulement over which international law has some intellectual and moral purchase. In this context, it is possible to talk about the requirements for what constitutes “persecution” within the meaning of the refugee convention; in practice, these requirements differ in interpretation from country to country, but in principle any person who can legitimately claim refugee status is protected from refoulement. Only when a person ceases to be a refugee does the rule against refoulement cease to apply. The real debate is when a refugee gets the right. Are illegal aliens covered? Some countries believe they are; others do not. Does a person have to enter a country officially to get refugee status and the accompanying protection against refoulement? Again, the opinions of international lawyers and governments differ.

What became clear in Goma was that in instances of mass migration—where children and murderers arrive in a great mass, and separating them is neither easy nor safe—the law is very hard to use, and harder still to use appropriately. Nobody in those camps wanted to return to Rwanda; many had killed before, and there was no reason to suppose they would not kill again.

For UNHCR, it was better to err on the side of maintaining its protection mandate and the prohibition against refoulement than to send back people who feared persecution in a Rwanda where power had changed hands; even if doing so meant, in practical terms, allowing mass murderers to claim the rights of innocent refugees. For those who wanted the Rwandan crisis to be brought to a close, and saw in the refugee camps little more than a safe haven for those who had perpetrated the genocide and their dependents, the prohibition against refoulement seemed like madness.

For two years, UNHCR’s view prevailed. Then, the Rwandan Army struck at the camps. Most refugees were forced back across the border. It was an unhappy solution to a problem for which legal definitions of refugee status and legal prohibitions against refoulement only serve as poor guides.

– See more at: http://www.crimesofwar.org/a-z-guide/refoulement/#sthash.VpQMm47L.dpuf

http://www.crimesofwar.org/a-z-guide/refoulement/

There are also lawyer disputes about whether you actually have to enter a country to be officially recognised as applying for refugee status to be considered for protection against refoulement. Ethics do not exist, it comes down to ‘can we get away with this?’ Remember politicians and lawyers are often one and the same.

We are aware of the issues that have beset the Tamils in Sri-Lanka for many years and the calls for an end to their persecution………..

See Oct 2012 Crikey: http://www.crikey.com.au/2012/10/17/why-tamils-still-flee-war-ravaged-sri-lanka/

and recent May 2014 New Indian Express: http://www.newindianexpress.com/cities/bangalore/Sri-Lankan-Tamils-Are-Still-Being-Persecuted-Author/2014/05/12/article2219883.ece

Now, a Question about those four elusive questions asked of the people in the boat:

How come just asking four questions over the phone is now enough to determine any legitimate refugee status claim when previously the bureaucracy in so many cases has taken years of incarceration, investigation and injustice to determine anything as complex as refugee applications in Australia?

 

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