Perico Pastor FORCED BACK Report by M. Lynch, Ph.D., Director of Research May 2004 661 FORCED BACK International Refugee Protection in Theory and Practice www.refugeesinternational.org 1705 N Street, NW Washington, DC 20036 202-828-0110 (phone) 202-828-0819 (fax) [email protected] (email) May 2004 661 2 Table of Contents Introduction . 5 Survivor Stories: Findings from RI’s Forced Back Project . 7 Human Rights: International Protection and Non-Refoulement . 13 State Responsibility and Practice . 17 UNHCR’s Mandate and Response . 19 Reviving the International Refugee Protection System . 21 Conclusion and Recommendations . 23 Table 1: Involuntary Returns . 26 Appendix A: Forced Back Project Questionnaire . 27 Endnotes . 28 Acknowledgements . 32 3 4 Introduction “I should have stayed in Liberia to die.” - refugee turned back from Togo Access to asylum can mean the difference between life and death. Yet asylum policies around the world have become increasingly restrictive. Every day individuals are refused admission into and expelled from countries without having access to fair and effective status determination processes. Some are returned to countries where their human rights cannot be guaranteed. Despite existence of international agreements, states often fail to protect refugees, fearing threats to national security, domestic destabilization, infiltration by armed groups or traffickers, depletion of scarce resources, and the influx of more refugees. Sometimes xenophobia or racism determines the states’ response. International agencies also fall short in their protection operations. Since the September 11 attacks, the U.S. has used national security concerns to tighten asylum restrictions. Previously, Haitian asylum seekers intercepted at sea Article 14 of were forced back to Haiti without adequate screening. Today even those found to the 1948 have a "credible fear" of persecution remain confined. Australia is applying the Universal “Pacific Solution” which bars asylum seekers from accessing the continent itself. Declaration of Fearing possible forced return to unsafe areas such as Afghanistan, some 40 such Human asylum seekers being held on the nearby island state of Nauru staged a four week Rights affirms hunger strike. Recent tightening of Dutch asylum laws may lead to separation of the “right to families and possible forced return of some 26,000 failed asylum seekers. seek and enjoy in other countries What happens to the tens, even hundreds of thousands of refugees prevented from asylum from claiming asylum each year? Are they within reach of the international community persecution.” and its protection? If not, why? How do they survive? Or do they? In Forced Back, Refugees International (RI) presents 26 accounts of forced return from China, India, Tanzania, Panama, and Thailand and describes the harsh treatment and possible death the refugees faced. The report outlines basic rights and responsibilities, state practice, the response of the UN High Commissioner for Refugees (UNHCR), and what has worked and might work to end forced return (refoulement). RI recommends that states cease forced returns and vigilantly uphold the principle of non-refoulement, that UNHCR revive the spirit of refugee protection, and that donors view protection monitoring as a primary issue. RI believes that protecting refugees is a matter of rights that have been dangerously abrogated. The organization was founded 25 years ago when Sue Morton, an American living in Asia, galvanized an international response to the push back of some 40,000 Cambodian refugees from the Thai border. It was not an isolated or temporary problem. Over the last decade and a half alone some 2.4 million individuals have been denied access to a fair refugee determination process, making it impossible for states to know whether they have returned individuals to face persecution or torture. There needs to be a better system to identify individuals truly in need of international protection. Economic migrants are not protected by the 1951 Convention Relating to the Status of Refugees which asserts “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 group or political opinion.” People fleeing persecution need and are entitled to international protection. Sometimes their very lives depend on it. 5 6 Survivor Stories: Findings from RI’s Forced Back Project One night in March 2003, Naw Htoo woke to the sound and sight of a knife dropping next to her head. A plainclothes policeman had thrown it there. When she got up and tried to run away, the man grabbed her shirt and threatened to beat her with the rope he was carrying. Over a hundred individuals were rounded up by Thai authorities that night. “We were afraid they might deport us to Burma,” Naw Htoo acknowledged. “We were told we would have our names recorded and photos taken, and then be sent back to our home in the refugee camp. We were so relieved when we heard this,” Naw Htoo explained. “But instead of sending us back to the camp, they sent us over the border to Myawaddy town [Burma].” “We had to sit in the hot sun for close to three hours before we were taken to the police station.” After a night in a Burmese jail, the refugees were put on trucks. When the drivers realized they could not pay, they were told to get off. Naw Htoo borrowed money to return to a border town. Refugees International was able to document Naw Htoo’s story because she was eventually able to return to Thailand. The outcomes for thousands of other forcibly returned refugees remain virtually unknown. Recognizing the limited documentation of the experience with forced return, RI has studied the problem in five countries: Thailand, China, Tanzania, Panama, and India. The problem in Thailand is that, although the country has hosted hundreds of thousands of refugees over the past quarter century, the current government’s refugee policy is less than welcoming. Thailand’s neighbor, Burma, is notorious for human rights abuses that have resulted in the displacement of millions. Thailand is not a signatory of the 1951 Convention and 1967 Protocol Related to the Status of Refugees, but is still subject to international laws. Thousands of North Koreans (an estimated 50,000 to 100,000) hide in China fearing return to a country where the penalty for fleeing ranges from months in prison to execution. On the basis of their treatment upon return, North Koreans have grounds to be considered refugees under international law. China is a signatory of the 1951 Convention and 1967 Protocol. Tanzania’s traditional generosity toward the refugees of Burundi’s civil war is wearing thin. Although many of the displaced people are now returning home, Tanzania has pressured UNHCR to speed up the facilitated repatriation program. There is fear that Dar es Salaam will initiate policies like the forcible return of the Rwandan refugees in the mid-1990s. The government of Panama repatriates refugees who have entered the country to escape from the violence and civil war in Colombia. Most are Afro-Colombians from Colombia’s north-western coastal department of Choco. Panama is a signatory to the 1951 Refugee Convention. Burmese ethnic minorities who seek protection in the Indian state of Mizoram do not live in official camps, cannot access humanitarian assistance, and have been forcibly returned. Burma’s human rights record and the fact that the Chin people come from a militarized area inside Burma, suggest that many have valid claims for asylum. India has not signed the Refugee Convention. A total of 26 individuals were interviewed for this study. In the selected narratives and the summary that follow, their names have been changed to protect their individual identities. 7 Selected Narratives of Forced Return The Park family crossed from North Korea to China together. Mrs. Park was arrested while home alone and deported from the Tumen customs point. In North Korean custody, she first served time in a county labor-training center and then in a local labor-training center doing construction and road paving work. She made her way back to China after several months, but was arrested again with the entire family. She was sent to the county labor-training center and then spent 20 days in the local center working on the harvest. She returned to China after her release. Meanwhile, her husband and son had been forcibly returned to North Korea. While trying to return to China, North Korean authorities arrested them. The Park’s son was sent to an orphanage camp. Mr. Park was sent to a labor-training center where he fell sick, was released, and died after three days. Their son continued trying to cross and was successful on his fourth attempt. In April 2003, Mrs. Park and her daughter were arrested again. Steve had lived in a Thai refugee camp for six years. One morning while he was out of the camp collecting leaves, he was arrested by the local police. They hit him with an iron rod for moving too slowly at the Immigration Center, and later the same day Steve was hit on his leg and on his back with the back of a knife. When he told the Thai police he was a refugee, they said he must be sent back to Burma. Victor, an ethnic Chin, fled Burma and was working at an Indian market when the police stopped and asked him where he was from. They handcuffed him and took him to jail where he was interrogated and beaten. Later that day, he was sent from the jail with 70 others, but did not realize he had been returned to Burma until the soldiers pointed a gun at him and several of the others who were unable to buy their freedom.