Canadian Human Rights Lawyer launches Refugee Week

Canadian Human Rights lawyer David Matas was the guest speaker at the 2011 Multicultural Week Celebration in Brisbane…

Matas has represented B’nai B’rith at the United Nations and was key activist for the Jewish cause at the ill-fated Durban Conference.

J-Wire publishes his address – “Promoting respect for human rights by protecting refugees”

How do we promote respect for human rights in countries which are gross violators of human rights?  The very nature of gross violator regimes means that internal mechanisms do not work.  One can not realistically hope for law reform, court access, judicial independence, media reporting, internal human rights activism, or a change of government through free elections.

We are left with external recourses – human rights reporting, bilateral and multilateral engagement, sanctions, foreign or international civil or criminal remedies, and refugee protection. To make respect for human rights work, we have to invoke every mechanism, every standard available.  That is easier said in done.

In particular, the linkage between refugee protection and respect for human rights though strong in law is weak in fact.  The notion of human rights is built into the refugee definition.  A refugee is a person with a well founded fear of persecution.  Persecution is a serious violation of any human rights.  Concern about human rights violations in a country should translate into refugee protection for nationals from that country.

Yet, often that does not happen.  One reason is the separation between the arms of government dealing with human rights and refugees.  International human rights promotion is typically the domain of departments of foreign affairs.  Refugee protection falls within the bailiwick of departments of immigration or public security.

While there is an administrative logic in this sort of bureaucratic separation, it makes divergence between promotion of respect for human rights and refugee protection all too easy.  Yet, the concepts can not be separated.  If we want to promote human rights, we have to protect refugees.

That is obviously true for the individual claimant.  If a person has a well founded fear of persecution, and yet the person is returned to the country fled, then there is a real risk that the human rights of the individual will be violated.  Protecting the person prevents the infliction of human rights violations on him or her.

Yet, there is more to the linkage in that.  There is an overall, aggregate linkage.  Protecting refugees will enhance respect for human rights in the country fled.  Not protecting refugees increases the overall level of human rights violations in the country fled, not just against the refugee claimant returned, but generally.

The Holocaust

Nazi Germany annexed Austria March 12, 1938.  This annexation raised the prospect of a dramatic immediate increase of Jewish refugees, adding Austrian refugees to the already large number of German Jewish refugees.  The Government of the United States convened a meeting in Evian, France, July 1938, of the governments of thirty two countries to address the issues of Jewish refugee protection and resettlement. The meeting was a bust. No country was willing to offer resettlement places to Jewish refugees.

Hitler said in 1922 that the Jews “cannot protect themselves and no one will stand forth as their defenders.” A German newspaper after the Evian conference, in an article under the heading “Nobody wants them”, wrote that the development of the Evian Conference was very embarrassing for the Marxists, because as they themselves acknowledged, “it leads to an international legalization of German antisemitic policy.”

Annette Shaw wrote that the Evian Conference gave Hitler “the green light to believe he could do whatever he wanted to the Jewish people as nobody wanted them and this resulted in genocide”

Kristallnacht, the night of broken glass, November 9, 1938, prompted a new wave of refugees.  After Kristallnacht, the German government increased its push to expel Jews. The Nazi government wanted to exploit the unwillingness of other nations to admit large numbers of Jewish refugees to justify the Nazi regime’s antiJewish goals and policies

The Steamship St. Louis sailed in May 1939 with a German crew and a German flag from a German port, Hamburg, with 938 Jewish refugees to Cuba.  By May 1939, Germany was a Nazi totalitarian state.  The ship left because the Nazis wanted it to leave.  Indeed, some of its passengers had been expelled by order from Germany, required to leave within a fixed time.

The Government of Cuba had issued landing certificates and transit visas.  The refugees planned to stay in Cuba temporarily while applying for US visas.

The Cuban government revoked the landing certificates without informing the passengers shortly before the ship left and, when the ship arrived, refused to allow the passengers to land.  German Propaganda Minister Jospeh Goebbels was active in fomenting Cuban opposition to the refugees

Neither the US nor the Canada would take the passengers.  The ship was forced to return to Europe.  254 of its passengers later died in the Holocaust.

The voyage of the St. Louis was a big news story. The media sent the story around the world. The failure of the passengers to get protection was a vivid specific reminder and repetition of the failure of the Evian conference.

The St. Louis was Evian brought home.  What diplomats and governments learned from Evian, the public learned from the voyage of the St. Louis.  The voyage of the St. Louis put names and faces and individual stories on the Evian conference failure.

The Nazis learned from the Evian conference that there was no will to protect refugees.  That lesson served their global antisemitic agenda.  The Nazis had nothing to do with the convening of the Evian conference; but they were tacit partners in the voyage of the St. Louis.  By the time the St. Louis set sail, they knew that the will to protect Jewish refugees was not there and that they could benefit from the public display of that unwillingness.

The Holocaust was difficult to anticipate before it happened.  Even today, in retrospect, we shake our head in amazement when we learn what took place.  All the same, by May 1939 and the voyage of the St. Louis, the brutality of the Nazi regime towards Jews was plain to see.  It was obvious that Jews needed protection from Nazis even if governments at the time did not know how badly that protection was needed.

The Nazis learned from Evian/St. Louis that global objection to their human rights violations was so much hot air, that, when it came to doing something real, nothing happened.  The failure of the Evian conference and the voyage of the St. Louis told the Nazis that they could victimize the Jews with impunity.  There would, to be sure, some pro forma objections for public consumption.  But they would not be meant; nothing would follow from them.

These failures though told the Nazis more than that.  World War II was, after all, not a classic war where states were fighting over boundaries or assets.  It was a war unlike any other.  The Nazis sought world domination to kill Jews everywhere.  They invaded foreign countries to kill their Jews.  Lucy Davidowicz, in her book The War against the Jews 1933-1945 writes that, in the minds of the Nazi German Leaders, World War II was a cover for its planned murder of the Jews

For the Holocaust, cooperation of local populations was essential.  The German Nazis needed the local populations to tell them who the Jews were, where they were.  Because the sheer scale of the task of slaughtering all the Jews, the German Nazis needed local help –  for rounding up, for containment, as additional fingers on the triggers.

The failure of Evian told the German Nazis that this local cooperation would be there.  Governments at Evian refusing to commit to protect Jewish refugees were reacting to the antisemitism of their populations back home.  The message the German Nazis got from Evian was that there would be plenty of willing hands everywhere to help them construct the machinery of Jewish death.

When a person fails to come to the help of someone in dire straits, despite the ability to do so, the person becomes complicit in the persecution.  If foreign populations were not willing to protect Jewish refugees when they were free to do so, when information was not limited by propaganda control, if foreign populations were willing to become complicit in Jewish persecution when they had every capacity to do otherwise, the likelihood of their complicity in persecuting the Jews once Germany seized control of their countries seemed great.

The failure of Evian then was a precursor both to the Holocaust and World War II. Evian was a green light for the German invasion of its neighbours, because Evian told the German Nazis that their goal of invading foreign countries to kill its Jews with local help could be realized.

Some of the St. Louis passengers turned back from Cuba and North America found havens in European countries not then under Nazi rule. Great Britain, the Netherlands, Belgium and France all took in some of its passengers (but not enough, even in combination, to help all). This was so when the United States was prepared to take none.

This comparative reluctance of the US to protect the St. Louis passengers was both a precursor and a signal of American reluctance to get involved in World War II.  The war against the Jews was, the voyage of the St. Louis told the German Nazis, a war that Americans were not that interested in fighting.  The message that the voyage of the St. Louis sent, that Americans were even more reluctant than Europeans to help Jewish victims, emboldened the German Nazis.  Like the Evian conference failure, it made World War II more likely.  It was another green light for the German Nazis for both the Holocaust and World War II.

The failure to protect refugees did not end with Evian and voyage of the St. Louis.  It continued throughout World War II, throughout the Holocaust, after governments knew that the Holocaust was happening.  As the War progressed and the number of states not under Nazi rule decreased, the space for Jewish refugees diminished.  But those states that were left who could take in Jewish refugees would not do so.

After the Holocaust began, the number of Jews who were able to escape to safety was small.  At that point, even if every Jew able to escape the Nazis was given refuge, the number protected would not have been significant.  But the message would have been large.  The failure to protect this small member contributed to the devastation of the Holocaust, added, in the millions, to the numbers killed.

The Holocaust began through bullets.  Roving killing squads, the Einsatzgruppen, shot the Jews locally, wherever they could be found.  2.25 million Jews were killed this way.  The Nazis eventually came to the conclusion that this process was too slow, too inefficient

There were too many Jews spread too widely for this technique of slaughter to be effective in killing all Jews in a reasonable period of time.

The Nazi leadership decided to shift to concentration camps and poison gas. Jews would be rounded up and sent by rail in boxcars to death camps.  At the camps, they would be herded into showers and killed en masse rather than as the Einsatzgruppen did, one by one. This plan allowed for a quicker kill rate.

It also minimized the psychological consequences to the killers

The death camps involved fewer hands on perpetrators.  This was a perverse concern but, because of their dehumanization of the people they were killing, consistent with the Nazi world view that they could slaughter millions of innocents and remain humane.

However, it was much more vulnerable to interruption from the Allies.  The Allies could bomb the camps and the rail lines and stop or severely hamper the whole enterprise.  For the Nazis to shift from the roving killing squads to the death camps, they had to be confident that the Allies would not do that.

The overconfidence of the Nazis about their own military prowess is part of the story.  But it is not the whole story.

The failure of the Allies to protect Jewish refugees even as the Holocaust was happening told the Nazis that their death camp plan would be secure.  Though the Holocaust, as it was happening, was not front page news around the world, there was enough information available about it for the Allies to know that it was occurring and for the Nazis to know that the Allies knew.

For the Allies to offer havens to fleeing Jewish refugees involved no military risk.  If the Allies were not prepared to protect Jewish refugees at no risk to themselves, the likelihood of their going on bombing missions against death camps and rail lines to the camps, where the military risk to the missions would be real, was small.

So, one of the pillars of Auschwitz was the failure to protect Jewish refugees.  The refusal of the Allies to offer sanctuary to fleeing Jewish refugees while the Einsatzgruppen went about their deadly business told the Nazis that the gas chambers could be built and used in tranquillity.

The lesson then from the Holocaust is plain.  To prevent massive human rights violations, we have to protect refugees.  Failure to do so jeopardizes not just the refugees refused.  It puts at risk the whole group from which they come.

Burma and Sudan

Even though the connection between refugee protection and combatting human rights violations seems pretty straightforward, it is not made the way it should be.  Let me address five modern examples – Burma, Sudan, Iran, China and Sri Lanka.

In the case of Burma and Sudan, the international community is vociferous in condemning their human rights violations.   There is a general consensus within the international community that Burma and Sudan are grave violators of human rights. Yet, if one keeps in mind the tight connection between combatting human rights violations and protecting refugees, the international community has failed the victims of Burma and Sudan in at least two ways.

One is the total absence of reference to the need to protect refugees in the many international statements condemning the gross violations of these two regimes.  In the case of Burma, the United Nations Human Rights Council has appointed a rapporteur, called a special session and passed a sequence of resolutions unequivocal in their condemnations.  So has the General Assembly.

Take for instance the United Nations General Assembly resolution passed in 2010 condemning human rights violations in Burma

The resolution calls on Burma to stop producing refugees but says nothing to other countries about protecting them.

The resolution welcomes the role played by countries neighbouring Burma and members of the Association of Southeast Asian Nations in support of the good offices mission of the SecretaryGeneral but says nothing about the role played by countries neighbouring Burma and members of the Association of Southeast Asian Nations in protecting Burmese refugees.  That role would, admittedly, hard to welcome without reservation since the treatment of Burmese refugees by Burma’s neighbours is less than ideal.

In Thailand refugees are kept in restricted access camps near the Burmese border. The Thai Committee for Refugees reported in May 2011 that the Thai army had stopped distributing food to the refugees and had tried to force them back to Burma

UN silence on this sort of behaviour when the UN is addressing human rights violations in Burma itself says something.

Human rights promotion and refugee protection at the UN as with national governments, live in different worlds.  They have different instruments, bureaucracies and mechanisms.  Practically the two are linked; but in the governmental and intergovernmental world, they are far apart.  This separation weakens both, undermining both refugee protection and human rights promotion.

The Security Council in March 2005 referred the situation in Darfur, Sudan to the International Criminal Court in the Hague

The Court in March 2009 issued an arrest warrant for the Sudanese president al Bashir.  None of the many Security Council resolutions about Sudan calls on member states of the UN to offer protection to Sudanese refugees.

It is not as if the issue of refugees is ignored.  Take for instance the Security Council Resolution on Sudan of August 31, 2006

That resolution addresses the topic of refugees from a variety of perspectives. It calls upon the Government of Sudan to ensure access of relief personnel and the delivery of humanitarian assistance to refugees.  It decides that the mandate of the United Nations Mission in Sudan should include facilitating voluntary return of refugees, protecting returning refugees, and establishing a presence in Chad and Central African Republic refugee camps

The resolution requested the UN SecretaryGeneral to report to the Security Council on the security of civilians in refugee camps in Chad.

Yet, despite all the many ways in which the Sudanese refugee situation is addressed, there is not even a hint of a call on states to protect these refugees. There is not even a word of commendation for those states who have done so.  The notion that there might be some sort of linkage between other states’ protecting Sudanese refugees and ending human rights violations in Sudan is totally absent.

A second way in which the international system fails to make the connection between promoting human rights and protecting refugees is the poor record of refugee resettlement even of nationals from countries with the worst human rights record.  Every year the Office of the United Nations High Commissioner for Refugees identifies cases in need of resettlement.  It has many such cases of Burmese and Sudanese.  Yet, year after year, the settlement targets the UN sets are met with great difficulty, if at all.

In 2009, the Office of the United Nations High Commissioner for Refugees identified 30,542 Burmese in need of resettlement and placed 24,784

5,758 identified as in need of resettlement, or about twenty percent of those in need of resettlement were not placed.

There is a similar story for Sudan. In 2009, the Office of the United Nations High Commissioner for Refugees identified 1,351 Sudanese refugees in need of resettlement and placed a number so small that the figure did not make the UNHCR list of top ten nations.  Tenth, in terms of placements, was Ethiopia refugees with 876 placements.  Sudanese refugees must have been less.

What is striking is not only that the placement failure rate for both sets of refugees is so high, but also that the absolute numbers are so low.  The failure of the international community to offer resettlement to this tiny number of refugees already identified by the UN as needing resettlement speaks volumes about the international community disconnect between human rights and refugee protection.

Moreover, what are the regimes in place in Burma and Sudan expected to make of these resettlement failures?  The message they convey undercuts the efforts of the international community to enhance respect for human rights in these countries.

Iran

Iran, like Sudan and Burma, is the target of international human rights condemnation. The United Nations General Assembly in recent years has passed, each year, a resolution condemning human rights violations in Iran. This past March 2011 the United Nations Human Rights Council decided on the appointment of a special rapporteur for Iran, the first new special mechanism created by the Council since its inception in 2006.

Yet, when it comes to refugee protection and resettlement, there is something amiss, the refusal to protect the residents of Camp Ashraf in Iraq, members of the People’s Mujahideen of Iran (the PMOI) or the Mujahideen al Khalq (MEK).   The PMOI has been listed as a terrorist entity in the European Union, Canada, the United States and Australia.

A bit of explanation of the name is appropriate. The word “mujahideen” has different connotations in Arabic and Farsi.  In Arabic, the word “mujahideen” has come to mean “fighters for God”.  In Farsi, “mujahideen” are considered “fighters for freedom”.

The name, to those familiar with the Arabic connotation of the word “mujahideen”, gives the impression that the group is Islamic fundamentalist.  However, it is just the opposite, a secular movement.  Indeed, that is the main objection the mullahs have to the PMOI, that they are not religious.

In the exaggerated rhetoric of the mullahs, the PMOI are enemies of God.  Being an enemy of God is an offence in the Iranian criminal code, punishable with death.  The regime has murdered adherents of the PMOI in the thousands because of their secular beliefs.

It is hard to know why the Western listing of the PMOI as a terrorist entity occurred.  The listing states have not identified the PMOI with any terrorist acts.  Writer Ali Safavi, in a sequence of articles in the Huffington Post, has run through a speculative list of possible acts that the listing states might have, in secret, attributed to the PMOI and shown that they were either not terrorist acts or that they were acts perpetrated by some other entity.

When the matter has gone to court, as it did in the United Kingdom and the European Union, the courts, after looking behind closed doors at the security service files of the listing states, have said publicly that there is nothing there.  The European Union, as a result of these court cases, has now ended the listing of the PMOI as a terrorist entity.

The most plausible explanation for the listing is that it was done as a sop to the regime of the mullahs in an attempt to further negotiations on the nuclear file.  That strategy, if that is what it was, has been ineffective.  Iranian nuclear weapons development continues.

Though there are PMOI elsewhere, the leadership of the PMOI is concentrated in Camp Ashraf in Iraq.  The Camp has 3,400 residents.  The residents are unarmed and have renounced individually the use of force.

When the Multi-national Forces under American leadership controlled Iraq, the residents of the Camp were designated as protected persons under the Geneva Convention for the Protection of Civilians in Time of War.  With the withdrawal of the American troops, the protection these troops gave has gone. A United Nations permanent observer post stationed in the Camp left when the Americans left.

The current Iraqi regime is friendly to the Government of Iran. Many of its members lived in Iran during the rule of Saddam Hussein.

Iraqi forces have set around the Camp hundreds of loudspeakers blaring threats of mass killing around the clock, a form of psychological torture.  Access of family, friends, media, lawyers and visiting dignitaries is denied.  Materiel for maintenance of the Camp (which is in reality, a village with permanent structures) is blockaded. The residents are denied egress for medical help and medical personnel are denied entry.  The Iraqi regime has threatened the residents of the Camp with forcible relocation to an uninhabitable, abandoned desert jail, far from any other habitation.

Iraqi forces have attacked the Camp violently on a couple of occasions, in July 2009 and April 2011.  In the first attack, the attacking forces killed eleven innocents and wounded five hundred.  Videos show that many were killed and injured by armed Iraqi vehicles running down and running over scrambling, fleeing residents. In the second attack, the attacking forces killed thirty six innocents and wounded three hundred and fifty.

The Office of the United Nations High Commissioner for Refugees (UNHCR) has not recognized the residents of the Camp as a group as prima facie refugees.  The UNHCR is concerned that the Camp maintains a military character even though the PMOI renounced the use of force now ten years ago, in 2001.

The UNHCR insists that those who want to make refugee claims leave the Camp.   This amounts to a request that the residents of the Camp abandon their right to freedom of association in order to assert their right to protection.

Some two hundred residents nonetheless did leave the Camp and made claims.  The UNHCR recognized them all as refugees.  But refugee resettlement countries offered only two of this sub-group resettlement places.

How seriously does the Iranian regime of the mullahs take the international opposition to its human rights violations, when it can attack and kill abroad through surrogates what it sees as its principal political opponents and there is no serious attempt to offer the victims protection?   Promoting human rights in Iran here means, as it does elsewhere, protecting refugees from Iran.

China

China is too big a player on the international scene for there to be any hope of a resolution condemning its human rights violations in the Security Council, the General Assembly or the Human Rights Council. In the Security Council, China has a veto.  In the General Assembly and Human Rights Council it carries too much weight, has too many friends for there to be a hope of condemnation.

China is subject to the Universal Periodic Review, the thematic mechanisms of the Human Rights Council and the UN Committee against Torture established under the Convention against Torture, since China has ratified that Convention.  But China just shrugs off the criticism that these mechanisms generate.   Because the options for condemning China’s human rights violations are limited, the importance of the remaining options is heightened. In that context, refugee protection as a form of human rights protest looms large.

Yet China generates a refugee population which is far too often denied protection in asylum proceedings for unsound reasons. I refer in particular to practitioners of Falun Gong.

Falun Gong is a set of exercises with a spiritual foundation, begun in 1992 with the teachings of Li Hong Zhi.  First encouraged by the Communist Party of China and the Government as beneficial to health, its rapid spread, its spirituality and its non-Communist ideology eventually generated jealousy and fear amongst Party cadres that the Party would lose its ideological supremacy.

The practice in 1999 was banned.  Practitioners were arrested and asked to recant.  If they did not, they were tortured.  If they did not recant after torture, they were disappeared. The disappeared, in the tens of thousands, have been killed for their organs sold at high prices to transplant patients

They represent, according to the UN Special Rapporteur on Torture, two thirds of the torture victims in China.  Thousands of documented individual named cases have died through this torture.  They represent about half of those detained in the arbitrary detention re-education through labour camps, in the hundreds of thousands.

Simply practising Falun Gong, if you are in China, puts you at grave risk.  Protesting the violations within China is pointless.  Those who do become victims themselves.  The most notable such victim is Gao Zhisheng, not a Falun Gong practitioner, but rather a human rights lawyer who protested the victimization of Falun Gong.  For that, he was disbarred, his staff was fired and his office was closed down. He was beaten repeatedly, tortured severely and disappeared.  His family fled China.  To this day, his fate is unknown.

Given that this is so, as long as a refugee claimant establishes credibility, that he or she really is a Falun Gong practitioner, that should be enough.  In more than one country, in spite of all this, sound, real, legitimate refugee protection claims of Falun Gong practitioners are rejected for the flimsiest of reasons.  The typical rejection goes something like this: Falun Gong is an organization with a membership; the claimant is an ordinary member and not a high profile leader; only the high profile leadership is at risk.

This reasoning is unreal. Falun Gong is not an organization with a membership.  It is a set of exercises with a spiritual foundation.  It is as improper to refer to someone as a Falun Gong member as to refer to someone as a yoga member or a tai chi member.

There are, outside of China, some voluntary associations of some Falun Gong practitioners.  However, there is no obligation to join any of them to practice the exercises.  And these associations have no counterparts within China.

Some Falun Gong practitioners are persecuted worse than others.  But the reason has nothing to do with their place in a non-existent organizational hierarchy.  It has rather to do with the tenacity of their beliefs.  Those who abandon the practice of Falun Gong out of fear are left alone.  Those who refuse to recant are tortured, arbitrarily disappeared and killed.

Individual protests against Chinese government persecution manifest some level of organization, in the sense that some people may tell other people of the protest.  Yet, because there is no formal organization, no one has particular titles or duties.  Individuals take upon themselves, event by event, to do what they want.

The only way someone can obtain a high profile is through media exposure.  The Government of China censors any news about the Falun Gong and blocks out any outside news. It is impossible for a Falun Gong practitioner to obtain a profile in China as a practitioner.

Moreover, in light of the banning and severe repression of Falun Gong, even those most active in protesting the brutality of the regime do everything they can to maintain a low profile.  Anything else would put them at risk.

The Government of China knows who is a practitioner through monitoring e-mails and telephone conversations, spying, informing and denunciations extracted through torture.  These techniques know no hierarchy.  The Government of China has an extensive monitoring, spy and informant network both at home and abroad whose primary task is gathering information about the practice of Falun Gong.  Practitioners in turn react by being as secretive as possible, keeping quiet their practice and protest from as many people as possible, including immediate family members.

It is impossible to say that only some practitioners and not others would come to the attention of the Government of China through its monitors, spies, informants and torture victims.  Monitoring, spying, informing and torture can potentially lead to the detection of any practitioner.  Even if a practitioner does the exercises in his or her home and an informant sees it through the window, the informant can report the practitioner to the police who then, if they are doing their job, will come to take the practitioner away.

A misplaced refusal of a Falun Gong practitioner refugee claim is not only a tragedy for the claimant.  It is a license to China to continue to inflict violations on Falun Gong practitioners.  If refugee protection countries care to protect only Falun Gong claimants who are high profile leaders of Falun Gong organizations, an empty category, then China can persecute Falun Gong practitioners with impunity.

Sri Lanka

The Government of Canada in October 2010 proposed legislation which manifests a regrettably all too common trend, discouraging smuggling by punishing the smuggled

The proposed law provides for mandatory twelve months detention for every member of a designated arriving groups of persons unless the refugee protection claim is finally determined earlier or the cabinet Minister responsible decides that there are exceptional circumstances which warrant the person’s release

It further prohibits members of the designated groups from obtaining permanent residence until five years after a claim for refugee protection

The delay in obtaining permanent residence would lead to a delay in family reunification. The proposed legislation denies to the designated claimants the right to appeal negative decisions other claimants have

The legislation supposedly anti-smuggler but in fact anti-smuggled died in the last Parliament because in that Parliament the Conservative government was in the minority and none of the opposition parties would support it.  The Conservative government in this Parliament has a majority and has reintroduced the legislation

Designation of an arriving group would be by the responsible Minister and not the cabinet.  The legislation sets out designation criteria, but neither the human rights record of the country fled nor the prior position of the Government on that record are proposed criteria.

Although the legislation is not country specific, it was introduced in response to an arrival in October 2009 of 76 smuggled Tamils aboard the MV Ocean Lady.  While it is uncertain who in the future would be designated under the legislation, it is apparent that the government of the day, if the legislation had been in place at the time, would have designated this group of arrivals.

Sri Lanka ended in May 2009 a long brutal civil war between Sinhalese and Tamil forces.  The war, from 1983 to 2009 resulted in 80,000 deaths.  It ended in a frenzy of killing and then mass detention of Tamil civilians.

Refugees fled the war and its immediate aftermath every way they could, often by paying smugglers.  One group of smuggled refugees arrived on the MV Ocean Lady.

One can see the problem this sort of legislation poses for human rights promotion. It violates the rights of refugees.  It mistreats people who have already suffered far too much, piling mistreatment in the country of asylum onto the mistreatment in the country fled.

The civil war in Sri Lanka was sparked by systematic discrimination and exclusion by the Sinhalese majority against the Tamil minority.  The Tamil Tiger response, terrorism and suicide bombings, in order to achieve a separate Tamil state was unconscionable, a crime against humanity, a cure worse than the disease.  The violent overreaction though does not excuse the mistreatment which generated it.  Now that the Sinhalese majority has won the civil war, the very mistreatment of the Tamil minority which engendered it has become worse.  This is a victory without magnanimity.

The Canadian legislation is bad in principle.  But it is even worse in context.  It says to the Sinhalese government, go ahead, mistreat the Tamil minority.  We don’t care.

Because the legislation was introduced in response to the Tamil arrivals, the legislation sends a message to Sri Lanka that we are not concerned about the mistreatment of your Tamil population.  We are more concerned about our own borders and entry policy than what happens to Tamils back home.

The Canadian Minister of Foreign Affairs Lawrence Cannon in April 2009, not that long before the arrival of MV Ocean Lady, issued a statement expressing Canada’s deep concern about the military operations in the northeast corner of the country and reported increases in civilian casualties.  The statement called for full, safe and unhindered access for humanitarian workers to those in need. The Minister offered Canadian humanitarian assistance for internally displaced persons.  The Minister stated:

“Canada holds the Government of Sri Lanka to a higher standard for its actions and obligations than it would a terrorist organization…Canada calls on the government to show leadership in building the confidence of the people of Sri Lanka, which is necessary to support a lasting peace…this conflict cannot be resolved militarily. Our government continues to call for a new, meaningful and durable political solution that will address the legitimate aspirations of all the people of Sri Lanka.”

These were fine words.  But they were unheeded.  The Government of Sri Lanka sought a military solution.  It now believes it has achieved one.  There is no real effort to achieve a new, meaningful and durable political solution which addresses the legitimate aspirations of all the people of Sri Lanka.

When the victims of the failure to follow Canadian advice arrived on our shores, the response of the Government of Canada was to detain the arrivals en masse under the current legislation and propose legislation which would, in the future, impose a host of obstacles to the protection and settlement of such a group.  The fine words of Lawrence Cannon were just forgotten.

A counter argument

The United States Department of State used to issue advisory opinions on the disposition of individual asylum claims.  These advisory opinions were often determinative of claims.

Advisory opinions for claims from countries which were allies or even just friends of the US tended to be negative almost regardless of the human rights records of those countries. US legislation prevents sending arms to human rights violators.  Refugee recognition where the feared agent of persecution is the government is a finding against the government of past or threatened serious human rights violations.  Because the US government wanted to support with arms the governments of Guatemala and El Salvador under siege from Communist rebels, it ended up providing advisory opinions against claimants from those countries to maintain its arms export policy

The end of those advisory opinions, in December 1990, was an advance in American protection for refugees.

This history might seem to suggest that the linkage between human rights policy and refugee determination can be too close, that such a linkage works to the disadvantage of refugee protection.  However, that would be the wrong lesson to draw.  Surely, when human rights policy has gone awry, when human rights policy promotes human rights in name only, then refugee protection is better off without it.  The remedy though in that case is a better human rights policy rather than a divorce between human rights policy and refugee determination.

Conclusion

Failure to protect refugees shows indifference to the plight of the victims.  Protestations of human rights violations coupled with failure to protect refugees is hypocrisy.

When the government on the one hand protests human rights violations in a country and on the other hand fails to offer protection to refugees from that country, the message it sends to violators is that the protestations of human rights violations are mere words, that those who condemn the violations do not really mean what they say.  Failure of protection is a license to violators to continue and increase their violations.

When resettlement states say no to refugees, what violators hear is we can do want we want with impunity, without consequences.  Saying no to refugees emboldens violators, makes violations more likely.

Refugee recognition and resettlement is more than just political.  It is legal.  Refugee determination is a legal process, applying an international law definition to the facts of the case.  Those who are recognised and resettled are given legal status.

Failure to recognise and resettle refugees is also legal, a legal acceptance of the human rights violations which have generated refugee outflows.  A statement by the legal systems of countries failing to recognise refugees more than counterbalances political condemnations of human rights violations.  It outweighs them, because the legal has to be taken more seriously than the political.

The connection between failure to protect refugees and human rights violations would seem to be common sense. The logical consequence of saying no to refugees is acquiescing in violations.

For those who can not now figure this out from logic, there is the Holocaust staring us in the face to tell us the consequence.  Those who want to prevent massive human rights violations must protect refugees.

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David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.  He is a former president of the Canadian Council for Refugees.