SPENCER ZIFCAK. Government Policies globally and the Torture of Refugees

Nils Melzer is the UN Special Rapporteur on Torture and Cruel, Inhuman and Degrading Treatment. Recently, he presented a damning report to the UN Human Rights Council on the subjection of refugees across the world to torture. Melzer’s fundamental contention was this. The primary cause for the massive abuse suffered by refugees globally is neither migration itself nor organized crime. Instead, it is the inexorable trend amongst States to base their official refugee policies on deterrence, detention and criminalization rather than on protection, human rights and non-discrimination. 

I am a measured person. Reason is my first strategy. But, nevertheless, I think it’s time for the nation to consider the probability that this country is responsible for torture and cruel, inhuman and degrading treatment –  not only directly domestically but also indirectly internationally. A noticeable number of the 7 million torture victims worldwide is likely down to us. 

In his extensive evidence-based report, Melzer makes a frighteningly persuasive case. The abuses suffered by refugees and asylum seekers globally include countless cases of torture, rape, enslavement, trafficking and the infliction of serious physical and psychological damage. While not the only cause of such harm, governments’ leaders and their policies, he argues, bear the principal responsibility for the vast, unbridled, human tragedy that has unfolded.

It’s worth following the argument closely because it elucidates almost all the central benchmarks against which contemporary governments’ refugee policies should be evaluated. And that includes Australia’s.

The report provides some startling statistics regarding the scale of the current refugee crisis. Approximately 25 million people have fled persecution in their home countries. A further 40 million people have been internally displaced, many of whom will become refugees in the future.

The vast majority of migrants take safe, sanctioned and regular pathways to their new destinations. But still, huge numbers are unable to do so. This is because States have adopted increasingly restrictive and obstructive migration laws, policies and practices. This trend has pushed growing numbers of asylum seekers outside official immigration channels and into irregular routes and desperate actions in the hope of reaching safe harbour. Melzer’s report finds, that this has resulted in the adoption of methods of migration characterized by lack of transparency and oversight, corruption, violence and abuse.

Such policies vary from country to country but a clutch of the most harmful may readily be identified. These include repression and detention ‘designed to discourage new arrivals, the criminalization and deterrence of irregular arrivals, the separation of family members, inadequate reception conditions and medical care, and the denial or excessive prolongation of status determination or habeas corpus proceedings including expedited returns in the absence of such proceedings.’ The report singles out long-term, off-shore detention on isolated islands or extra-territorial enclaves as a particularly traumatic form of migration-related confinement.

A recent study of some 12,000 asylum seekers across many countries determined that on average 27% of participants experienced some form of torture. At the global level, this suggests that some 7 million people have been tortured in the course of having taken flight from civil war, ethnic and religiously motivated violence, and large-scale governmental persecution.

In evaluating the effects of adverse government policies, the report focuses in particular on migration-related detention and non-refoulement. Non-refoulement is the tenet of international law that forbids States to return people seeking asylum to the country from which they have fled persecution.

The International Refugee Convention, to which Australia is a party, provides that asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims, assess their health and determine their identity if this is in doubt. If detention is to extend for longer, it must be justified by reference to the individual circumstances of the person involved, for example, because there is a real risk that they may engage in criminal activity.

To confine refugees for years, and even indefinitely, is arbitrary detention. This is a serious violation of the terms of the International Convention Against Torture and the International Covenant on Civil and Political Rights to both of which Australia is a party. Long-term detention is designed to create an anxiety in detainees that confinement may be indefinite and to maximize uncertainty, unpredictability, frustration, anger and psychological harm.

Detention should not be mandatory. Long-term mandatory detention is properly regarded as a form of punitive, collective incarceration inconsistent with the international rule of law.

Despite all this, it has become apparent that multiple States now use arbitrary detention as a coercive means of prompting vulnerable asylum seekers to withdraw their requests for asylum in order to return ‘voluntarily’ to the countries from which they have fled.

Another punitive means of achieving the same result is the establishment by States of appalling reception and detention conditions. The many problems identified in this regard have included overcrowding, insufficient access to food, water and medical care, prolonged solitary confinement, and deliberate abuse by State officials, private guards, fellow detainees and, occasionally, local citizens.

Such abuse has consisted of torture and ill-treatment, systematic extortion, rape, beatings and sexual assault. While not every instance of arbitrary detention will amount to torture, there is a clear link between the two prohibitions.

The second major problem identified in the report concerned violations of the principle of non-refoulement. This occurs when deporting countries consciously set in place conditions and authorize actions the effect of which is to mandate or encourage the return of refugees, either to their home countries or to neighbouring countries whose records with respect torture and ill-treatment may be even worse than their own.

International law prohibits refoulement in circumstances where a deporting State takes action that it knows or ought to have known would expose a person to a real risk of torture or ill-treatment in a territory and by government officials or security personnel beyond its control.

Melzer’s report is really interesting in this respect because he describes and engages with practices that constitute a form of constructive refoulement. He cites a number of examples. Placing asylum seekers in intolerable conditions before or after their applications for refugee status are determined is a practice plainly designed to discourage them from staying. It amounts, as the Rapporteur writes, to ‘refoulement in disguise’.

It is the same with mandatory long-term or indefinite detention. The prospect of detention without end is calculated to create in the minds of victims a state of helplessness and despair from which escape appears imperative.

It is the same when one State agrees with another that transfers will occur between them, subject to the latter’s diplomatic assurance that no harm will come to the transferees. The Special Rapporteur has expressed his grave alarm at the complacency and acquiescence implicit in the use of diplomatic assurances for selective compliance with the prohibition of torture and ill-treatment. Diplomatic assurances conveniently free the deporting State from conducting rigorous and individualized risk assessments.

The report deals finally with ‘pushbacks’, another form of constructive refoulement.  On land, pushbacks are achieved by building walls. At sea, they are affected by intercepting migrant vessels and hauling them back to the country from which they originated. The fault of pushbacks is that they deprive people seeking asylum of the right to seek international protection and to have their cases individually considered and determined. They are a cruel, and often dangerous, form of collective rejection.

So, where does Australian Government policy stand in relation to these considerations? The answer is that there is not one adverse policy or action described here in which the Australian government does not engage.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and a former President of Liberty Victoria. 

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