Hundreds of Refugees Sent Back to Sri Lanka to Face Torture
IN FOCUS, 17 Sep 2012
Jerome Taylor – The Independent
Returning Tamils would find themselves interrogated and tortured for information.
14 Sep 2012 – The Government is planning to forcibly remove hundreds of Sri Lankan asylum seekers next week despite mounting evidence that many are tortured on their return.
The Independent has learnt that the Border and Immigration Agency has commissioned as many as three separate charter flights to remove more than 300 people next week. Removal directions have been sent out to a numerous evictees stating that two of the flights will take off on Wednesday, with a third planned for Thursday.
It is the first time the Government has pushed ahead with a mass removal to Sri Lanka since June, when more than 50 predominantly Tamil evictees were taken off the plane at the last minute after a senior judge accepted there was credible evidence they could be tortured on their return.
Over the past year there have been multiple examples of Sri Lankans who have been removed to Colombo, only to escape once again to Britain and have their asylum request accepted because compelling evidence of their torture has emerged.
Although some of those on the flight will be visa overstayers and convicted criminals, many are also failed asylum seekers from the country’s Tamil minority who fear repercussions of returning to a nation with a dismal human rights record. Human Rights Watch has already compiled 13 instances in the past two years where Tamils removed from European nations – three of whom came from Britain – were subsequently tortured including reports of rape, beatings and victims being burnt with hot metal rods.
A new report seen by The Independent has uncovered a further 24 cases in which Sri Lankans who voluntarily returned to their homeland were interrogated and tortured. The data was compiled by Freedom from Torture, an organisation that specialises in providing independent medical assessments of torture claims for asylum tribunals.
In many of the cases the same torture methods were described, including beatings with cement-filled plastic piping, bars and wooden sticks as well as burnings with cigarettes and hot metal rods. Sexual assault and rape was also common.
Most of the victims were Tamil students who were forced to interrupt their studies to return home for family matters such as illness, marriage or death. On arrival they would find themselves interrogated and tortured for information over a perceived link to the Liberation Tigers of Tamil Eelam (LTTE), the Tamil nationalist insurgents who were finally defeated in 2009 after a 30-year civil war.
The LTTE – which was designated a terrorist movement by Britain – received funding and support from British Tamils, and although the organisation has effectively ceased to exist, the Sri Lankan government remains paranoid about Tamils abroad.
A spokesman for the UK Border Agency said the Government “only undertake returns to Sri Lanka when we are satisfied that the individual has no international protection needs.” But that stance was seized upon by human rights groups.
“The research shows that the Sri Lankan authorities will stop at nothing to extract intelligence about the activities of the Tamil community in the UK,” said the Freedom from Torture CEO, Keith Best. “Forcing Tamils back… in these circumstances is a highly risky affair.”
David Mepham, director of Human Rights Watch UK, added: “Given the very serious risk of torture facing many Tamils returned from this country, the UK should immediately impose a moratorium on these returns.”
Go to Original – independent.co.uk
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I have no intention to lecture on the “principle of non-refoulement” here in this comment of the TMS, because the legal officers of the UK government know what their government is doing. Nonetheless, however, I believe that I should stress, by using this opportunity, the importance of that principle that is considered as a part of customary international law, not only a provision as stipulated in the Article 33 of the Convention relating the Status of Refugees of 1951 (hereafter written “1951 Refugee Convention”).
Even some scholars debate if the principle of non-refoulement constitutes a part of “jus cogens” or the “peremptory norm”. For example, see ‘Jus cogens Nature of non refoulement,’ published in “International Journal of Refugee Law”, (2001) 13/4. A “jus cogens” is a norm of international law, which any State authorities must comply with, regardless of what. Though the contents of jus cogens are debated among scholars, the International Criminal Tribunal for former Yugoslavia, for instance, pronounced on 10 December 1998, in the Anto Furundzija case, that the “prohibition of genocide” is a jus cogens. If the prohibition of genocide constitutes a part of jus cogens, why not the principle of non-refoulement?
For more information on the principle of non-refoulement, visit: http://en.wikipedia.org/wiki/Non-refoulement and/or http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=438c6d972
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For the convenience of the general readers of the TMS website, let me cite the Article 33 of the 1951 Refugee Convention as follows:
Article 33. – Prohibition of expulsion or return (“refoulement”)
1. 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 social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
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At the time of writing this comment, it is unlikely that the second paragraph of the Article 33 can be applied to most of hundreds of Sri Lankan asylum seekers. But it is highly likely that the first paragraph of that article can be applied to most of these Sri Lankan asylum seekers.
Although the asylum seekers has the right to seek asylum and the right to enjoy asylum (the first paragraph of the Article 14 of the Universal Declaration of Human Rights), it is the State that has the right to grant asylum to the asylum seekers (the first paragraph of the Article 1 of the Declaration of Territorial Asylum of the UN, 1967). That means that the State does not have the obligation to provide the asylum seeker with the asylum even though the asylum seeker requests the asylum. Although these two declarations are considered as “soft law”, they can be used as guidelines or references in understanding and practicing the right(s) of asylum. (In fact, soft law is as such.)
Even if it is difficult for the British government to provide the hundreds of the Sri Lankan asylum seekers with the asylum all at once, the government knows that one of the first steps in solving the asylum/refugee problem is the “burden sharing with relevant or neighboring countries” (such as with other EU countries, in the current situation). But it seems that the British government, before taking any substantial action for the burden sharing with relevant or neighboring countries, decided to send the Sri Lankan asylum seekers to Sri Lanka.
Before developing any more argument on the British government’s decision, I would like to know the reason(s) why the British government decided to send the Sri Lankan asylum seekers to “territories where his [their] life [lives] or freedom would be threatened on account of his [their] race, religion, nationality, membership of a particular social group or political opinion”. The British government knows the importance of the principle of non-refoulement. Nonetheless, the government decided to breach it. There must be a serious reason(s) for that. Is the reason deeply political so that the government is reluctant to reveal it?
May the Sri Lankan asylum seekers’ human rights be respected.
PS:
Even though the State does not have the obligation to provide the asylum seeker with the asylum as mentioned above, the State has the obligation to comply its act with customary international law, including the “principle of non-refoulement”.
It is very often that it is difficult or impossible for the State to provide a large number of asylum seekers with the asylum at once. This is one of the main reasons why the asylum seekers’ request for asylum is refused. And this is why the burden sharing with relevant or neighboring countries (in solving an asylum/refugee problem) is essential as mentioned above. Did the British government seek for the burden sharing with relevant or neighboring countries in solving the asylum problem this time? If not, why? That is one of the main questions regarding the British government’s decision to practice “refoulement”.
Once again, may the Sri Lankan asylum seekers’ human rights be respected.
After I wrote the above comments, some people argue that the Article 33 of the 1951 Refugee Convention uses the word a “refugee” (in the sense that is defined in the Article 1 of the Convention), whereas an asylum seeker is not yet recognized as a “refugee”. Therefore, it is legitimate (or not illegitimate) for the British government to send the asylum seeker “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. [Is that argument a kind of “devil’s advocate”?]
To that argument, I would say that the statutory interpretation should be done according to the main purpose(s) of the statute. (It can be referred to as “ejusdem generis” and/or as “noscitur a sociis”.) What is the main purpose of the 1951 Convention? To provide an asylum seeker (who does not have a legitimate status) with a “legal status as a refugee” so that he or she is legally protected. On top of that, it is generally understood that the word a “refugee” in the Article 33 includes an asylum seekers. http://www.unhcr.org/refworld/pdfid/45f17a1a4.pdf
Thank you for your understanding. Thank you for thinking about the possible grave consequence(s) of “refoulement.”