Promoting Respect for Human Rights by Protecting Refugees

Promoting Respect for Human Rights by Protecting
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David Matas
Thursday, 30 June 2011 09:56
(Excerpt from remarks prepared for the 2011 Multicultural Week
Celebration Brisbane, Australia, 19 June 2011)


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.


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.

Torture, ‘disappearance’, organ harvesting

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

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

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.


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 recognized and resettled are given legal

Failure to recognize 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 recognize
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.

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


Matas is an international human rights lawyer based in Winnipeg, Manitoba,
Canada.  He is a former president of the Canadian Council for Refugees, and
co-author with David Kilgour of ‘Bloody
‘, the killing of Falun Gong practitioners in China for their


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