Detaining the Displaced

Abstract

Over last few years, public has become increasingly aware of fact that many asylum seekers are imprisoned by very states they flee to search of protection. In February 2002, Australian citizens, including members of church and community groups, organized demonstrations to protest Australian government's policy of mandatory (1) Earlier this year about 240 mostly Afghan asylum seekers at Australia's infamous Woomera detention centre staged a two-week hunger-strike to protest their treatment and a group of Iraqi asylum seekers reportedly dug their own graves to protest their imprisonment Woomera. (2) In U.S., religious leaders publicly criticized U.S.'s mandatory detention of arriving asylum seekers, and press and human rights groups have criticized U.S.'s detention of children--citing, most recently, detention of a disabled teenage asylum seeker from Guinea adult criminal jails for over a year. (3) In wake of September 11 attacks New York and Washington, D.C., some countries have proposed or passed harsh new laws that call for increased detention of non-citizens. The anti-immigrant rhetoric many countries has escalated, at times targeting individuals of Arab or Muslim background. Asylum seekers, often victims of human rights abuses themselves, are more vulnerable than ever current climate. The Executive Committee of UNHCR, Conclusion 44, has denounced arbitrary detention of asylum seekers, stressing that detention should normally be avoided and should be resorted to when necessary and grounds prescribed by law. This is hardly a surprise given Refugee Convention's prohibitions against restricting refugees' movements and prohibitions against arbitrary detention under International Covenant Civil and Political Rights (the ICCPR). In February 1999, UNHCR issued its Revised Guidelines Applicable Criteria and Standards Relating to Detention of Asylum Seekers (the UNHCR Detention Guidelines). The UNHCR Detention Guidelines affirm that [a] s a general rule, asylum seekers should not be detained, and that the use of detention is, many instances, contrary to norms and principles of international law. (4) Urging a presumption against detention, UNHCR Detention Guidelines state that viable alternatives to detention ... should be applied first unless there is evidence to suggest that such an alternative would not be effective an individual case. When a decision to detain is made, Detention Guidelines recommend that such a decision only be imposed a non-discriminatory manner for a minimal period and that procedural guarantees be provided for, including review before a judicial or administrative body independent of detaining authorities and subsequent regular periodic reviews of necessity for continuance of detention. (5) Some states aspire to meet their obligations under international law and standards. Others do not. The articles this volume of Refuge, as well as one article to follow Volume 20.4, examine detention practices of a number of different states--closely examining mandatory detention regimes of Australia and United States, as well as detention practices of Canada, Mexico, and South Africa. Some of these articles address impact of detention vulnerable populations, including children and survivors of torture. The articles also highlight impact of post-September 11 security concerns debate over detention of asylum seekers and detention of individual asylum seekers. As detailed Jaya Ramji's article South Africa's detention system, South African law relating to detention of asylum seekers strives to meet that state's obligations under international law. But law's high aspirations on paper are not met in practice. One striking example concerns South African law's provision of automatic review of detention of asylum seekers by a judge of its High Court. …