Wednesday, July 09, 2008

The Immigration Bill violates the Convention Against Torture

On Election08, Scoop's Gordon Campbell takes issue with the government's Immigration Bill. I've spent a bit of time analysing this particular steaming pile of shit over the past few years, uncovering various delightful clauses which allowed arbitary arrest and indefinite detention, the assertion of truth through secrecy, and allowing them to repeat all the mistakes they made in the Ahmed Zaoui case, such as the use of special advocates and secret justice - moves which have been found to violate human rights in overseas jurisdictions. But Campbell has found something new, something which makes the bill far worse than I thought: while the bill purportedly supports the non-refoulement provisions of the Convention Against Torture, it in fact pisses all over them:

In a welcome move, the Immigration Bill does enshrine various UN conventions – including the Convention Against Torture - in our domestic law. However, in my earlier post, I outlined how the Immigration Bill violates key provisions of that same UN Convention Against Torture – by, for instance requiring ( see clause 122b ) an asylum seeker to prove they would face a worse risk of torture if returned home, than would be usual in their country.
(Emphasis added).

As Campbell points out, this means that the law allows people to be returned to torture and persecution, provided that they're not being tortured or persecuted any more than anyone else in whatever hellhole they come from. This is an express violation of the Convention Against Torture, which states (pretty clearly IMHO):

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
How that danger is to be assessed is defined in the Committee Against Torture's General Comment No. 01: Implementation of article 3 of the Convention in the context of article 22, and its pretty strict. Claimants must establish they are at risk of being tortured, that they have substantial grounds for that belief, and that the danger is "personal and present". But contrary to the bill, "a consistent pattern of gross, flagrant or mass violations of human rights" is a reason to let someone stay, not a reason to kick them out. The CAT imposes a duty to protect people from torture - not to protect them only from "particularly bad" torture, or from being "personally victimised" by torture, but from any torture at all. And I'd expect any New Zealand government of any stripe to support that obligation.

The Committee also had a brief comment on the idea of sending claimants to "safe" third-party countries, a practice advocated in the case of Zaoui and implemented in the bill:

The Committee is of the view that the phrase "another State" in article 3 refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited.
As Campbell points out, there's now plenty of precedent that "diplomatic assurances" not to torture or deport to torture can not be trusted. And yet here we are, trying to hide behind them, so we can wash our hands of people who need our help. It's disgusting, a betrayal of our basic values of decency and a fair go. But its what happens when you let immigration officials interested primarily in finding reasons to keep people out write human rights policy.

(There's more on the subject at Contradiction and The Standard)