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Submission to the National

Inquiry into Children in Immigration Detention from

Action for Children, South

Australia


SUMMARY

OF RECOMMENDATIONS

Part

I - THE SITUATION OF CHILDREN AND FAMILIES DETAINED IN WOOMERA

Part

II - THE MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF IMMIGRATION

AND MULITCULTURAND AND INDIGENOUS AFFIARS (DIMIA) AND THE SOUTH AUSTRALIAN

DEPARMENT OF HUMAN SERVICES (DHS) RELATING TO CHILD PROTECTION NOTIFICATIONS

AND CHILD WELFARE ISSUES PERTAINING TO CHILDREN IN IMMIGRATION DETENTION

IN SOUTH AUSTRALIA

Part

III - The UNHCR Guidelines on the Protection of Women

Part

IV - The Importance of Accurate Country Information


Action for Children,

South Australia is a community-based organisation that focuses on the

rights and interests of children. One aspect of its mandate is to put

forward suggestions for changes in government policy that will improve

the health and well being of children. The organisation supports the use

of the Convention on the Rights of the Child as the basic framework document

for seeking to improve the status of children in Australian society.

During January 2002

the Chair of the organisation had an opportunity to visit the Woomera

detention Centre. Several families were interviewed in an effort to gain

a better understanding of the situation facing children and their families.

In addition the Chair and another member of the Coordinating Committee

had an opportunity to interview families who had been released on Temporary

Protection Visas. The information contained in the first section of this

Submission is based on those interviews. In addition to providing HREOC

with our observations about the conditions in Woomera, we also set out

the views of the detainees about how their situation could be improved.

The second part of

our Submission focuses on the Memorandum of Understanding between the

government of South Australian and the Minister for Immigration with respect

to the protection of children from abuse and neglect. We believe that

it is impossible for the Department of Human Services of the State of

South Australia to carry out its statutory obligations with respect to

the protection of children in light of the powers granted to the Minister.

This is particularly true with respect to unaccompanied minors where there

is a conflict of interest between the Minister's role as guardian of these

children and young people while at the same time being responsible for

the policy decisions that lead to their detention.

A third issue addressed

below is the failure of the Minister to ensure that the rights of the

girl-child are protected and promoted in Woomera. This section of our

submission relies on the UNHCR Guidelines for the Protection of Refugee

Women.

The final part of

our submission is designed to increase awareness of the human rights situation

that gave rise to the flight of asylum seekers. In order to understand

the nature of the trauma experienced by those seeking our protection,

it is necessary to gain a better understanding of the nature of the persecution

they have faced. Australia's policy with respect to asylum seekers should

be based, at least in part, on recognition that this group is a particularly

vulnerable population group.


SUMMARY OF RECOMMENDATIONS

  • The mandatory

    detention of asylum seekers for prolonged periods of time will inevitably

    lead to conditions of detention that will harm the physical and psychological

    well being of children and young people. Therefore we urge HREOC to

    recommend that mandatory detention of asylum seekers be abolished.

  • We recommend

    that steps be taken to ensure that asylum seekers are properly informed

    of their rights under Australian law immediately after their arrival

    and before they file their claim for refugee status.

  • We recommend that

    measures be taken to ensure that asylum seekers have access to legal

    representation from the initial stages of their detention in line with

    the views put forward by the UNHCR.

  • We endorse the

    recommendation of the South Australia Coalition for Refugee Children

    that the privative clause in the Migration Act be removed because it

    denies asylum seekers access to a fair trial and is a denial of due

    process. These are rights required to be accorded to refugees and asylum

    seekers in accordance with international law.

  • We recommend that

    immediate steps be taken to ameliorate the conditions in Woomera and

    that specialists in child development be employed to advise on and oversight

    this work. Families should be consulted about their desires and needs

    before any work commences. Women and girls should be included in decision-making

    processes.

  • We recommend

    that non-government organisations and individual community members wishing

    to donate their time to work with asylum seekers be given access to

    Woomera. We endorse the views put forward on this issue by the South

    Australian Coalition for Refugee Children.

  • In line with the

    recommendations of the UNCHR with respect to racism and intolerance

    we believe the government has a responsibility to put in place a public

    relations campaign to promote public opinion favourable to the asylum

    seekers.

  • HREOC should

    recommend that some controls be placed on the power of the Minister

    to make final determinations in the area of abuse and neglect. An independent

    body with the power to oversight the implementation of recommendations

    should be created. The Minister should cede authority in the area of

    abuse and neglect to this body.

  • HREOC should recommend

    that a procedure be put in place to ensure that all unaccompanied minors

    have a legal advisor who is in close geographic proximity to the child.

  • Gender advisors

    should be appointed for each detention facility in Australia in keeping

    with the UNCHR Guidelines on the Protection of Refugee Women (the Guidelines

    apply to the girl child).

  • In keeping with

    the recommendations of the UNHCR guards who are in contact with refugee

    women should receive training on the rights of women.

  • Structures should

    be put in place in all detention facilities to ensure that women are

    able to participate in decision-making and planning.

  • We recommend

    that cultural awareness programmes be put in place for all medical staff,

    whether at Woomera, the Woomera hospital or the medical specialists

    located at Port Augusta and Adelaide.

  • We recommend that

    measures for cross-cultural training for adjudicators be put in place.

    Such programmes should include information about the situation faced

    by women in their countries of origin as well as the specific forms

    of persecution experienced by women. Women interviewers should be utilised

    at all stages of the claim determination process.

  • We recommend

    that better procedures be put in place to ensure that the Refugee Tribunal

    has all pertinent information with respect to the countries of origin

    of the asylum seekers appearing before it. Migration agents may need

    training in accessing relevant United Nations documents.

  • DIMIA should

    ensure that ACM management receives appropriate background information

    about the human rights situation in asylum seekers' countries of origin.

    This will assist in the proper training of guards and other personnel.

    All service providers, particularly counsellors, educators and health

    professionals should receive suitable information about asylum seekers'

    countries of origin so that they can better understand the backgrounds

    and needs of their clients.


Part I - THE SITUATION

OF CHILDREN AND FAMILIES DETAINED IN WOOMERA

A - The Conditions

in Woomera

  • One of the issues

    most frequently raised by families was the lack of sufficient leisure

    and recreational activities. Parents of younger children indicated that

    there was a dire shortage of toys and play equipment. There is very

    little access to art supplies.

Adolescent girls

complained about their inability to pursue hobbies such as sewing and

tapestry work. Young men stated their frustration at not being able to

play sports such as basketball. Adult families members were interested

in having access to board games such as chess.

Parents were very

aware that the paucity of leisure and recreational activities meant their

children had no physical release for their pent-up energy and that the

lack of access to hobby and craft materials meant there was little ability

for children to develop their creativity. All of the parents interviewed

expressed concern for their children's ability to develop intellectually,

physically as well as emotionally.

One young man observed:

All you can say is that you are alive, but this isn't life."

  • There is a cycle

    of frustration and depression developing in many families. Parents feel

    frustrated at the situation of their children and are upset at their

    inability to improve the situation. This lack of control leads to a

    sense of hopelessness and then to depression. Children and young people

    are aware of their parent's feelings. They then try to protect their

    parents by not letting on that they are feeling upset. Parents are aware

    that children are trying to act brave in an attempt to make them feel

    better. To the parents it feels as if they are caught in a black vortex

    that is dragging them constantly downward.

  • Connected to the

    above is parents' sense of guilt at not being able to protect their

    children from the negative effectives of being in detention. One mother

    observed that her "children have lost the opportunity to be brought

    up in the innocence of childhood." One set of parents said they

    were worried that their youngest child's only memory so far was of a

    detention centre.

Many of these children

have witnessed acts of self-harm, riots, acts of violence committed in

attempts to subdue the riots, the use of water cannons, hunger strikes

and lip sewing. Parents are acutely aware that witnessing such events

is detrimental to their children's emotional and psychological well-being.

They expressed their frustration at not being able to protect their children

from these events.

  • A problem not

    often discussed is the tensions that can arise among familles when they

    come from such different backgrounds. For some families their children

    have to face taunts from individuals of the very groups that may have

    persecuted them back home. For women and girls whose families do not

    follow strict Muslim dress codes they are being forced to change their

    habits in order to avoid being the subject of abusive comments. Little

    effort is made in the detention centre to discuss these difficult issues

    and no effort has been made to find workable solutions for what is an

    obvious source of stress. This issue is discussed in greater detail

    in Part III below.

  • When families

    live in close quarters there can also be strained relationships over

    matters such as the appropriate level of discipline for children. At

    times some of the sole mothers have had to protect their children from

    what they consider inappropriate disciplinary measures from non-relatives.

    Some single males have smacked children even when they were aware that

    the child's parents did not consider this acceptable. We recognise that

    this is a matter that requires extensive discussion and negotiation

    but remain concerned that little is being done to resolve these matters

    to the satisfaction the children and their parents.

  • There was also

    some disquiet about the behaviour of a small number of guards who either

    humiliated parents in front of their children or who made inappropriate

    comments about a child's behaviour directly to the child concerned sometimes

    in front of the child's parents. This nature of the behaviour makes

    it emotionally abusive.

  • Several of the

    children interviewed were on anti-depressant drugs. One adolescent girl,

    an unaccompanied minor, was suicidal at the time of the interview. This

    interview was particularly distressing as this young woman continuously

    asked both the interviewer and the interpreter to assist her to kill

    herself. It took 45 minutes to calm this young woman. She found it impossible

    to believe that she had any real future. She had not been given any

    information about the processing of her claim or efforts to trace family

    members.

Two of the families

interviewed indicated that their children, ages 11 and 12, were bed-wetting.

One child's parents

were very disturbed by their child's artwork. Their child had made a coffin

from play-doh. When asked to explain the significance of the coffin, the

child said that if placed into the coffin this would mean that the child

would be taken out of the centre to be buried. This would be a chance

for the child to run away. The parents are understandably concerned that

the child's symbol for escape is a coffin.

Some parents expressed

concern about the fact that children see illness as the only way of getting

out of the Centre. On occasion some children have had to be taken to outside

doctors and the children view these trips as an opportunity to have a

brief escape from detention.

  • A few of the parents

    indicated that their children had expressed their anger to them about

    the situation and accused their parents of being responsible for what

    was happening to them. If is difficult for younger children to understand

    their parents reasons for seeking to flee their country of origin. One

    child told their mother: "You promised me many things. Why did

    you tell me lies if you knew we were coming here?"

  • The amount and

    quality of education provided to children was another major source of

    frustration for those interviewed. Many children had had little formal

    education since arriving at Woomera. Some had had two hours per day

    in the period preceding the 2001 riots. Parents and older children indicated

    that the lessons were not always well organised. Classes did not cater

    for the needs of different groups. Some children had received a high

    quality education in their country of origin while others had had little

    access to formal education. The differing needs of these groups had

    to be addressed. Parents and older children who had had access in their

    countries of origin to English language classes were very disappointed

    in the quality of the instruction they received at Woomera stating that

    the lessons did little more than cover the alphabet. Many children stopped

    going because of this. One adolescent observed that she thought the

    teacher did not understand that the children's failure to participate

    was caused by the fact that the lessons were "too simple."

Older children expressed

their worry about the fact that the lack of schooling will affect their

future prospects in life. They want to be in school and they want the

chance to succeed in life.

  • A common complaint

    was the inability to access appropriate medical care when needed. One

    mother of three realised she was having a miscarriage, but was told

    by a nurse that she was mistaken and that she should take a Panadol.

    The mother did in fact have a miscarriage. There is a sense among the

    parents that they are not being listened to and that they are being

    treated as if they have no understanding about their own health. There

    is often a delay in telling detainees about the results of medical tests

    they have undertaken.

Some of those interviewed

wondered whether the failure of ACM management to carry out recommended

tests was a cost saving measure. They expressed the view that if tests

were postponed until after their release, then ACM would not be responsible

for the cost. (This proposition was not put to ACM management and we do

not suggest that it is a fact, rather we report it here as it indicates

the views held by the detainees.)

Another view expressed

by some detainees was that the government did not want to pay for complicated

medical procedures until it was clear that the person would be granted

refugee status. One person was very angry about the failure to provide

her with appropriate treatment and said she felt as if the government

didn't care if she lived or died. (Again no attempt was made to discuss

this situation with government representatives. The information is being

recounted in order to give HREOC information about the state of mind of

the detainees.)

A few of those interviewed

expressed their disquiet at the behaviour of the guards who they claimed

sometimes delayed their access to medical treatment. They felt as if the

guards were using access to the medical centre as a measure of control.

  • Another area of

    concern was the lack of transparency in the visa application process.

    Those interviewed indicated that they were given very little assistance

    in putting forward their claims. Some of the interviewees questioned

    the process by which the government obtained country information. They

    felt their countries of origin were being asked to supply information

    about their particular situation, and observed, what country would admit

    that it intended to persecute someone if they were returned to that

    country. One interviewee stated: "How could anyone believe a government

    would give information showing that it violated people's rights?

Another couple stated

that they found the visa processing system illogical. They are being asked

to supply proof about their treatment in their country of origin, in particular

proof about the treatment of their religious group, yet the only proof

they could get is from the government. They pointed out that the government

is unlikely to admit that it would hang them or stone them if they returned.

It appears that few

of the interviewees had had a full explanation of the visa application

process and that there was a real lack of understanding about the criteria

the Refugee Tribunal used to make its decisions. One family could not

understand how some members of their family had been granted Temporary

Protection Visas while other members of the family had been refused visas.

  • The failure of

    ACM to try to accommodate the interviewee's desires to have some culturally

    appropriate food was commented upon by a number of the interviewees.

    While recognising that they could not have familiar foods on a regular

    basis, the interviewees wondered why it would not be possible to have

    special meals from time to time. It was obvious that all of the interviewees

    are experiencing elements of homesickness. There are many things they

    miss about their former lives and having the occasional special meal

    would help alleviate some of their longing for things familiar. Related

    to this is the desire some families expressed to be able to cook some

    of their meals in their living quarters. This would give them some sense

    of control over aspects of their lives.

  • There is no effective

    complaints mechanism at Woomera. Interviewees indicated that there were

    few opportunities to make their views and concerns known. Occasionally

    DIMIA officials asked some asylum seekers if they had any problems but

    little changed when people did complain. There was never any feedback

    about the steps that had been taken to bring their concerns to the attention

    of ACM.

  • Some of those

    interviewed expressed their belief that they were being punished without

    being given any reasons for that punishment. One of those interviewed

    said he felt that there was a lack of justice in the Australian legal

    system

B. The Need to

put a human face to asylum seekers

It appears from reports

in the media and the comments made on some talkback radio programmes that

parts of the Australian community have a negative impression of the asylum

seekers. HREOC when drafting its final report should make an attempt to

put a human face to the asylum seekers. We believe that the Australian

community needs to be made aware of the dire situation many of the asylum

seekers faced in their countries of origin. Furthermore it is important

that we learn more about the individual life experiences of the asylum

seekers.

Many in the Australian

community would not appreciate that some of the asylum seekers come from

backgrounds that are not dissimilar to their own. These were middle class

families whose children went to school, played in parks, learned to work

with computers and engaged in sporting activities. They were families

who shared holidays together, went on excursions on their days off from

school and work and enjoyed being with their extended families.

These families did

not leave their countries of origin because they wanted a better life.

Most of them will not be able to achieve the economic prosperity here

they had in their countries of origin. Some left because their efforts

to have their countries of origin become more democratic led to them being

bashed and/or arrested. A number of the families interviewed had had their

passports confiscated by the security police in their countries of origin.

In some families, children witnessed parents being beaten by the security

police.

Other families left

because they faced acts of persecution as a result of their religious

beliefs. With respect to two of the families interviewed it was the children

of those families that suffered particularly heinous acts of persecution.

Families had to endure watching their children being targeted by schoolmates.

These families lived in circumstances where they could not rely on the

legal system to protect them.

Some of the asylum

seekers came from rural backgrounds and had little access to the comforts

we take for granted. They had to endure years of persecution from the

Taliban who viewed them as cannon fodder.

None of these families

had any knowledge of Australia's policy with respect to asylum seekers.

They were desperate to leave and those organising their trips told them

that Australia was a country that respected diversity. In their desperation

these families wanted to believe the positive things they were hearing

about Australia.

During their voyage

they endured horrendous conditions. Some were in boats that had not been

stocked sufficiently with food and water. One family indicated that during

their voyage they did not have water for the final 4 days they were at

sea. Others were in boats that leaked so badly that they had to sit in

seawater for the entire trip. Conditions on these boats were unsanitary.

A number of the children developed gastroenteritis.

These families feel

as if they are being punished because they had faith in Australia's willingness

to treat them fairly. As a society we need to ask ourselves whether this

is the way we want to treat desperate people seeking relief from persecution,

the majority of whom will one day become our fellow citizens.

C. Recommendations

for Improving the Conditions at Woomera - the Voice of Asylum Seekers

During the interviews

conducted by the Chair of our organisation, the interviewees were asked

their views about how the situation at Woomera could be improved. Below

are the suggestions they made.

1. An investigation

should be undertaken with respect to the conditions at Woomera.

2. Detainees should be treated with respect.

3. Children should be given more toys and items such as bicycles.

4. There is a need for more activities to be available for younger children.

A pre-school should be established for children under 5.

5. Children should have access to a proper playground.

6. Child should not be detained in a place where there is no access

to nature. Children need to see plants, trees and flowers during the

early stages of their development.

7. There should be swimming facilities and movies; asylum seekers should

be taken out of Woomera in small groups for picnics and other outings.

8. Efforts should be made by groups working for asylum seekers to give

positive pictures of them, as the government is only giving negative

pictures of them.

9. ACM should not be in charge of the delivery of health care services

or education. These services should be delivered by people with expertise

in the management of health care and education.

10. ACM's management of Woomera should be more carefully monitored.

11. Adult asylum seekers should have access to employment or some other

form of constructive activity. People came prepared to work hard and

they find it frustrating that they spend their days with nothing to

do.

D. Messages to

the Australian People from the Asylum Seekers

Asylum seekers were

asked what they would say to the Australian people if they had a chance

to speak directly to them. Their responses are set out below:

  • "I will

    tell them I came for peace and human rights. Have a look at my room.

    I have a row of pictures. I can see nothing else. It is like a dog's

    house. If I were to get of here I would serve this society. I am very

    disappointed with the government."

  • "What

    we have encountered at Woomera is a terrible human rights situation.

    We regret our decision to come to Australia."

  • "We were

    persecuted because of our religion in (country of origin). We escaped

    and wanted to start a new life. We came to you and your government is

    persecuting us. We are persecuted because of our religion. People in

    our country think we are untouchables. Why do you suggest we go back

    when we would have not right to breathe there?"

  • "Many

    of the problems people see on the TV screens are the result of detainee

    frustration. Counselling is needed to help people cope with the loss

    of self-esteem and self-respect. The frustration is agonising. Please

    save detained families. We came from families, good families. We are

    suffering."

  • "How can

    the Australian government say this is a lifestyle choice when we gave

    up everything to come to Australia? I believe you (referring to Australians)

    are nice people, peace seekers, you support unity. If you come to see

    us behind the fence, think about how you would feel. Are you aware of

    what happens here? Come to see our life."

  • "When

    I left my country I was ready to be loyal to Australia, now I am disappointed

    in this country. I would like to go somewhere else, like New Zealand."

E. RECOMMENDATIONS

  • The mandatory

    detention of asylum seekers for prolonged periods of time will inevitably

    lead to conditions of detention that will harm the physical and psychological

    well being of children and young people. Therefore we urge HREOC to

    recommend that mandatory detention of asylum seekers be abolished.

  • Steps should

    be undertaken to ensure that asylum seekers are properly informed of

    their rights under Australian law immediately after their arrival and

    before they file their claim for refugee status. [1]

  • Measures should

    be taken to ensure that asylum seekers have access to legal representation

    from the initial stages of their detention in line with the views put

    forward by the UNHCR. [2]

  • We endorse the

    recommendation of the South Australia Coalition for Refugee Children

    that the privative clause in the Migration Act be removed because it

    denies asylum seekers access to a fair trial and is a denial of due

    process. These are rights required to be accorded to refugees and asylum

    seekers in accordance with international law. [3]

  • That immediate

    steps be taken to ameliorate the conditions in Woomera and that specialists

    in child development be employed to advise on and oversight this work.

    Families should be consulted about their desires and needs before any

    work commences. Women and girls should be included in decision-making

    processes.

  • That non-government

    organisations and individual community members wishing to donate their

    time to work with asylum seekers be given access to Woomera. We endorse

    the views put forward on this issue by the South Australian Coalition

    for Refugee Children.

  • In line with

    the recommendations of the UNCHR on racism and intolerance we believe

    the government has a responsibility to put in place a public relations

    campaign to promote public opinion favourable to the asylum seekers.[4]

    As stated by the UNHCR "[p]olitical will and resolute leadership

    are needed to de-dramatize and de-politicize the essentially humanitarian

    challenge of protecting refugees and to promote better public understanding

    of refugees and their right to seek asylum." [5]


Part II - THE MEMORANDUM

OF UNDERSTANDING BETWEEN THE DEPARTMENT OF IMMIGRATION AND MULITCULTURAND

AND INDIGENOUS AFFIARS (DIMIA) AND THE SOUTH AUSTRALIAN DEPARMENT OF HUMAN

SERVICES (DHS) RELATING TO CHILD PROTECTION NOTIFICATIONS AND CHILD WELFARE

ISSUES PERTAINING TO CHILDREN IN IMMIGRATION DETENTION IN SOUTH AUSTRALIA

The MOU was signed

at the behest of DHS because of its desire to fulfil its statutory mandate

to protect children from abuse and neglect. The second recital paragraph

states that DIMIA and DHS agree to:

"Ensure appropriate

notification and referral of all cases of possible child abuse or neglect

which occur at places of immigration detention in South Australia to

the DHS."

Such notification

and referral can only take place if guards and other personnel at places

of detention such as Woomera are properly trained and are willing to report

their co-workers. It cannot be assumed that all cases of child abuse and

neglect will be brought about through the actions of parents. Yet it is

difficult to imagine that ACM personnel will report their co-workers for

inappropriate behaviour such as the use of excessive discipline or engaging

in acts that would fall under the Children's Protection Act definition

of emotional abuse. The information obtained from some asylum seekers

suggests that there are guards, albeit a small minority, who are engaging

in forms of behaviour that would fall under the purview of the Children's

Protection Act.

A major hurdle to

effective action by DHS is Section 4 of the MOU that gives DIMIA definitive

authority in these matters. This section sets out the roles and responsibilities

of the two agencies. The relevant paragraphs are as follows:

4.1 DIMIA maintains

the ultimate duty of care for all immigration detainees. That is, the

ultimate responsibility for the welfare of unlawful non-citizens in

immigration detention remains with DIMIA. The day-to-day operations

of detention services have been contracted out by DIMIA to a private

detention services provider.

4.2 DHS has a legal

responsibility to investigate child protection concerns for children

in immigration detention in South Australia. However, any interventions

undertaken to secure the care and protection of detainees must be actioned

by DIMIA. DIMIA will consider carefully DHS recommendations to ensure

that the best interests of the child are protected.

Given these essential

terms of the agreement there is no possibility of ensuring that when abuse

or neglect is occurring as a result of the actions of either ACM or DIMIA

that steps will be taken to stop the abuse or neglect.

Of great concern

is the role of the Minister as guardian of unaccompanied minors. There

is a conflict of interest between the Minister's role as guardian and

his position as the detaining authority of the same minor. It would be

impossible for the Minister to make decisions in the best interests of

an accompanied minor that conflicted with a Ministerial policy. Further

these dual and contradictory roles mean that unaccompanied minors have

no effective recourse when the acts of DIMIA or ACM put their lives or

health at risk. If a guardian other than the Minister were responsible

for a situation that pushed children to acts of self-harm and suicide

we would have no difficulty in saying that the guardian should be dealt

with under the Children's Protection Act. We would also use the law to

protect children whose parents denied them an education or access to health

services.

Because these children

are in asylum detention there is no effective control over the acts of

the Children's guardian both because the Minister is a Commonwealth officer

[6] and because Commonwealth legislation gives the Minister

absolute authority over the lives of these children. This is not a situation

that should be allowed to continue.

HREOC should recommend

that some controls be placed on the power of the Minister to make final

determinations in the area of abuse and neglect. An independent body with

the power to oversight the implementation of recommendations should be

created. The Minister should cede authority in the area of abuse and neglect

to this body.

The UNHCR Revised

Guidelines on Applicable Criteria and Standards Relating to the Detention

of Asylum Seekers (February 1999) state, "minors who are asylum seekers

should not be detained."[7] The accompanying notes

to this Guideline state "[a] legal guardian or adviser should be

appointed for unaccompanied minors." This is not done in Australia.

HREOC should recommend that a procedure be put in place to ensure that

all unaccompanied minors have a legal advisor who is in close geographic

proximity to the child. This advisor should be able to provide the

unaccompanied minor with advice about their claim for asylum as well as

their rights under Australian law.

With respect to

the children detained with their families, there is another issue to be

considered by HREOC. Although these children are nominally under the control

of their parents the situation of the family means that it is in fact

the Minister who has the daily control over the lives of the children.

If this were a school, juvenile detention facility or some other institution

for children state criminal and child protection laws would come into

play. Again, the status of the Minister makes it difficult for DHS and

the South Australian police to carry out their responsibilities to children

who are asylum seekers. From the information available in the public domain

it is clear that children's lives and well-being are being placed at risk

because of the conditions of asylum detention. Children are suicidal,

engaging in acts of self-harm and experiencing severe levels of depression.

The conditions of detention are the cause of development delay in a significant

number of children. If any other institution's behaviour were such that

it caused a child to be suicidal we would have no hesitation in saying

that those acts amounted to child abuse. Similarly parents who failed

to send their children to school or who denied them access to appropriate

medical treatment would have action taken against them for abuse and neglect.

In this situation because it is DIMIA that is engaging in these acts neither

the parents nor DHS have any recourse.

Recent events in

South Australia have highlighted the lack of any effective remedy for

children and young people in asylum detention. A review of Woomera was

undertaken by experts in the field of child protection who found the conditions

at this facility to be unacceptable. The Minister responded by saying

the allegations were exaggerated. Given the Minister's powers it is now

impossible for DHS to pursue negotiations with the Minister and DIMIA.

Having an independent body, as recommended above, that could properly

assess the status of children and order remedial action is necessary if

we wish to protect children asylum seekers from abuse and neglect.


Part III - The UNHCR Guidelines

on the Protection of Women

Women and girl children

have been recognised by the UNHCR as a particularly vulnerable group.

They may have special needs in line with the particular forms of persecution

they had to endure or because they are travelling alone and may have had

to endure persecution or harassment during their flight. [8]

Gender advisors are considered essential if the needs of refugee women

and girls are to be met. [9] We are of the view

that gender advisors should be appointed for each detention facility in

Australia.

A key reason for

having designated staff members focus on the needs of women and girl children

is to ensure that their voices are heard both within their communities

and by centre management. Women refugees no longer have access to traditional

structures that allowed them to express their views. Their understanding

of the needs of their families, particularly their children, are crucial

if services are to be delivered in the most effective manner.

According to the

Guidelines issued by the UNHCR women are to be consulted both about their

protection needs and the types of services that would best meet those

needs. The underlying reason for this is that "[p]rogrammes which

are not planned in consultation with the beneficiaries, nor implemented

with their participation, cannot be effective." [10]

Also of importance is the role participation has in overcoming feelings

of isolation and frustration. Refugees no longer belong to structured

communities and they lack a sense of control over their own lives. Therefore

it is vital that structures be put in place in all detention facilities

to ensure that women are able to participate in decision-making and planning.

One of the issues

noted by the UNHCR is the potential for tension when groups with different

social outlooks are housed in close proximity. This has particular relevance

to Woomera where girl children from religious minorities who suffered

harassment in their countries of origin are put in a situation where they

have no choice but to have daily contact with members of the majority

group who may share the prevailing attitudes in their societies towards

the group.

The cultural backgrounds

of some girl children have not been taken into account by ACM management

in the housing of unaccompanied minors. One adolescent female unaccompanied

minor was housed in a predominantly male compound despite her repeated

requests to be moved. She was subjected to daily taunts from the males

in the compound because of their own cultural prejudices against unaccompanied

women. This situation should never have taken place. UNHCR has recommended

that guards who are in contact with refugee women receive training on

the rights of women. We believe that such a programme should be implemented

at all detention facilities in Australia.

Another issue of

importance to women is the provision of appropriate health services that

are culturally sensitive. Counselling and gynaecological services must

be provided in manner that makes them accessible and non-threatening.

It does not appear that training is offered on a routine basis to all

medical staff having contact with asylum seekers with respect to the cultural

dimensions of their work. We recommend that cultural awareness programmes

be put in place for all medical staff, whether at Woomera, the Woomera

hospital or the medical specialists located at Port Augusta and Adelaide.

The UNHCR has also

noted the importance of providing adequate training to adjudicators with

respect to the rights and problems of refugee women. Such training should

include information about the status of women in their countries of origin

and the various forms of persecution they face. Adjudicators should also

receive training with respect to cross-cultural issues in interviewing

refugee women. Further at the initial stages of assessing a family's claim

for refugee status women should be interviewed separately to ensure their

claims are properly assessed. Women interviewers should be used throughout

the determination process. None of these recommendations have been meaningfully

implemented by the Australian government. We therefore recommend that

measures for cross-cultural training for adjudicators be put in place

and that women interviewers be utilised at all stages of the claim determination

process.

There are a range

of other issues addressed by the Guidelines on the Protection of Refugee

Women that are pertinent to this inquiry and we urge HREOC to consider

the Guidelines carefully when making its final report.


Part IV - The Importance

of Accurate Country Information

Accurate country

information is necessary for several reasons. Firstly to gain a better

understanding of the situation asylum seekers endured in their countries

of origin in order to better address their psychological needs. Secondly

to ensure that migration agents are assisting asylum seekers to put before

the Refugee Tribunal all relevant material so that the Tribunal can make

a realistic appraisal of their case. Thirdly to allow those affected by

the decision-making process of the Tribunal to have faith in the validity

of its decisions. Fourthly to ensure that even if a claim for asylum is

rejected that Australia's obligation of non-refoulement is met.

This obligation is nonderogable.

It is not clear to

us that the country information being relied upon by the Tribunal accurately

reflects the situation in the countries of origin. Many of the families

we spoke with were anxious about the quality of the material being considered.

They also had concerns about the Tribunal's ability to assess the information.

In particular a number of families had serious concerns about the Tribunal's

understanding of the concept of persecution and its ability to relate

specific abuses to a climate of impunity that may exist in an asylum seeker's

country of origin.

Impunity

The Special Rapporteur

on Extrajudicial, Summary or Arbitrary Executions has stated that States

have an obligation to conduct exhaustive and impartial investigations

into allegations of human rights violations, to identify and bring to

justice the perpetrators, to grant adequate compensation to the victims

or their families and to take effective measures to avoid the recurrence

of such violations. [11]

The Special Rapporteur

further noted that in most of the countries where violations of human

rights were committed and particularly those of the right to life, authorities

have failed in their duty to bring perpetrators to justice, which in some

countries has led to a climate of impunity. [12] The

Special Rapporteur stated that she considers impunity to be the principal

cause of the perpetration and encouragement of human rights violations.[13]

Moreover, the Special Rapporteur emphasised that "the manner in which

a Government reacts to human rights violations committed by its agents,

through action or omission, clearly shows the degree of its willingness

to ensure effective protection of human rights". [14]

The Special Rapporteur

has commented that in most situations, impunity is the result of a weak

and inadequate justice system, which is either reluctant or unable to

investigate and prosecute cases of human rights violations. [15]

She has stated that "while in some countries the judiciary is strongly

influenced by or directly subordinate to the executive authorities, in

others court decisions are flatly overruled or ignored by the law enforcement

authorities or the armed forces". [16] The Special

Rapporteur further mentioned that human rights violations might also go

unpunished because the sex religious belief, ethnicity or sexual orientation

of the victim is used as a justification of the crime. [17]

Moreover the Special Rapporteur noted that in certain cases impunity is

the direct result of laws or other regulations explicitly exempting public

officials or other State agents from accountability or prosecution. [18]

The Special Rapporteur explained "in certain countries the law allows

the heirs of a murder victim to "forgive" the perpetrator, thereby

allowing impunity for the crime. The offender instead pays compensation

to the heirs of the victim. This law that follows the Islamic principles

of qisas and diyat, operates in favour of the more powerful

party, thus allowing perpetration of violations of human rights impunity.

Often the victim's heirs are intimidated into a compromise and to "forgive"

the accused party." [19]

The Special Rapporteur

on Extrajudicial, Summary or Arbitrary Executions observes that "one

of the root causes of the occurrence of serious human rights violations,

including extrajudicial summary or arbitrary executions, is the deeply

entrenched culture of impunity which continues to plague the legal system

in many of the countries struggling with serious human rights problems.

The inability or reluctance on the part of the authorities to bring an

end to impunity for human rights offenders seriously undermines the rule

of law, which is one of the most fundamental principles of a democratic

and functioning society". [20] The Special Rapporteur

went on to say that "a culture of impunity widens a gap between those

close to the power structures and others, who are vulnerable to human

rights abuses". [21] Moreover the Special Rapporteur

states, "human rights protection and respect for the rule of law

are central to lasting peace and stability". [22]

Evidence featured

in Thematic Reports of consistent human right violations occurring in

Iran, Iraq and Afghanistan indicates that impunity for these serious abuses

has become systematic and institutionalized in these countries.

In Iran, impunity

is encouraged by problems related to the functioning of a non-independent

judiciary that is subject to government and religious influence.[23]

The US Department of State has commented that "the Government uses

the judiciary to stifle dissent and obstruct progress on human rights";

and that the court system "serves as the principal vehicle of the

State to restrict freedom and reform in the society".[24]

Impunity in Iran is also the product of laws and systems of justice, which

allow perpetrators of human rights abuses to avoid accountability and

escape prosecution. The UK Home Office has reported that a system of qisas

(retribution) and diyat (religious penalty/ "blood money")

has been institutionalised in the Iranian legal system. [25]

Although retribution in kind and vendetta are allowed under qisas and

forms of compensation paid to victims or their families permitted by diyat,

the Iranian penal code nevertheless recommends forgiveness - as the act

of forgiveness pleases God.[26] Nevertheless as the

Special Rapporteur on Extrajudicial Summary or Arbitrary Execution has

stated, "there should and can be no impunity for serious human rights

abuses, particularly violations of the right to life". [27]

In the case of Iraq,

the Special Rapporteur on Iraq has spoken frequently on the systematic

abuses of power that occurs in this country. [28] The

Special Rapporteur has observed that the security apparatus and members

of the Baath Party have been allocated elevated and protected status essentially

making them immune from prosecution.[29] The Special

Rapporteur has commented that impunity, even for serious assaults and

extrajudicial killings, encourages the abuse of power and ultimately results

in widespread violations of the rights to liberty and to respect for personal

security.[30] The Special Rapporteur has stated "such

serious abuses of power over a period of decades, along with the effective

proscription of dissenting opinion, expression, association or assembly

have acted to render Iraqis essentially compliant. In sum, the essence

of human rights, i.e. respect for the dignity of the individual human

being, has been and continues to be systematically and completely violated

in Iraq". [31]

In regards to Afghanistan,

the Special Rapporteur on Afghanistan has spoken of a "crisis of

impunity" occurring within the country. [32] The

Special Rapporteur has observed that the continued armed conflict "is

marked by a recurrent pattern of massacres which constitute gross human

rights violations and breaches of international humanitarian law, in some

cases amounting to crimes against humanity". [33]

Furthermore the Special Rapporteur has commented that the warring parties

repeatedly committed serious violations of human rights and humanitarian

law, including large-scale killing of civilian, summary executions of

prisoners, aerial bombardment of civilian targets, indiscriminate bombing,

rocket and other artillery attacks on areas populated by civilians, rape

and torture, burning of houses, looting and destruction of sources of

livelihood and property which, in a number of cases, reflect an intention

to impose collective punishment". [34] The Special

Rapporteur acknowledged that "it is now increasingly recognized that

the impunity enjoyed by those who have been responsible for ordering and

carrying out the massacres and summary executions and the absence of accountability

for such gross violations of human rights and grave breaches of humanitarian

law has contributed to the repeated occurrence of such violations".

[35]

If as the Special

Rapporteur on Extrajudicial, Summary or Arbitrary Executions has suggested

and the manner in which a Government reacts to human rights violation

committed by its agents clearly represents the degree of its willingness

to ensure effective protection of human rights; [36]

then the Governments of Iran, Iraq and Afghanistan have clearly shown

a high degree of unwillingness to ensure the protection of human rights.

Religious

Intolerance and Minorities- Iran

What follows is an

overview of the situation in Iran as gleaned from various UN reports over

the past five years. We have highlighted this issue, as a number of those

awaiting status determinations are members of religious minorities. This

information has to be understood in light of the climate of impunity that

exists in Iran. Members of certain religious minorities in Iran are not

protected under Iranian law. Ordinary citizens feel able to attack members

of these groups because they are aware of the reluctance of police and

courts to provide group members with adequate protection.

Religious freedom

is Iran exists only for those following the Shi'ite faith and nominated

Islamic schools. Under the Iranian Constitution recognised religious minorities,

Zoroastrians, Jews and Christians, are able to preform their religious

rites and ceremonies. [37] Both the UN Special Representative

on Iran and the US Department of State have observed that religious and

ethnic minorities face varying degrees of officially sanctioned discrimination,

particularly in the areas of employment, education and housing. At times

the treatment amounts to persecution. [38] They also

suffer discrimination in the legal system. The UN Special Rapporteur on

religious intolerance in 1996 reported "especially at the lower levels

of public courts, minority plaintiffs are usually discriminated against

by judges, who treat them as members of a minority and not as Iranian

citizens, applying their brand of Islam and taking decisions that are

very often in favour of Muslims." [39]

Sabeans (Mandeans

or Christians of Saint John the Baptist) are a small religious minority

in Iran. In 1995, C. Chaqueri of Encyclopaedia Iranica indicated that

Sabeans are 'ill-treated and discriminated against by the Iranian authorities,

given that they fall into the category of undesirables." [40]

The Special Rapporteur

of the Commission on Human Rights on the freedom of religion or belief

was established in 1986. [41] The mandate of the Special

Rapporteur is to examine incidents and governmental actions in all parts

of the world inconsistent with the provisions of the Declaration on the

Elimination of All Forms of Intolerance and of Discrimination Based on

Religion or Belief, and to recommend remedial measures.

The Special Rapporteur

in his 1998 [42] and 1999 [43] Reports

- on the implementation of the Declaration, and again in his 1998 interim

report to the General Assembly, [44] noted that communications

received - disclosed that members of the Baha'i community in Iran had

allegedly been the victims of violations: of freedoms of thought, conscience

and religion/belief religion; of freedoms to manifest one's religion or

belief; and of physical integrity and health of person (religious figures

and the faithful). [45] The Special Rapporteur drew

attention to the risk that certain members of the Baha'i faced in being

arrested, detained and executed because of their religious belief. [46]

Moreover it was reported that actual incidents occurred where Baha'i were

hanged for converting Muslims. [47] The Special Rapporteur

also spoke of the alleged policy of intolerance and discrimination against

the Sunni community involving: obstacles to the construction of mosques

and schools; the closing of mosques and the execution/murder of Sunni

religious officials and intellectuals. [48]

In the 1999 interim

report [49], the Special Rapporteur spoke of an urgent

appeal concerning 13 members of the Jewish community including rabbis

and religious teachers in the cities of Shiraz and Ispahan. Reportedly

accused of spying, it was suggested that the real reason they were arrested

was the fact they were Jewish. [50]

In the 2000 interim

report, [51] again the Special Rapporteur referred to

further information on the arrest, detention and sentencing to death of

certain Baha'i members for taking part in Baha'i activities. Moreover

in the 2001 interim report, [52] the Special Rapporteur

noted claims that properties belonging to Baha'is in Tehran, Istahan and

Shiraz had been confiscated; and that shops in Tehran belonging to Baha'is

had been allegedly shut down by force and the issuance of trading licenses

for Baha'is were being delayed.

General Human

Rights Assessment - Iraq

We have included

this information to assist HREOC to understand the nature of the society

that produces many of our asylum seekers. Service provision for this group

will not be effective unless providers are aware of the general climate

of fear and intimidation.

The Human Rights

Committee established by the 1966 United Nations International Covenant

on Civil and Political Rights (ICCPR) is a monitoring body comprised of

18 experts. The general comments of the Committee provide authoritative

guidance on interpretation of the ICCPR; and monitor the implementation

of the ICCPR and its two optional protocols. In its 1998 Report to the

General Assembly the Human Rights Committee [53] adopted

inter alia the following observations in regards to the continuing

violations of human rights in Iraq:

  • The Committee

    voiced its deep concern that all government power in Iraq is concentrated

    in the hands of an executive, which is not subject to scrutiny or accountability,

    either politically or otherwise. Furthermore the Committee noted that

    it operates without any safeguards or checks and balances designed to

    ensure the proper protection of human rights and fundamental freedoms

    in accordance with the ICCPR. [54]

  • The Committed

    noted with grave concern reports from many sources concerning the high

    incidence of: summary executions; arbitrary arrest and detention; torture

    and ill-treatment by members of security and military forces; disappearances

    of many named individuals and of thousands of people in northern Iraq

    and in the southern marshes; and forced relocations. In this respect

    the Committee expressed its regret at the lack of transparency on the

    part of the Iraqi Government in responding to these concerns. [55]

  • The Committed

    also observed that a number of temporary decrees enacted by the Iraqi

    Revolutionary Command Council have adversely affected the implementation

    of certain non-derogable Covenant rights namely - the right to life,

    the prohibition of torture and the principle of non-retroactivity of

    criminal laws. [56]

  • The Committee

    expressed its concern that Iraq has resorted to the imposition of cruel,

    inhuman and degrading punishments, such as amputation and branding.[57]

    Furthermore the Committee noted that procedural guarantees are not provided

    for in criminal court proceedings. [58]

  • The Committee

    also reported on the arbitrary restrictions imposed by the authorities

    on the right to freedom of movement within Iraq and freedom to leave

    the territory.[59] Similarly the Committee voiced

    its concern about the severe restrictions on the right to express opposition

    to or criticism of the Government or its policies; [60]

    and on the restrictions, prohibitions and censorship imposed on the

    creation and functioning of independent broadcasting media. [61]

  • The Committee

    also voiced its particular concern on the imposition of oppressive measures

    directed against members of religious and ethnic minorities - in particular

    the Shi'ite people in the southern marshes and the Kurds. [62]

Human rights in

Afghanistan

Despite the overthrow

of the Taliban in most parts of Afghanistan there continue to be widespread

and systematic violations of human rights. It is important that the Australian

community understand the true dimensions of the problems faced by asylum

seekers from this region. It is also imperative that asylum seekers believe

that decisions affecting their lives will be made on the basis of accurate

information and not on assumptions based primarily on government press

releases and media supplied information. The government has suggested

that representatives of the asylum seeker community may be allowed to

accompany them to Afghanistan in order to assess the situation. If this

occurs it is vital that women be included in any such delegation in accordance

with the Guidelines on the Protection of Refugee Women.

Given the widespread

nature of the abuses occurring prior to the overthrow of the Taliban it

is impossible to believe that life has returned to normal. In late September

2001 the High Commissioner for Human Rights referred to a humanitarian

crisis of 'stunning proportions' occurring in Afghanistan. [63]

Many areas of the country were subjected to the indiscriminate use of

landmines and bombing. Families were decimated by the forcible taking

of children and able-bodied males by the Taliban.

It is unconscionable

that people who have been subjected to such horrors should be left in

asylum detention for an indefinite period of time while the world waits

to see if their country can return to some semblance of normalcy. The

UNCHR has stated that the overriding purpose of refugee policy should

be the treatment of refugees with dignity and respect. Australia's policies

do not further the human dignity of asylum seekers. Our reputation as

a humane and just society is being tested. It is vital that we find a

more durable and just solution to the plight of asylum seekers.

Observations

and Recommendations of Action for Children

The information set

out above is a small fraction of that available through he UN system for

the protection of human rights. We are aware that the Tribunal sometimes

refers to information collected by the US State Department as well as

the UK Foreign Office. We believe a more effective procedure for the

collection of information must be put in place so that asylum seekers

and the general public can be certain that the decision-making process

is transparent and is based on a reasonable understanding of the human

rights situation in a particular country.

Further DIMIA

should ensure that ACM management receives appropriate background information

about the human rights situation in asylum seekers' countries of origin.

This will assist in the proper training of guards and other personnel.

All service providers, particularly counsellors, educators and health

professionals should receive suitable information about asylum seekers'

countries of origin so that they can better understand the backgrounds

and needs of their clients.

Submitted by Tina Dolgopol, on behalf of Action for Children, SA

Address for Correspondence: PO Box 114, Unley SA 5061

Telephone: (08) 8201 3880

Acknowledgements:

The information contained in Part I of this submission would not have

been available without the cooperation of the Woomera Legal Outpost. The

views expressed are solely those of Action for Children and should not

be attributed to the Outpost or any of its members.

Part IV of the

Submission is based on the research and writings of Tania Steinmuller

an SJD student at the Australian National University and Michael Paes

a law student at The Flinders University of South Australia.


1. Executive

Committee of the High Commissioner 's Programme, Note on International

Protection, A/AC.96/951, 13 September 2001 at para 54.

2. Id. at para. 53.

3. Id.

4. Global Consultations on International Protection, Reception

of Asylum-Seekers, including standards of Treatment, in the Context of

Individual Asylum Systems, AC/GC/01/17 (4 September 2001)

5. Executive Committee, above n 1 at para. 42.

6. If a Minister of the Crown had undertaken these acts

in his/her private capacity as guardian or parent of a child State child

protection laws would apply.

7. Guideline 6: Detention of Persons under the Age of

18 Years. The accompanying note makes this the general rule although recognising

that detention may occur for a brief period at airports or others places

of disembarkation. If detention does take place it is to be "a measure

of last resort and for the shortest period of time."

8. Executive Committee, above n 1 at paras. 68-73 and

Guidelines on the Protection of Refugee Women, EC/SCP/67, July 1991.

9. Executive Committee, above n 1 at paras. 68-73.

10. Guidelines on the Protection of Refugee Women, EC/SCP/67,

July 1991at paras 11-14.

11.

Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary

Executions, E/CN.4/1998/68, 23 Dec 1997 at section J, para 1.

12. Ibid.

13. Ibid.

14. Ibid, at section B, para 2.

15. Report of the Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions, E/CN.4/2000/3, 25 Jan 2000, para 89.

16. Ibid.

17. Ibid.

18. Ibid. The Special Rapporteur commented, "Such

regulations are often resorted to in countries facing internal unrest,

and where the security forces are given wide-ranging powers to counter

a real or perceived threat to national security".

19. Ibid.

20. Report of the Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions, E/CN.4/2000/3, 25 Jan 2000, para 87.

21. Ibid.

22. Interim Report of the Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions, A/55/288, 11 August 2000 at para 50.

23. USDOS, 2000 Country Reports on Human Rights Practices

- Iran, Feb 2001 at pages 3, 13 and 14.

24. Ibid.

25. United Kingdom, Immigration and Nationality Directorate,

Country Assessment - Iran, 1 Oct 2000 para 4.14. Furthermore they highlighted

that "blood money" is only awarded if the aggrieved party is

a man; and that families of female victims of violent crimes are reported

to have to pay for an assailant's court costs: para 6.7.

26. Nader Entessar Ph.D, "Limits of Change: Legal

Constraints to Political Reform in Iran" <http://www.mevic.org/papers/limits-of-change.html&gt;.

27. Interim Report of the Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions, A/55/288, 11 August 2000 at para 48.

28. Reports of the Special Rapporteur on Iraq: E/CN.4/1994/58;

E/CN.4/1995/56; E/CN.4/1996/12; E/CN.4/1997/57; 1999 Interim Report -

A/54/466.

29. Report of the Special Rapporteur on Iraq, E/CN.4/1997/57

21 Feb 1997 at para 8. The Special Rapporteur in the 1995 Report (E/CN.4/1995/56,

15 Feb 1995 at para 42) reported that "provisions of a Revolution

Command Council Decree of 21 December 1992 which guarantee impunity for

members of the Baath Party in their efforts to combat enemies of the regime

in the course of which they may damage property, cause bodily injury and

even death. Given the prevailing economic circumstances in Iraq, conferring

such enormous powers on so many clearly encourages arbitrary punishments,

confiscations and other acts for personal gain. In sum, such decrees underline

the absence of the rule of law in Iraq".

30. Report of the Special Rapporteur on Iraq, E/CN.4/1997/57

21 Feb 1997 at para 8.

31. Ibid.

32. Interim Report of the Special Rapporteur on Afghanistan:

A/56/409, 26 Sept 2001 page 11.

33. Ibid, para 57.

34. Ibid.

35. Report of the Special Rapporteur on Afghanistan:

E/CN.4/2000/43/Add.1 27 March 2001 at para 10. The Special Rapporteur

went on to say that "there is thus a growing opinion that in order

to deter and prevent the occurrence of such atrocities, an effective international

initiative is called for not only to document, denounce and then cut the

sinews of war (arms supplies, external financial support, linkages with

drug warlord) but also to expose and hold to account those responsible

for war crimes, breaches of international humanitarian law and gross violations

of human rights. International cooperation would be needed to deny impunity

and enforce accountability by developing mechanisms to undertake full

investigation to gather evidence and to identify those responsible in

order that they may be brought to justice".

36. Ibid, at section B, para 2.

37. UNHCR 1998 and 2001 Background Papers and United

States Department of State Country Report on Iran.

38. Report of the Special Representative, 1999 Interim

Report on the Violation of Human Rights and Fundamental Freedoms, A/54/365

and US Department of State above n 37.

39. Special Rapporteur on Religious Intolerance in Iran,

E/CN.4/1996/95/Add.2, 9/2/96.

40. UNHCR 1998 Background Paper.

41. Pursuant to the Commission on Human Rights resolution

1986/20 of 10 March 1986. Mr. Abdelfattah Amor from Tunisia has been the

Special Rapporteur since 1993.

42. Report of the Special Rapporteur on the Implementation

of the Declaration on the Elimination of All Forms of Intolerance and

of Discrimination Based on Religion or Belief, E/CN.4/1998/6, 22 Jan 1998.

43. Report of the Special Rapporteur on the Implementation

of the Declaration on the Elimination of All Forms of Intolerance and

of Discrimination Based on Religion or Belief, E/CN.4/1999/58 para 66.

44. Interim Report on the elimination of all forms of

intolerance and of discrimination based on religion or belief: A/53/279,

24 Aug 1998.

45. See the Report of the Secretary-General on the elimination

of all forms of intolerance and of discrimination based on religion or

belief: A/54/303, para 18 - providing a summary of the 1999 communications

received by the Special Rapporteur on religious intolerance.

46. Ibid. See also note 14.

47. Ibid.

48. Ibid.

49. Interim Report on the elimination of all forms of

intolerance and of discrimination based on religion or belief: A/54/386,

23 Sept 1999 para 63.

50. In this incident the Special Rapporteur recorded

that the Government of Iran replied that "the suspects arrested for

spying included both Christian and Muslim, that the investigation and

the arrest had taken place without regard for their religious beliefs

and were instead a matter of safeguarding national security" (para

64).

51. Interim Report on the elimination of all forms of

intolerance and of discrimination based on religion or belief: A/55/280,

8 Sept 2000 para 34.

52. Interim Report on the elimination of all forms of

intolerance and of discrimination based on religion or belief: A/56/253,

31 July 2001.

53. 1998 Report of the Human Rights Committee to the

General Assembly: A/53/40.

54. Ibid, para 96.

55. Ibid, para 97.

56. Ibid. paras 98 -100.

57. Ibid., para 101.

58. Ibid, para 104.

59. Ibid, para 103.

60. Ibid, para 105. Specifically the Committee noted

its concern that the law imposes life imprisonment for insulting the President

of the Republic, and in certain cases death. It also imposes severe punishments

for vaguely defined crimes, which are open to wide interpretation by the

authorities, such as writings detrimental to the president.

61. Ibid, para 106.

62. Ibid, para 108.

63. Report of the UN High Commissioner for Human Rights,

28 September 2001. A/56/36.

Last

Updated 10 October 2002.