The world risks a return to the dark days of pre-World War II when Jews fleeing persecution in Germany were refused asylum and consequently died in Nazi death camps, a Macquarie University academic argues in a new book.
Refuge Lost: Asylum Law in an Interdependent World is a “bleak warning” from senior law lecturer Dr Daniel Ghezelbash about the state of the international refugee-protection regime as nations – Australia chief among them - do everything in their power to prevent asylum-seekers from arriving on their shores. It urges Europe, beset by a refugee crisis, to resist the pressure to follow Australia’s lead – although Ghezelbash fears it may be too late.
HARD LINE: Daniel Ghezlebash's book, Refuge Lost: Asylum Law in an Interdependent World, aims to draw attention to Australia's refugee policies.
Former High Court judge Justice Michael Kirby, who launched the book, describes it as a powerful expose of how and why governments are adopting restrictive policies and their devastating impact on vulnerable people.
“Hopefully, it will contribute to a timely turnaround from the current dark chapter in local and international refugee law and policy.” Kirby says.
USA the source of Australia's hard-line policy
Ghezelbash also reveals that while Australia’s harsh asylum-seeker policies are held up in Europe as a model, they in fact came direct from the United States and its practice of detaining, at the notorious Guantanamo Bay, refugees from Cuba and Haiti attempting to reach the US by boat.
“Not many people know that Guantanamo Bay has been used as a migrant holding centre since the early 1990s and boats are still intercepted by the US coast guard and people are still sent to Guantanamo for the same purpose we use Nauru and Manus islands – as a place to hold people where the regular legal protections that apply on the mainland don’t apply,” Ghezelbash explains.
“It’s the same principle that in the way you never end up in Australia from Nauru or Manus, you generally never end up in the US from Guantanamo Bay. They hold you there until they can find another country to take you.”
Ghezelbash’s research led him to one of the architects of the Guantanamo policy, who revealed that, during the Tampa crisis of 2001, he sat in a room in Geneva for two days giving policy advice to Australian government officials about the US experience, and how it could be adapted for Australia.
“They seem to have followed that advice to the tee, so it was a very direct copy of US policy,” says Ghezelbash, who is also the director of the law school’s Social Justice Clinic.
The Tampa crisis involved a Norwegian freighter, MV Tampa, which rescued 433 asylum seekers from a stricken fishing boat and was refused entry by the Howard government into Australian waters.
Nations flout spirit of UN refugee convention
The policy of off-shore detention and processing that came out of Tampa is typical of the hard-line policies “spreading like wildfire” around the world that stick to the letter but flout the spirit of the 1951 UN Refugee Convention, Ghezelbash says.
Governments, he says, are competing with each other to match or outdo policies out of fear they will otherwise attract asylum seekers who see them as a soft touch.
“The idea behind the UN convention was to create obligations to stop what happened to the people fleeing Nazi Germany from happening again,” he says. “Some states are claiming that those obligations don’t kick in until people reach your country, and so if you build up extra-territorial control systems that stop refugees from doing that, technically you may not be in breach of your international obligations.
“There’s a race to the bottom going on, and the end point of that is Australia, which has basically blocked its borders to asylum seekers completely, and that model is being held up, particularly in Europe.
“The book is a warning to Europe to not follow our path. To preserve the international regime you need leadership from liberal Western democracies and Europe is our last hope as a group of countries that can take that lead, but sadly, as every day passes they edge closer and closer towards the Australian model.”
Ghezelbash is himself from an Iranian refugee family – his Jewish mother and Muslim father arrived in Australia by plane on a tourist visa in 1981, shortly after Iran’s Islamic revolution.
While his family’s experience inspired his choice of a legal career, another conclusion he reaches in the book is that court challenges won’t succeed in changing the policies that force boat turnarounds and subject asylum-seekers to the nightmare of off-shore detention. Without a bill of rights, he explains, the Federal Government can – and does - quickly write legislation to override any court ruling in favour of refugees.
“Bringing legal challenges against these harsh policies hasn’t worked and will not work, and by and large, even with our victories in the courts, has resulted in more punitive policies being introduced,” Ghezelbash says.
“As long as political leaders think that the public wants them to stop people reaching their state to claim asylum then they’re going to pursue these policies; our only hope is to try and change the hearts and minds of the public.”