The Ocean Lady: Rethinking “Illegal” Migration in Canada

By: Fathima Cader · November 3, 2009 · Filed Under Immigration Law · Add Comment

The recent arrival by boat in Vancouver of 76 Sri Lankan Tamil men has triggered heated debate about Canada’s refugee system. On October 28, the Liu Institute for Global Issues at the University of British Columbia held a forum on the topic, entitled “The “Ocean Lady”: A New Challenge of Illegal Migration on Canada’s West Coast?” One of the panellists, Daniel McLeod, who is duty counsel for the migrants, called these men “classic refugees,” because of the persecution they face in Sri Lanka. “It’s young Tamil men in Sri Lanka who are most at risk,” he said. He also observed that though “the Liberation Tigers of Tamil Eelam at their peak had probably 1500 to 2500 soldiers,” there are currently a quarter of a million Tamils awaiting security clearance by the Sri Lankan government in internment camps in the northern parts of the island.

McLeod, who is also an instructor in Refugee Law at UBC, noted that Canada is a signatory to the 1951 UN Convention on Refugees, which states that refugees cannot be penalised for entering the country through illegal means. Canada’s acceptance of the Convention was triggered by its refusal in 1939 to admit the St Louis, a boat containing 907 Jewish refugees, who were forced to return to Germany, where a third of them were killed in concentration camps. However, host and fellow-panellist, Benjamin Perrin, Assistant Professor at UBC Law and Faculty Associate at the Liu Institute, said that because the 1951 Convention only addresses the criminalisation of the entry, “it does not preclude countries from exercising detention where the identities of the individuals are uncertain or there are undetermined security risks.”

McLeod cautioned against assuming the men were Tamil Tigers. “It is common for people who have been forced to work as labourers for the Tigers, to be rounded up, arrested by the army, police, or the special task force – which is a police commando force – and simply disappear,” he said. When describing the men, nearly all of whom are currently confined in a Lower Mainland jail, McLeod said, “Some of them are students, some are farmers, some of them are clerks, office workers. They are all very scared.”

In Canada the acceptance rate for refugees is approximately 47%. In comparison, according to Andreas Schloenhardt, Associate Professor from University of Queensland, in Australia, that number is 80%. (However, Australia has a very different immigration system, which involves using whole islands far from the mainland as detention centres, so these numbers may not be analogous.) Yet the 2007 acceptance rate specifically for Sri Lankans in Canada was 97%.

In 1986, local fishermen came to the rescue of 154 Sri Lankans found floating off in lifeboats off the coast of Newfoundland. Those people were not subjected to what McLeod called “the political frenzy that’s occurring today,” suggesting that in the intervening two decades Canada’s policing of its borders has become progressively more exclusionary and reactionary. This fear was solidified on November 2, when Immigration Minister Jason Kenney, after accepting the fewest refugees in 10 years, dramatically cut the 2010 target number of refugees to be accepted by more than half. Opposition MPs assert that “by steeply dropping the targets, refusing to appoint Refugee Board members for 2 years, cutting $4 million in the department and allowing for board appointments not based on merit, Harper’s Conservative government is deliberately creating a crisis in the refugee system. The crisis is then used as an excuse to bring in draconian measures to close the door to the most needy and vulnerable.”

At the lecture, Perrin claimed that the focus on the “human interest story” of the 76 men, while legitimate, shifts attention away from an analysis of the means by which refugees move illegally between countries. He argued that “Canada must take action to discourage illegal migration and disrupt migrant smuggling operations where they do exist.” Further, Canada is a party to the 2004 UN Protocol against the Smuggling of Migrants by Land, Sea and Air, which, he said, “calls for [migrants] not to be criminalised, but to be treated humanely. But at the same time, it does not give them the right to temporary or permanent residence in Canada simply because they are smuggled.”

When one student then questioned him about the language used to describe the men, specifically the term “illegal migrant” (which was featured in the panel title), because of the way it implicitly criminalises the men, Perrin responded that “the title of the presentation has a question mark at the end of it, which was very deliberate.” Another audience member had a query about how that kind of vocabulary negatively affects media coverage. Perrin responded, “I think it’s important that before there’s been an impartial determination of the legal status of these individuals, that our language reflect that. So I’m not calling them refugees right now because I don’t know if they are.”

Perrin maintained that “there are advantages to cooperating with other countries, not just the source countries, but also other countries along the migrant smuggling chain,” because this would assist Canada in “creating proactive responses to protracted refugee situations.” One reporter asked, “How are we to trust the Sri Lankan government if they say these people are members of a terrorist organisation? [...] How do you trust a government which is treating a minority as harshly as them?” McLeod answered, “I hope we’re not going to trust the Si Lankan government to make that determination for us. There are a number of ways that Canada Border Services Agency can obtain information in normal ways.” These include taking fingerprints to run through international police records and analysing accents to determine where in Sri Lanka the men are from. However, the RCMP has already begun collaborating with the Sri Lankan government to identify the men.

“There are 16 million refugees worldwide as of June 2009. There’s another 26 million internally displaced persons, who don’t count as refugees,” said McLeod. “Hundreds, if not thousands, of irregular migrants are reported dead or missing every year,” said Perrin.

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A previous version of this article first appeared in Canadian Lawyer. This article was last modified on Nov 5.

Post tags: Benjamin Perrin, canada, Daniel McLeod, Immigration, Jason Kenney, ocean lady, refugees, Sri Lanka, St Louis, Tamil, UBC, UN Convention on Refugees, vancouver

Criminalising Refugees

By: Fathima Cader · October 29, 2009 · Filed Under Immigration Law, International Law · 2 Comments

The arrival in Vancouver by boat two weeks ago of 76 refugees from Sri Lanka has triggered a predictable wave of paranoia and xenophobia, not the least of which has come from our own Ministry of Immigration. Alykhan Velshi, director of communications and parliamentary affairs, felt compelled to reassure the public that:

We won’t allow Canada to become a place of refuge for terrorists, thugs, snakeheads and other violent foreign criminals. Nor will we support those who want to create a two-tier immigration system: one tier for law-abiding immigrants who wait patiently in the queue, and a second, for-profit tier for criminals and terrorists who pay human smugglers to help them jump the queue.

Minister Jason Kenney, somewhat less flamboyantly, has said, “We don’t want to develop a reputation of having a two-tier immigration system – one tier for legal, law-abiding immigrants who patiently wait to come to the country, and a second tier who seek to come through the back door, typically through the asylum system.”

On the face of it, the preemptive criminalisation of the 76 men as terrorists and snakeheads aside, it seems like a fair thing to ask: that whatever system Canada have in place for immigration be respected.

The fact is, however, that Kenney is being willfully misleading. As Shauna Lubman, of UBC Law, notes:

[Kenney’s] statement belies the fact that Canada has a two-pronged system already – the Immigration and Refugee Protection Act (IRPA) that legislates the entrance of both immigrants and refugees. There is no “back door.” There is an immigration door and an asylum door. While there is a clear legal process for entering Canada as an immigrant, it is specifically acknowledged in the 1951 Refugee Convention, whose signatories include Canada, that asylum seekers cannot be penalized for illegal entry. [emphasis mine]

Moreover, she continues,

Minister Kenney’s two-tier concern is misleading and completely misses the point that the Sri Lankan men might be genuine refugees. There are legitimate concerns with the arrival of migrants by boat, be they false or genuine refugee claimants. Human smuggling is a corrupt and exploitative criminal enterprise that should not only be discouraged but prosecuted. However, it is the smugglers who are the criminals, not the vulnerable migrants who in desperation pay their way into the smugglers’ hands.

Post tags: Immigration and Refugee Protection Act, Kenney, Ministry of Immigration, racism, Shauna Lubman, Sri Lanka, vancouver

Government promises tougher refugee legislation

By: Law is Cool · October 22, 2009 · Filed Under Immigration Law · Add Comment

Canada to take hard line with would-be migrants

Jane Armstrong and John Ibbitson write for the Globe:

Canada’s Immigration Minister has signalled that he intends to play hardball with 76 men believed to be from Sri Lanka who arrived on a rusty boat off Canada’s West Coast, as the government battles the perception of Canada as a soft touch for asylum seekers.

Isn’t it too early to presume these people to be bogus, if they supposedly crossed an ocean to come from a recent war zone?

Post tags: Gary Anandasangaree, human smuggling, Jason Kenney, refugee, Sri Lanka, Tamil, vancouver

A Tale of Two War Criminals: Bush and Clinton do Toronto

By: Law is Cool · June 3, 2009 · Filed Under Immigration Law, International Law · Add Comment

Reproduced with permission of the author.

By Krystalline Kraus

[1]

When you accuse anyone of war crimes, you’d better be sure you have the evidence to back it up; such an accusation is the equivalent of yelling “fire” in a crowded shopping mall.

It’s a serious charge, something that sits heavily on our psyche as fragile human beings who generally tend to disbelieve that any one could be capable of committing crimes against humanity, especially if they have elected him president.

Perhaps that’s why such a presidential event as a “conversation” between George W. Bush and Bill Clinton happened in Toronto, Canada on May 29, 2009 — the event was billed as a “conversation,” [2] maybe because the terms “meeting of the minds” or “great intellectual debate” would embarrass one of the two parties involved?).

The two men got a standing ovation from a packed audience that paid from $200 to over $2,000 a ticket at the Metro Toronto Convention Centre.

Yes, that’s right, a standing ovation from the crowd inside the Convention Centre. And both Presidents got paid for their time. While no one is telling how much each ex-President made off the 90 minute conversation, Bush reportedly received (US) $160,000 for his last appearance in Canada, in Calgary Alberta in March 2009. Clinton can charge up to (US) $350,000 per speaking engagement. Good work if you can get it.

But ask the 500 or so protesters across the street from the Convention Centre, organized by the Toronto Coalition to Stop the War [3], and the only standing up the presidents got were erect middle fingers. It was this side third and uninvited side of the conversation that chanted slogans such as “Bush and Clinton, war criminals: shame on you!”

Here are a few of the numerous examples of war crimes committed by each of the two men.

Bush as a war criminal

Bush is accused of numerous war crimes, resulting from him ignoring his own constitution’s “supremacy clause,” Article II, section 4, and the War Crimes Act of 1996 (18USC §2441).

Regarding the United States’ War Crimes Acts, author Mike Ferner from Veterans for Peace [4], writes:

“To give just a snapshot of how serious these laws are, consider this portion of 18 USC 2441 which defines a war crime as ‘… a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party …’ The guilty can be ‘… fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.’”

Not to mention important international treaties and conventions such as the Geneva Conventions, the Nuremberg rulings, the Laws and Customs of War on Land and UN General Assembly Resolution 3314. Breaches of these international treaties and conventions amounting to war crimes are too numerous to mention here (though they are listed at the website War Criminals Out [5], which has lists of charges and broken resolutions.)

The invasion of Iraq is cited as a prime example of Bush’s war crimes, where activists insist Bush should be charged under the UN Resolution 3314, Article 5 (codified from the principles of Nuremberg concerning “Wars of Aggression,” [6] which cites as an historical example Hitler’s invasion of Poland) for committing a “crime against peace.” The invasion of Iraq is thus considered a war crime and a crime against humanity, which is spelled out in detail in the Geneva Conventions [7].

In Iraq alone, Ferner points out that Bush is responsible for, among other things, “illegally invading a sovereign state, using banned weapons such as white phosphorous and napalm, bombing hospitals and civilian infrastructure, withholding aid and medical supplies, terrorizing and knowingly killing civilians, torturing prisoners, killing a million people and displacing 4 million more in Iraq alone.”

Now, we’re talking big crimes here, a big fire someone should point out to the general public.

Clinton as a war criminal

While Clinton’s presidency might enjoy a different reputation (think blue dress), there’s a case to be made regarding his culpability in committing war crimes. He was not the focus of the demo, but I don’t think he should get a free pass. Again, using the same international conventions and treaties listed above, there’s a list of actions to consider in regards to charging him with war crimes and crimes against humanity.

Clinton imposed, through the UN Security Council, sanctions on Iraq between 1990 and 2003, which had a devastating effect on the Iraqi population. The UN, in 1999, reported [8] more that hundreds of thousands of Iraqis died as a result of the sanctions, disproportionately among children.

On June 26, 1993, the Clinton administration bombed Baghdad [9] in retaliation for an alleged but unproven Iraq plot to assassinate former President George Bush, Sr.

Clinton’s administration and NATO conducted the bombing campaign of Bosnia from March 22 to June 11, 1999 without UN Security Council approval, against the rules of the Geneva Conventions [10].

Again, big fire here! Not only should Bush and Clinton’s actions translate into war crimes charges, but their disregard for not only American law but also international treaties and conventions undermines the rule of international law and undermines the consensus of the international community.

And we’re not even talking torture charges against Bush regarding his country’s treatment of foreign nationals at military and CIA run prisons, military or rendition sites around the world, an obvious breach [11] of the Geneva Conventions. Reports from Abu Ghraib and Guantanamo Bay alone might be enough to prosecute Bush and win convictions.

These reasons alone were enough to compel the group Lawyers Against The War [12] to issue this statement [13] to the RCMP on March 12, 2009, asking that Bush be denied entry into Canada under Canada’s Immigration and Refugee Protection Act (section 35(1)(a)), because Bush is a war criminal (Crimes against Humanity and War Crimes Act (CAHWC)).

War crimes in World Court

The latest rumour regarding actually holding Bush and his administration accountable for war crimes comes from Spain, where Harper’s reports [14] that the Spanish press El País and Público state,

“the Spanish national security court has opened a criminal probe focusing on Bush Administration lawyers who pioneered the descent into torture at the prison in Guantánamo.”

This could be the first step of bringing the Commander and Chief himself before an international court if the lawyers claim they were just following orders.

Is prosecuting the leaders enough?

While I am certainly not against using international criminal courts to prosecute political leaders with war crimes, I believe their function and scope to be too limiting to bring about real justice to victims of crimes against humanity. The problem with any war crimes court stems from the fact that, as prosecution goes, the international community at best gets to nail one of two ringleaders with convictions but leaves the functioning war machine or war bureaucracy untouched, the unknown number of faceless bureaucrats and military personnel untouched.

While we get a vicarious sense of justice because we got the top brass, those big arrests give the media permission to declare justice complete and us permission to move on to the next conflict of the day. And by “us,” I mostly mean the Western world, as if prosecuting international, political criminals has become a judicial white man’s burden.

This assumed distance can also amount to a coolly calculated mood of international NIMBY and moral superiority, where one nation can quickly vilify another by pointing out the atrocities committed in that country while claiming such crimes could never occur in their own.

It also assumes a stance of culpability after the fact. Regarding Iraq, the American public needs to look inwards to whether domestically they did enough to prevent the events of Iraq from occurring in the first place.

But can we as Canadians sit so smugly with the notion that we did not invade Iraq, or that it was the progressive Left that kept Canada out of Iraq and therefore we have clean hands and the permission to look the other way. Can we point to Bush and Clinton, two American presidents, and declare their country the new international fixture of Evil while in contrast considering ourselves the good guys?

Instead of sitting on our presumed laurels and pointing to our deified notion of peacekeeping, perhaps we should be more aware of our own actions, non-actions and culpability in global and domestic affairs. Everything from Rwanda, Darfur, Sri Lanka to the treatment of our aboriginal citizens.

If Americans need to look inward to understand their own heart of darkness, then we must demand that we as Canadians do the same.