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Autumn 2018
Edition 03
paradigm_shift
people movement
A publication produced by
ANU College of Asia & the Pacific
paradigm_shift
people movement
ANU College of Asia & the Pacific
A publication produced by
Autumn 2018
Edition 03
ANU College of Asia & the Pacific
HC Coombs Building #9
The Australian National University
Canberra ACT 2601 Australia
T 1800 620 032
E asiapacific@anu.edu.au
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ANUasiapacific
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ANU College of Asia & the Pacific
CRICOS Provider #00120C
Introduction Regional snapshots
01 Dr Nicholas Farrelly 07 Professor Helen James
Worlds in motion Urbanisation and rural development:
interrogating changing socio-economic
realities in contemporary Myanmar
Politics, opportunity, trauma and regulation
08 Dr John Funston
02 Professor William Maley
Malaysia and the Rohingya –
Refugees, security and populism humanitarianism and domestic
imperatives
03 Dr Ceclia Jacob
09 Dr Rizwana Shamshad
Forced migration, early warning and the
prevention of mass atrocities From persecution to safe haven?
Rohingya asylum seekers in Melbourne
04 Dr Cynthia Banham
10 Assistant Professor Yasuko Hassall Kobayashi
Apathy, the mistreatment of
non‑citizens, and the problem with From non-immigrant country to de facto
public accountability immigrant country: recent shifts in
Japanese immigration policy
05 Susanna Price
11 Associate Professor Katerina Teaiwa
Legislative paradigm shifts for
involuntary people movement: Moving people,
an update moving islands in Oceania
06 Dr Luke Bearup 12 Dr Sverre Molland
Migrating to the blockchain: exploring Beyond anti-trafficking? Rethinking
the implications for the recognition migration management in Asia
of Others
13 Kirsty Anantharajah
The achievements of the
Manus Island resistance
The Australian National University does not take institutional positions on public policy issues; the views represented
here are the authors’ own and do not necessarily reflect the views of the University, its staff, or its trustees.
Autumn 2018
01
Dr Nicholas Farrelly Dr Nicholas Farrelly is the Associate Dean In 2017, the world was faced, yet again, by
at ANU College of Asia and the Pacific, the deeply troubling violence that often
responsible for development and impact precipitates the largescale movement of our
initiatives. In this role, he leads the College’s fellow human beings. In that case, almost
Worlds in motion 700,000 Rohingya, a persecuted Muslim
engagement with a wide range of government,
business and civil society organisations. After minority from western Myanmar, fled their
graduating from ANU in 2003 with First homes seeking sanctuary in Bangladesh.
Class Honours and the University Medal in An enormous humanitarian response swung
Asian Studies, he completed his M.Phil and into action, but most of the damage had
D.Phil at Balliol College, University of been done. Villages burned to the ground,
Oxford, where he was a Rhodes Scholar. families torn apart. There are allegations
Since 2011, he has held a number of key of rapes and murders too numerous to
academic positions in the ANU College of
comprehend. Myanmar government denials
Asia and the Pacific, including as convenor
have done little to convince sceptical
of the Bachelor of Philosophy (Honours)
audiences. Their unwillingness to allow
program. His own academic research focuses
independent investigators to undertake their
on political conflict and social change in
painstaking work in northern Rakhine State
mainland Southeast Asia. He has examined
has made it hard to start accounting for what
these themes across the borderlands where
happened during those turbulent, disastrous
Myanmar rubs against India, Bangladesh and
months. The reputation of Myanmar’s
China. While studying these areas, Nicholas
State Counsellor, Aung San Suu Kyi, has
has continued to research, write and lecture
been shredded by her reticent and uncaring
about Thailand, a country at the heart of
Dr Nicholas Farrelly
response. Myanmar’s security agencies
some of his oldest academic interests.
have big questions to answer, but the
protection offered by Chinese and Russian
diplomatic vetoes imply that growing calls
for serious scrutiny will be elbowed aside.
The Rohingya – vulnerable, impoverished,
unloved – are now huddled together in a
thin strip of land between the Bay of Bengal
and the mountains that cascade down
from the north. As the monsoon rains
and storms turn everything to mud, it
is difficult to imagine a more miserable
situation. On current trends, hundreds
of thousands of these Rohingya will be
stuck in Bangladesh with no apparent
prospects for formal resettlement elsewhere.
Some will take to the sea, hopeful of
finding a better future somewhere else,
Without implying that there is a borderless utopian maybe Malaysia or Indonesia. Others
fix to today’s iniquitous landscape of population will strike out overland, looking for
opportunities in India, or perhaps beyond.
movement, it may be worth us all thinking harder
about what kind of connections we value, and Continues on next page
how we can help to ensure that everyone gets
the sort of movement that they deserve.
Worlds in motion 3
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01
A lucky few might have a chance to fly out of That grim Rohingya predicament should
Dhaka, throwing themselves on the mercy of encourage reflection on the contrasts and
people smugglers and border officials. There contradictions of people movement today. For
are no good options for the displaced Rohingya, billions of others, including me, the 21st century
and even if a program of large-scale and has unleashed untold opportunities for
well‑resourced resettlement to Myanmar is one unprecedented movement and interaction.
day possible, there will always be the lingering At any given moment, there are almost
prospect of further violence and, therefore, 10,000 planes above the earth. Together,
future waves of migration and displacement. moment‑by‑moment, they are carrying well
over one million people. It is a city in the sky.
The darkness of this Rohingya conundrum
That high technology part of this transport
offers lessons about the inadequacy of policy
equation naturally gets lots of attention, but
responses to large-scale people movement.
we should not pretend that it is only in modern
Nobody was able or willing to stop the
conveyances that people are on the move.
persecution of the Rohingya which forced
The boats from South and Southeast Asia
them from their homes. And, once displaced,
that have featured so prominently in the
the Rohingya have found themselves caught
past generation on the Australian political
in grand geo-political and geo-cultural battles
landscape will never go away. And then think
which limit their chance of a positive outcome.
of all the millions of buses, trains, trucks, and
Formal mechanisms – whether grounded in
more. With billions of cars, too. And then all
international law, the practices of the United
the people on bikes, on foot, crawling. The
Nations, or the protocols of the Association
volume of movement, everywhere, almost all
of Southeast Asian Nations – all appear
Dr Nicholas Farrelly
the time, is a spectacular aspect of the human
inadequate. Political activism and advocacy,
societies that we have created together.
while it has come in many pro-Rohingya
flavours, also seems to have failed, at each And the story keeps getting busier. If you
step, to shift the equation to the advantage ever take a long walk through one of Asia’s
of those now displaced from their homes. vast airports, it quickly becomes clear that
A longterm stalemate, with hundreds of our standard geographies – of connections to
thousands of lives in the balance, is probable. obvious places, well-marked in pop culture
In a world on the move, the Rohingya are and scholarly discussion – are only a fraction
stuck: without citizenship, without much of the destinations on offer. Cities that we
money, and without many friends. might consider well off-the-beaten-track now
claim huge airports of their own, with the
resulting flurry of back-and-forth, in-and‑out.
A longterm stalemate, with hundreds of
thousands of lives in the balance, is probable.
In a world on the move, the Rohingya are
stuck: without citizenship, without much
money, and without many friends.
4 ANU College of Asia & the Pacific Worlds in motion 5
paradigm_shift — Edition 03 Autumn 2018
01
For many people, the government has not Inevitably, there are winners and losers.
found the right balance. Some despair And much of what we have tended to
that the longterm off-shore detention of understand of people movement has yet
would-be asylum seekers is a black mark to fully catch up with the infrastructure
against Australia’s record of providing a and technology at our disposal. In an era
new life to those who need one. Others of the blockchain, artificial intelligence,
fear that Australia’s capacity to absorb a and autonomous transportation, what
larger population, particularly when people will the migration story become?
arrive without official endorsement, is Answering this question will require
too big a risk. Racism, particularly when further efforts to research and explore
combined with hesitations about Muslim the deep connections and entanglements
migrants, is a further bleak element of political of a world that continues to shift, often
calculations. On such an emotive issue we dramatically, as its people get on the move.
know that tempers fray easily. Many people
With that in mind, our understanding of
feel that there could be an easy fix, but only
people movement needs to start and end
if the politicians had greater courage.
with the profoundly human dimensions
The Australian situation, of political deadlock of this issue. The dire situation along the
and resignation, helps to explain how such Myanmar-Bangladesh border, one that could
ready resolutions are unlikely, perhaps prove intractable to the fixes proposed by
impossible. The scale of people movement regional and global deal makers, reminds us
Kate Ausburn/Flickr
today means that every aspect of life, in that conditions in Australia’s neighbourhood
Australia and elsewhere, is in flux. Often, there are often unkind to the most vulnerable
Dr Nicholas Farrelly
is no way of ‘fixing’ the situation. Looking populations. Minorities – ethnic, religious,
around the Asia Pacific region, the implications sexual, physical, political and economic –
of such assessments are clear. Millions have carved up into all manner of different cohorts,
struggled across borders in the hope of present targets for stronger groups seeking
future peace and prosperity. Over the past to flex their muscles. It is hardly a recipe
generation, Thailand alone has absorbed more for longterm stability. And where people
Such well-ordered mass transportation, appreciate what people movement means for than two million migrants from Myanmar. In decide that they want to move, the world and
flinging people hither-and-yon, is a revolution their longterm success and future prosperity. mega-hubs like Kuala Lumpur and Singapore, Australia will need effective ways to support
in human affairs. It will take time for all the migrants do all of the jobs now deemed their ambitions, and perhaps to better share
In Australia, migration remains a potent
implications to become clear. Indeed, the public beneath the locals. China’s booming cities, of the opportunities that global transportation
political issue, one on which views have
health monitoring stations established over course, are awash with vast streams of rural to infrastructure can provide. At a time of such
hardened markedly over the past generation.
recent decades at many major airports are urban migrants. Every society has its story of stark disparity, some passports have a much
The deaths, at sea, of asylum seekers, have
just one weak signal of what may be to come. people taking the main chance and hitting the easier time travelling where their bearers
forced recent Australian governments to
road. As information circulates more widely, as need or want to go. Without implying that
Other political and economic stories also implement policies that seek to break the
infrastructure improves, and as the cost of long there is a borderless utopian fix to today’s
need to be told. As the essays in this volume business models of those who promised
distance travel plummets, one obvious outcome iniquitous landscape of population movement,
explain, flashpoints across the Asia-Pacific desperate people a ticket to a better life on
is the unprecedented shifting of human lives. it may be worth us all thinking harder about
region encourage people to get on the move. these shores. Too many drowned at sea.
what kind of connections we value, and how
Some instances are dramatic and violent; Others are now hostage to the principle Making sense of these dynamics will never
we can help to ensure that everyone gets
they make for regular headlines. Others get that to accept resettlement in Australia will be straightforward, but, in this volume, we
the sort of movement that they deserve.
ignored: the product of great social, economic only entice further waves to try their luck have sought to understand and explain the
and technological forces that play out on on the high seas. Australian politicians powerful forces at work. The pushes and pulls
timescales unfit for tight media attention and policymakers have struggled to of the global migration economy are subtle
spans. The intensity, scale and scope of human find adequate mechanisms to allay fear and often well hidden. There is much money
movement this century needs concerted about being ‘swamped’ by unauthorised to be made for those who can manipulate
attention, among scholars and across the policy arrivals while still meeting the country’s conditions in their favour, whether at the
community. All political systems need to international and moral obligations. individual, communal or national level.
6 ANU College of Asia & the Pacific Worlds in motion 7
Autumn 2018
02
Professor William Maley Professor William Maley is based at the In May 1939, a merchant vessel called the
Australian National University’s Asia-Pacific M.S. St Louis embarked from Hamburg
College of Diplomacy, and is author of for Cuba under the command of Captain
What is a Refugee? (Oxford University Press, Gerhard Schröder. On board were
Refugees, security over 900 Jewish refugees, carrying
2016) and Transition in Afghanistan: Hope,
Despair and the Limits of Statebuilding with them memories of the so-called
(Routledge, 2018). Professor Maley is a ‘Reichskristallnacht’, the horrendous Nazi
and populism
Barrister of the High Court of Australia, pogrom of 9 November 1938 that had seen
Vice-President of the Refugee Council of windows of Jewish shops smashed across
Australia, and a member of the Australian Germany by thuggish members of the
Committee of the Council for Security brown-shirted Nazi paramilitary wing, the
Cooperation in the Asia Pacific (CSCAP). He Sturmabteilung. But no one, as it turned
is also a member of the Editorial Board of the
out, was keen to welcome them. Turned
journal Global Responsibility to Protect, and
away from Havana, the St Louis headed for
of the International Advisory Board of the
Miami, but had no more luck. “The German
Liechtenstein Institute on Self-Determination
refugees”, said a US State Department
at Princeton University. In 2002, Professor
official, “must await their turn … before
Maley was appointed a Member of the
they may be admissible to the United States”.
Order of Australia (AM). In 2009, he was
Captain Shröder was forced to return with
elected a Fellow of the Academy of the
his passengers to Europe. Over a quarter
Social Sciences in Australia (FASSA).
of the passengers were subsequently
murdered in the Holocaust. These events
Professor William Maley
were chilling but not especially surprising.
Antisemitism was quite common in the
1930s, and at a July 1938 conference held
in Evian, France, to address the plight of
German Jews, the Australian representative
T.W. White, infamously remarked that
“as we have no real racial problem, we
are not desirous of importing one”.
A sense of guilt about the treatment of
Jewish refugees in the 1930s, and about the
bureaucratic rigidities that left them fatally
exposed, underpinned the wording of the
1951 Convention Relating to the Status of
Refugees, and especially Article 33.1 which
provided that “No Contracting State shall
expel or return (“refouler”) a refugee in
any manner whatsoever to the frontiers
of territories where his life or freedom
would be threatened on account of his
race, religion, nationality, membership of a
particular social group or political opinion”.
Refugee policy is a classic example of a Continues on next page
sphere of international relations profoundly
influenced by domestic considerations.
Refugees, security and populism 9
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02
situation, but organic approaches are much “When I was the rabbi of the Jewish community
Until the First World War, those with the more appropriate when it is necessary to in Berlin under the Hitler regime, I learned
wherewithal to do so could travel the world respond creatively to unexpected challenges. many things. The most important thing that I
As the case of the St Louis showed, the learned … under those tragic circumstances
relatively easily without a passport, since for mechanistic application of rules can have was that bigotry and hatred are not the
disastrous consequences when vulnerable most urgent problem. The most urgent, the
the most part there were no border controls of people face extraordinary dangers. Yet state most disgraceful, the most shameful and
substance to confront. bureaucracies are very often mechanistic in the most tragic problem is silence.”
their orientation, and refugees can be among
One of the key factors contributing to the
the prime victims of such an approach. This is
worldwide enhancing of the powers of
compounded by another problem. Denial – of
border‑control bureaucracies to intercept
the reality of the dangers refugees face, or
and detain ‘illegal immigrants’ has been
of the need to come to their aid – can easily
the growth of a popular sense of insecurity,
Yet, almost two decades into the 21st century, different paths in different parts of the world. become part of the organisational mindset
especially in the face of the threat of terrorism.
the climate for refugees is once again Until the First World War, those with the within a mechanistic organisation. Such toxic
At one level, this is not a rational response,
distinctly unwelcoming. My aim in the wherewithal to do so could travel the world organisational mindsets have the capacity
since the perpetrators of recent terrorist
following paragraphs is to identify some relatively easily without a passport, since for to dominate the moral instincts of those
attacks in Western countries have much more
of the key factors that have contributed to the most part there were no border controls who become cogs within the system; a point
commonly been either homegrown – that is,
this. There are five, in particular, on which of substance to confront. Furthermore, the made in different ways by Hannah Arendt
born and raised in the countries where the
I wish to focus: simplistic ideas about notion that the right to exclude people at in her famous and controversial 1963 book
attacks have occurred – or legally within the
‘sovereignty’; bureaucratic pathologies; the border is an intrinsic and inextricable Eichmann in Jerusalem, and by Guenter Lewy
country, as was the case with every one of
in his meticulous 2017 study Perpetrators:
Professor William Maley
exaggerated security fears; toxic domestic element of sovereignty is at the very least
the 11 September 2001 attackers in the US. Yet,
political considerations; and, related to complicated by the existence of instruments of The World of the Holocaust Killers. This is true
irrational fears can seem terribly real to those
this, a broader drift towards populism in international law such as the 1951 Convention not just of murderous bureaucracies, but
in their grip. In Western countries, the risk of
the affairs of countries that are otherwise Relating to the Status of Refugees under which of punitive and exclusionary ones as well.
a given individual being caught up in an act
well positioned to assist the vulnerable. states have relinquished any absolute right This problem is then greatly compounded
of terrorism is statistically very low, but as
to exclude certain people. In a globalising if a wall of silence is constructed around
The idea of sovereignty has found its way the philosopher Robert E. Goodin has pointed
world, strict claims of sovereign entitlement a problem, either by ensuring that poor
into discussion of refugee issues through out in his book What’s Wrong with Terrorism?,
are increasingly under challenge. This is not treatment of refugees occurs in remote
various channels. A common argument, there is a strong human disposition to have
to deny that some states have been trying places, or by penalising attempts to blow the
much deployed by politicians, is that border greater fear of mass-casualty events (such as
very hard to avoid some of their obligations whistle on what is happening. This point
control is an essential, fundamental dimension terrorist attacks) rather than endemic problems
under international refugee law, with was made forcefully by Rabbi Joachim Prinz
of sovereignty. This claim, however, is suspect that cumulatively claim far more lives (such
Australia a recent and egregious offender; the in a speech to the famous March on
on both historical and conceptual grounds. as traffic accidents); and to fear dramatic and
point is rather that conceptually, the idea of Washington protest in August 1963:
The Peace of Westphalia of 1648, comprising the
sovereignty does not provide a particularly
Treaty of Münster and the Treaty of Osnabrück,
strong justification for such behaviour.
is often depicted as the point of origin of a
European system of sovereign states. Yet it Problems of bureaucracy have also added to
neither used the word sovereignty (which had refugees’ difficulties. In the rich literature
no specific Latin equivalent), nor concerned on organisational theory, there is a useful
itself with border control (as opposed to borders distinction, highlighted by Tom Burns and One of the key factors contributing to the
as devices for delimiting spheres of authority). G.M. Stalker in their 1961 book The Management
Indeed, it reaffirmed the right of emigration
of Innovation, between ‘organic’ and worldwide enhancing of the powers of
‘mechanistic’ forms of organisational behaviour.
(jus emigrandi) contained in the Peace
Organic approaches emphasise cutting
border‑control bureaucracies to intercept and
of Augsburg of 1555. As Charles S. Maier has
shown in his magisterial book Once Within
corners to achieve outcomes; mechanistic detain ‘illegal immigrants’ has been the growth
approaches emphasise rule-following to
Borders: Territories of Power, Wealth, and Belonging
since 1500, border controls emerged through
promote a predictable environment. The latter of a popular sense of insecurity, especially in
has much to offer where one’s main objective
ragged and laborious processes that followed
is the management of a stable and routinised the face of the threat of terrorism.
10 ANU College of Asia & the Pacific Refugees, security and populism 11
paradigm_shift — Edition 03 Autumn 2018
02
rare events (such as shark attacks) rather than what policy settings might best enhance that it added less than one per cent to the of German Chancellor Angela Merkel, such
mundane and more common events (such their prospects for re-election. In 2009, the Coalition’s vote. The problem has rather been courage has recently been in relatively short
as attacks by domestic pets), irrespective opposition Liberal Party of Australia, led that major parties have seen the issue as one supply where refugees’ needs are concerned.
of the objective risks that they may pose. by Malcolm Turnbull, attacked the refugee with the potential to shift swinging voters,
The scale of asylum-seeker movements to
Terrorism has been employed as a political policies of the Rudd government, claiming and this has resulted in an amplification of
Australia can easily be exaggerated. Until
tool for centuries, and there is no reason to that asylum seekers were being lured to rhetoric around the issue that far exceeds the
relatively recently, many more arrived by plane
think that states in the 21st century have any their deaths on leaky boats. Behind the salience it intrinsically enjoys with the bulk
than by boat. Indeed, if every ‘boat person’ who
magic formula for eliminating it. Under such scenes, however, an informant whom the of the public. This problem might fade with
had arrived in Australia from 1976 onwards
circumstances, however, there is a danger that US Embassy described as a ‘key Liberal party the passage of time; but again, it might not.
were to be seated in the Melbourne Cricket
states will try to disguise their weakness by strategist’ stated to the embassy that the
The impact of domestic politics is likely to Ground, more than a quarter of the seats
demonising the unregulated ‘outsider’, and issue was “fantastic” and “the more boats
be most dangerous when populist currents would be vacant. Policymakers throughout the
by seeking to create an illusion of effective that come the better”. This is not, of course,
emerge to challenge centrist parties and Asia Pacific region have become very cynical
control of the public space. One way of doing to say that the issue of refugees and boats
movements. Populism has been defined in about Australia’s claims to be threatened by
so is to assert the centrality of border control is necessarily an enormously salient one
various ways, but there is much value in the refugee movements. The ‘burden’ of refugees
to meaningful counterterrorism policies. with the wider public. The 2013 Australian
analysis offered by Jan-Werner Müller in his in the modern world is carried mainly by poor
election, won by the Liberal-Nationals
Refugee policy is a classic example of a 2016 book What is Populism?, in which he points countries rather than rich countries, and often
coalition, witnessed vociferous promises
sphere of international relations profoundly to three characteristic elements of populism: by countries such as Pakistan, Bangladesh,
by Liberal leader Tony Abbott to ‘stop the
influenced by domestic considerations. Whilst it is critical of elites, it is antipluralist, and it is a Malaysia, and Indonesia that are not parties to
boats’. At the end of the day, however, the
realist theories of international relations often form of identity politics. Expanding on this last the 1951 Refugee Convention. A country such
Australian Election Study conducted by ANU
depict ‘national interests’ as driving forces point, Müller argues that for a “political actor as Australia – girt by sea and thereby insulated
showed that for more than three-quarters of
behind foreign policy, political leaders can or movement to be populist, it must claim that from large refugee movement of the kind that
the electorate, refugees and asylum seekers
Professor William Maley
easily be driven by cruder calculations about a part of the people is the people – and that regularly occur in Africa, and briefly affected
constituted at most a third-order issue, and
only the populist authentically identifies and Europe in 2015 – does not have a large-scale
represents this real or true people”. In extreme problem of unregulated population movements
form this manifests in total dehumanisation, by any reasonable measure. But among some
for example through the Nazis’ description Australians, there is something close to panic
of Jews and various other people as about the idea of freer movements of people. As
Untermenschen (sub-humans) but it can surface long as this remains the case, and party leaders
in less obvious but more insidious forms as and strategists see this panic as something that
well, as in the attempt to paint those seeking can be exploited, Australia will be incapable
asylum as somehow criminal. The inclination of credibly positioning itself as a leader in
to paint refugees as sub-human or criminal international policy discussions on refugees.
is very much on display, not only in countries
from which refugees have recently been fleeing,
such as Myanmar, but in countries to which
refugees have fled, with certain politicians
in Hungary, Poland and the Czech Republic
going to great lengths to denounce, denigrate
and deride refugees from places such as
Syria and Afghanistan. The danger of
populism lies in its ideological character: it
can obtain a tight grip on the minds of at
Paintings/Shutterstock.com
least some of the public, even if to give effect
to a populist agenda might not rationally be
even in their own interest. It can also lock
the domestic politics of states into a nasty
straitjacket. Courageous political leadership
can offer a roadmap away from the abyss
of populism, but with the notable exception
12 ANU College of Asia & the Pacific Refugees, security and populism 13Autumn 2018
Dr Cecilia Jacob Dr Cecilia Jacob is a Fellow at the Department Fleeing persecution and seeking asylum in a
of International Relations at ANU. Her work host country has historically been one of the
focuses on civilian protection, mass atrocity most effective forms of self-protection and
prevention and international human protection survival for populations at threat of violent
Forced migration, early conflict. Today, vulnerable populations face
norms. Cecilia has a geographic focus on
03
armed conflict and political violence in many barriers to fleeing violence due to
South and Southeast Asia and has conducted global pressures to contain large population
warning and the prevention
extensive overseas field research. Her flows within origin countries. However,
books include Child Security in Asia: The large-scale population flows can be a strong
Impact of Armed Conflict in Cambodia and indicator of atrocity crimes within origin
of mass atrocities
Myanmar (Routledge, 2014) and (edited with countries, and more attention needs to be
Alistair D. B. Cook) Civilian Protection in paid to the intricate links between forced
the Twenty‑First Century: Governance and
displacement and atrocity crimes to improve
Responsibility in a Fragmented World (Oxford
prevention and response in instances of
University Press, 2016). Her research has been
widespread and systematic atrocity.
published in journals such as Security Dialogue,
Global Governance, and Global Responsibility
to Protect. Prior to completing her PhD, she The international refugee
worked for non-government organisations regime under stress
in France, Thailand and Cambodia, and for
The international refugee regime
an Advisory Group of AusAID, Australia.
has its contemporary origins in the
post‑First World War period with the
first High Commissioner for Refugees
Dr Cecilia Jacob
established by the League of Nations. In
the wake of the Second World War, the
United Nations High Commissioner for
Refugees (UNHCR), now also commonly
known as the UN Refugee Agency, originally
had a temporary three-year mandate to
resettle persons living outside their country
of origin as refugees due to events that
occurred in Europe before 1 January 1951.
The Refugee Protocol came into force
in 1967, lifting both these temporal and
geographic limitations on the definition
of a refugee to address the persistent
need for refugee protection in the decades
following the original convention.
Continues on next page
The significance of local strategies as the
primary recourse for survival by threatened
civilian populations before international
assistance arrives is still under-researched
and largely overlooked in international civilian
protection policy and programming.
Forced migration, early warning and the prevention of mass atrocities 15paradigm_shift — Edition 03 Autumn 2018
The principle of asylum rests at the heart of the with 11,000 staff worldwide. According to However, in the 1980s, the growing demand Despite the generous intake of Holocaust
international refugee regime. Asylum refers UNHCR, 20 people are displaced by conflict for refugee protection generated growing survivors around the world after the war, and
to the totality of protection offered by a state or persecution every minute. In 2017, the resistance to increased resettlement the creation of Israel as a Jewish homeland,
to a refugee who is living on its territory. The number of people displaced worldwide needs in the Global North, and to local the lessons of the Holocaust remain highly
principle of non-refoulement, or not forcing reached a historic high at 65.6 million, and integration solutions in the Global South. salient today. Early openness and genuine
03
people to return to the frontiers of a territory by far the majority of those displaced compassion by states to grant entry could
The role and mandate of the UNHCR have
where their life or freedom are threatened, (40 million) remain within their own have prevented a much greater loss of life.
therefore adapted to these global pressures,
is the most basic level of protection a state country in situations of vulnerability as
and it has assumed a more political role in the A growing number of scholars are
can offer a refugee. However, states can offer internally displaced persons (IDPs). The
domestic affairs of conflict-affected countries documenting effective strategies that civilians
much more comprehensive protections to significant rise in the number of IDPs
to prioritise early repatriation, rehabilitation have used in periods of targeted killings
refugees claiming asylum on its territory, globally (from 1.2 million in 1982 when first
and reintegration of refugees in their countries to escape and survive violence. Civilian
should it choose. The 1967 UN Declaration counted to 40 million in 2018) is a worrisome
of origin. Michael Barnett argues in his populations use local knowledge and networks
on Territorial Asylum, the 1969 Organisation trend, given that access to international
2001 International Migration Review article to devise strategies for self‑protection, as
for African Unity (OAU) Convention, protection from state and non-state violence
‘Humanitarianism with a Sovereign Face’ that Erica Baines and Emily Paddon have shown
and the 1984 Cartagena Declaration all is restricted by government access.
these strategies of ‘containment’ developed in a unique study of civilian self-survival
acknowledge that granting asylum is
There are several reasons populations during the 1990s are used as a humanitarian strategies in Uganda published in 2014. Other
a humanitarian and apolitical act.
may be unable to cross territorial borders justification to mask the political and security studies have shown how strategies such
These protections, however, are afforded only to flee persecution; these may be physical concerns of wealthy states. Such containment as the use of cell phones or ringing church
to persons who have crossed an international barriers due to geographic isolation, difficult strategies have exacerbated the steep increase bells, for example, are used by populations
border and are able to claim asylum in a terrain or maritime borders, or the closed in numbers of IDPs worldwide and raised as early warning of imminent attacks by
host country. Most of the world’s population borders of neighbouring states. However, concerns that early repatriation violates the militia between villages that give populations
displaced by violent conflict and persecution a final reason that bears on international basic rights of populations to seek asylum time to flee. While Baines and Paddon
Dr Cecilia Jacob
remain within their own states, where only politics is the increased opposition by many from persecution, as outlined in the Universal show that local populations seek to appear
the non-binding UN Guiding Principles on states in the international community, Declaration of Human Rights, Article 14(1),1948. neutral, to avoid or accommodate militia
Internal Displacement, established in 2004, to receiving large numbers of refugees groups and ensure their survival, fleeing
apply. Although consistent with international arriving on their doorsteps. The UNHCR Civilian self-protection strategies violence remains a crucial mode of survival
humanitarian, human rights and refugee law, was originally established as a purely when these strategies are ineffective.
and atrocity crime prevention
these principles cannot be legally enforced. humanitarian organisation, designed to
The significance of local strategies as the
facilitate the protection and resettlement Fleeing persecution has historically proved to
With the number of violent conflicts on the primary recourse for survival by threatened
of refugees. Throughout the Cold War, the be one of the most successful forms of atrocity
rise, the international refugee system today civilian populations before international
UNHCR pursued ‘durable solutions’ for prevention for populations. For example, the
has become institutionalised and massive. assistance arrives is still under-researched and
refugee populations through voluntary United States Holocaust Memorial Museum
In 2017, the annual budget of the UNHCR largely overlooked in international civilian
repatriation, local integration in host countries, states that 240,000 Jews living in Germany and
rose to an unprecedented US$7.7 billion, protection policy and programming. Policy
or resettlement in a third country. Austria had emigrated by 1939 to countries
communities should consider further the
where they were safe from German invasion
relationship between forced migration, and
and the Holocaust. While many lives were
the significance of self-protection strategies
saved due to immigration, visa restrictions
that include fleeing sites of persecution
tightened across Europe, Britain and the
and targeted killing in the context of their
US during the Second World War, even as
atrocity prevention strategies. Central to
There are several reasons populations may reports of the horrors of the Holocaust became
these strategies is the need to better protect
known. Many more asylum seekers were
populations that have uprooted and fled
be unable to cross territorial borders to flee denied protection at a time where the granting
their homes to survive, and to prevent or
of asylum was the only means of survival
persecution; these may be physical barriers for hundreds of thousands of Jews queuing
resolve violent conflicts much earlier.
due to geographic isolation, difficult terrain up for small numbers of visa placements, or
those detained trying to enter Palestine.
or maritime borders, or the closed borders
of neighbouring states.
16 ANU College of Asia & the Pacific Forced migration, early warning and the prevention of mass atrocities 17paradigm_shift — Edition 03 Autumn 2018
Forced migration and Given the interrelationship between these
critical areas of international policymaking,
atrocity crimes
where are the opportunities for national and
Nearly 700,000 refugees have fled Myanmar international policymakers to respond? Three
since its government’s security forces launched areas are highlighted here briefly. First, there
03
‘clearing operations’ in the region on 25 August is still a need for showing greater generosity
2017. Military operations were a response towards forcibly displaced populations,
to attacks by the Rohingya Salvation Army including support for the countries that are
on an army base and police posts, yet the carrying the heaviest burden. The international
systematic violence against the minority community has been pressed to increase
Rohingya population compounds decades funding and resettlement capacity, yet the
of racial and religious discrimination, and scale of the global refugee crisis and the
neighbouring Bangladesh has accommodated
Owen_Holdaway/Shutterstock.com
heavy economic and social burden being
hundreds of thousands of refugees in camps placed on poorer host countries mean that
and as unregistered migrants for many years. much more giving and burden-sharing is
The violence against the minority population urgently needed to alleviate these pressures,
rapidly escalated, with an estimated 325 particularly by the world’s wealthiest states.
villages burnt, thousands killed through brutal
violence and mass graves discovered after the Secondly, there is a need to recognise sudden
commencement of the military campaign. onset and largescale population flows as early
warning signs of pending mass atrocities that
While international investigations are still require an urgent response. In the case of
being called for, the UN High Commissioner Myanmar, population flows coincided with
Dr Cecilia Jacob
for Human Rights, Zeid Ra’ad Al Hussein rapid and systematic destruction of villages
and UN Special Rapporteur on human and brutal torture and killings. Young babies
rights in Myanmar, Yanghee Lee, have were ruthlessly killed in front of their mothers.
both publicly stated that the situation in Addressing the international refugee crisis Yet, despite these commitments, the granting
Women were raped on mass, and many were
Myanmar may constitute genocide. The must not just alleviate the back-end of the of asylum continues to be viewed by states
burnt or killed afterwards. Efforts at diplomacy,
rapid displacement of such large numbers of problem, but also needs to deliver on the as a security concern and a political process,
refugee protection and international
people illustrate the severity of the atrocity, front end – by preventing new situations of rather than a humanitarian and apolitical
condemnation were simply too little, too
the urgent requirement to make intricate forcible displacement from taking place. act, particularly by the world’s wealthiest
late to halt the atrocity crimes committed.
connections between situations of forced states. Globally, the resettlement places
States and the international community Governments worldwide, including those in
migration, and the need for concerted and available to refugees have doubled since 2012,
must have appropriate mechanisms to the West, have expressed greater willingness
effective interventions to prevent imminent, yet the annual intake of 160,000 refugees
respond to clear warning signs of atrocity and commitment to investing in the
or indeed halt ongoing atrocity crimes. worldwide pales to the millions left in limbo.
crimes, sufficient resources and capacity to prevention of violent conflict and atrocity
Meanwhile, middle and low-income countries
According to Phil Orchard in the make this possible and the political will to crimes. International commitments include
bear the greatest burden, hosting most of
Oxford Handbook on the Responsibility to Protect make difficult choices when necessary. participation in global and regional networks
the world’s displaced population, and the
in 2016, there are three ways to understand like the Global Action Against Mass Atrocity
Finally, much greater political priority and heaviest economic burden falls to many of the
the relationship between forced displacement Crimes, the Latin American Network for
effort need to be directed towards prevention. world’s poorest states, such as South Sudan
and mass violence. The first is that forced Genocide and Mass Atrocity Prevention, and
We now have much more systematic and Chad, and their local communities.
displacement can be a product of mass the Regional Committee on the Prevention
knowledge and understanding of the stages
atrocities as people flee from widespread and Punishment of Genocide, War Crimes Not only is greater compassion and
of violence escalation and the tools needed
and systematic violence. Secondly, forced and Crimes against Humanity and all generosity required of the international
to prevent violent conflict and atrocity
displacement can be a form of mass atrocity, forms of Discrimination of the International community to help alleviate the current
crimes. While this is not – and may never
where involuntary deportation and transfers Conference on the Great Lakes Region. Fifty- global refugee crisis, but it has a responsibility
be – a perfect science, there is much more that
constitute crimes against humanity and nine countries and the European Union to deliver on its commitments to conflict
can and should be done to prevent violent
war crimes. Thirdly and finally, where have appointed Responsibility to Protect resolution, conflict prevention and atrocity
conflict and atrocity crimes much earlier on.
international interventions to halt mass focal points, tasked with implementing prevention. This help to reduce the number
atrocities occur, such interventions will atrocity prevention institutions and of new refugees and IDPs being added
invariably drive further displacement. legal reform in the domestic contexts. daily is needed more than ever before.
18 ANU College of Asia & the Pacific Forced migration, early warning and the prevention of mass atrocities 19Autumn 2018
Dr Cynthia Banham Dr Cynthia Banham is a Sydney-based writer Apathy in the face of human suffering: when
and visitor at the School of Regulation and it is close to home it is most confounding,
Global Governance based at ANU. She is a even if it does concern the mistreatment
lawyer, a former foreign affairs and defence of non-citizens. Why don’t we care more
Apathy, the mistreatment about the suffering of others, especially
correspondent for the Sydney Morning
Herald and was, until recently, a Research when it is within our power to end it?
Fellow at the University of Queensland in the
Like the story of the mother, an Iranian
of non-citizens, and the
School of Political Science and International
Studies. Dr Banham obtained her PhD from asylum seeker, who needed heart surgery.
ANU in 2015. She has published two books: Without it, she could die, but she was
04
unwilling to leave her son – a minor with
problem with public
Liberal Democracies and the Torture of
Their Citizens (Hart Publishing, 2017) and acute mental health issues – behind, alone,
A Certain Light (Allen & Unwin, 2018). on Nauru, an island northeast of Australia
in Micronesia. Would not any mother, or
accountability father for that matter, sympathise with
this woman’s position? For 18 months, the
Federal Government refused to let her
bring her son with her to Australia, where
doctors recommended she come to have
the operation. Instead, she remained in
a hot mouldy tent with her son in the
isolated detention camp, her life-threatening
condition going untreated. Eventually, the
Dr Cynthia Banham
woman was flown to Taiwan with her son
for surgery. Stories detailing her plight
were published in sympathetic media
outlets like The Guardian. But the screaming
headlines about Australia’s asylum seeker
policies were not about the mother. They
were instead about the Australian Border
Force Commissioner, Roman Quaedvlieg,
who had been on paid leave since May 2017
while he was investigated over his personal
conduct and allegations he abused his power
to help his girlfriend get a job. In March
2018 – the same week it was reported the
Iranian mother was flown to Taiwan – the
government terminated Quaedvlieg’s
appointment for alleged misbehaviour.
It is a clear, if sometimes awkward
truth, that important social connections Continues on next page
exist not only between the citizens of
a liberal democracy, but also between
citizens and those non-citizens affected
by their governments’ actions that
are carried out for their benefit.
Apathy, the mistreatment of non-citizens, and the problem with public accountability 21paradigm_shift — Edition 03 Autumn 2018
The government’s attempts to avoid scrutiny Accountability mechanisms can be understood
The asylum seeker issue in Australia – of these policies have included diffusing to operate horizontally and vertically. That
the government’s policies and the public’s and obscuring its exercise of power over is, horizontally within government, through
the individual asylum seekers and refugees the separation of powers and public agencies
responses – demonstrate both the fragility affected by its policies in two major ways. empowered to restrain the political executive,
The first involves outsourcing the running and vertically, imposed by citizens and civil
of our public accountability systems and of detention centres to private contractors, society from outside government. Again, the
the consequences for individual rights that and the second is by detaining individuals government has tried to thwart horizontal
offshore in countries with less robust accountability of its treatment of asylum
can ensue. accountability systems, where asylum seekers by, for example, minimising the
04
seekers and refugees are removed from courts’ powers to scrutinise its decisions.
supportive advocacy networks and the It also punished the Australian Human
Australian public is less conscious of their Rights Commission for issuing a report that
presence. The government’s efforts to prevent exposed the abuse and harm being done to
accountability have been both direct and children inside offshore detention centres,
These two examples send conflicting messages Australian Public Service, Martin Parkinson. indirect. For example, it has directly sought by cutting funding and trying to discredit
about public accountability in Australia in There has also been intense questioning to limit the investigative power of national the agency’s former head Gillian Triggs.
a field that has immense consequences for in Senate Estimates hearings of public agencies and parliamentary committees as The government’s attempts to shut down
individual rights and liberties. To understand officials over the status of the investigations well as international human rights monitors by the effectiveness of vertical mechanisms
why Australians don’t care more about and Quaedvlieg’s ongoing position. preventing visits to offshore detention centres. of accountability have been no less severe.
the wellbeing of the almost 2,000 asylum Indirectly, it has militarised the language They have included passing laws making
Why so much scrutiny of the Border Force
seekers and refugees currently detained at around the handling of asylum seekers, so it a criminal offence punishable by jail for
Commissioner? There are no doubt multiple
the behest of our government in miserable
Dr Cynthia Banham
reasons. Foremost among them, however, must that ‘on-water’ matters have become beyond current or former immigration detention
conditions on Nauru and Manus Island, challenge, just like ‘operational security’ centre staff to publicly raise concerns about
be how embarrassing it looks for a government
Papua New Guinea – some for over four years matters are for the defence force: which matters they witness inside the centres.
that stakes its credentials on its tough stance on
– it helps to examine the issue in the context of readily bats journalists’ questions away.
Australian border security to have the future of
the common public accountability challenges
its top uniformed official under such a cloud.
that liberal democracies face today. The asylum
seeker issue in Australia – the government’s Lest one conclude from the Quaedvlieg case
policies and the public’s responses – that public accountability in Australia is in
demonstrate both the fragility of our public a healthy state, we can consider the diverse
accountability systems and the consequences ways in which the Federal Government has
for individual rights that can ensue. sought to avoid accountability for the human
impact its harsh border security policies
On the one hand, the level of interest
have had on individual asylum seekers and
in the inquiries into the actions of the
refugees. Briefly, these policies, known today
Border Force Commissioner suggest there
as ‘Operation Sovereign Borders’, have evolved
are robust checks in place for challenging
over the last 17 years and are supported
the questionable exercise of public power.
by both major Australian political parties.
According to its website, this is the agency
Asylum seekers are mandatorily detained and
responsible for “facilitating the lawful passage
assessed offshore, and are unable to resettle
of people and goods”, for “investigations,
in Australia ever, even after obtaining refugee
compliance and enforcement in relation to
status. They are also held in conditions so
illicit goods and immigration malpractice”, and
unbearable as to act as a disincentive for
for offshore detention. There was not one but
others seeking asylum to attempt the same
two official investigations into the Quaedvlieg Kate Ausburn/Flickr
passage to Australia. Meanwhile, new boats
controversy: one by the Federal Government’s
are intercepted and turned back by Australian
Australian Commission for Law Enforcement
authorities to the country they departed from.
Integrity, the other by the Secretary of
Prime Minister and Cabinet and head of the
22 ANU College of Asia & the Pacific Apathy, the mistreatment of non-citizens, and the problem with public accountability 23paradigm_shift — Edition 03 Autumn 2018
This time, we might ask why the government looking for a clue. Public accountability is a
has put so much effort into avoiding two‑sided relationship between governors and
What can we say about ethics in the context
accountability for its treatment of refugees in the governed that entails responsibilities on of public accountability? Ethics has an
offshore detention? A possible answer is that both sides. Sifting through the literature with
if the Australian public does not know the fellow contributor, Kirsty Anantharajah, we inherent social quality. As Jean-Marc Coicaud
upsetting details of the suffering of individuals were struck by the lack of close examination
inside the centres – the toxic accommodation of the responsibilities of the governed to
and Daniel Warner write, it is about feeling
tents, the suicide attempts, what the actual day demand accountability; most of the focus is that our individual lives extend to the lives
of a child kept in offshore detention looks like – on the governors. Flowing from this, there
it will not question the humanity of the actions is minimal exploration around the question of others.
04
the government takes to prevent asylum of what underpins the responsibilities of
seekers arriving in Australia by boat. Pursuing the governed in the public accountability
such policies would make Australians relationship. This led us to explore the ethical
uncomfortable, but would be accepted by the dimension of accountability which, while
majority as a necessary evil. Or, as the former sometimes (if infrequently) discussed in
prime minister, Tony Abbott, explained to the the literature, is most often considered in To take one example of where a social Australians don’t often talk about this, but
‘countries of Europe’ in 2015, it would ‘gnaw relation to the motives of account givers connection between citizens and non-citizens globalisation and internationalisation connect
at our consciences’ but it was ‘the only way to in serving the people who elected them. affected by the Australian Government’s all of humanity, and renders the ethical
prevent a tide of humanity surging through actions has been largely overlooked in public obligation to have regard for the rights of
What can we say about ethics in the context of discourse, consider the issue of arms exports. others in assessing the acceptability of their
Europe and quite possibly changing it forever’.
public accountability? Ethics has an inherent Earlier this year the Federal Government government’s conduct inescapable. There is
Something else is going on, aside from the social quality. As Jean-Marc Coicaud and announced it was creating more jobs by a clear deficiency in the way we understand
government obscuring the full picture of how Daniel Warner write, it is about feeling that our increasing the manufacture and export of and practice public accountability around the
Dr Cynthia Banham
asylum seekers are deterred from coming by individual lives extend to the lives of others. arms for warfare. Religious-based justice obligations of citizens to make accountability
boat so that, while the public’s conscience We recognise that others have rights and groups pointed out the ethical issues implicit demands of their government, where the
is gnawed at, it will still accept the measures acknowledge that there exists a duty to respect in pursuing national prosperity by growing an rights of others (non-citizens) are concerned.
are necessary and justified. What of the them. Proponents of accountability argue it will industry whose existence depends on ensuring
public’s obligation to demand to see the full become more effective when it is understood to It was the Iranian journalist and refugee on
the continuation of wars that terrorise, maim
picture, in all its ugliness, to insist on robust encompass an ethics of doing what is right and Manus Island, Behrouz Boochani, who pointed
and kill civilians and cause them to flee their
accountability of its elected representatives having a regard for others. However, must this out that Australian citizens have a stake
homes and countries. There are obvious social
for policies that damage the physical and regard for others be limited to fellow citizens? in holding their government to account
connections between Australian citizens
mental wellbeing of a minority of others, When a public official’s actions encompass for its treatment of others. In The Saturday
profiting from the manufacture and export of
among them children? Of course, there are harm to a non-citizen, is there no ethical Paper he wrote that by failing to do this, the
such weapons and the populations overseas
many examples of civil society actors in obligation on the part of the citizens who elect Australian public risked the future of its own
where these wars will be fought – between
Australia challenging the government over that government to demand accountability? democracy. The resistance of refugees on
us and them. They are connections the
its treatment of asylum seekers. They include Manus Island against their treatment was:
government would have voters overlook.
It is a clear, if sometimes awkward truth, that
refugee advocacy groups, human rights “in order to return something valuable to the
important social connections exist not only I link the issues of jobs from arms exports
NGO’s, sections of the media, religious groups majority of the Australian public, to return what
between the citizens of a liberal democracy, but to the cruel treatment of refugees because at
and some medical professionals. But the it has lost, or what it is in the process of losing”.
also between citizens and those non-citizens the core of the ethical case against both is a
offshore detention regime remains in place
affected by their governments’ actions that dimension that is so often missing from public The apathy we have seen with regards to
and, while there have been small victories
are carried out for their benefit. Citizens and political discourse in the fields of security, offshore detention is only possible because
for advocates, the calls for change have not
and non-citizens are linked not only by a immigration, defence and foreign policy. of a widespread denial by the public of
coalesced into a force strong enough to be of
common humanity, but also by the fact that the social connections that exist between
concern to the government at the ballot box.
the world is thoroughly internationalised citizens and non-citizens affected by its
The question posed at the start of the essay – and globalised. The policies pursued, and government’s policies. Were such connections
why don’t we care more about the suffering privileges enjoyed, in wealthy countries are acknowledged, it would be much harder to
of others, especially when it is within our not without consequence for those in distant, be so dismissive of the wellbeing of others.
power to end it – led me to examine the less prosperous or more troubled, places.
existing scholarship on public accountability,
24 ANU College of Asia & the Pacific Apathy, the mistreatment of non-citizens, and the problem with public accountability 25You can also read
