In June last year a solitary Uighur from Xinjiang Province in China arrived in Phnom Penh seeking asylum. He registered his claim with the Cambodian Government and with UNHCR.
Like East Timor, Cambodia became a signatory to all major UN human rights instruments when in receipt of considerable UN assistance. They, with the Philippines, are the only three of Australia's South East Asian neighbours to have acceded to the UN Convention on Refugees. The Cambodian government has been very slow in setting up its own procedures for refugee determinations, being dependent on UNHCR to provide the service.
UNHCR had been working for many years with the Cambodian authorities to come up with a workable refugee law. UNHCR did not invite input from other refugee or human rights organisations and refused any civil society scrutiny of the proposed law. During the interim refugee status determination process, independent legal representation as requested by asylum seekers was neither permitted nor encouraged.
Having been interviewed four times to determine refugee status, the solitary Uighur had a strong claim backed by documentary evidence. He was worried after one meeting with the head of the Cambodian government's unit responsible for refugee processing who told him that China was a good place which respected its people.
Meanwhile, things turned sour back in Urumqi, Xinjiang Province between 5 and 7 July 2009. Tensions between Uighurs and newly arrived Han Chinese erupted in violence in the factories and on the streets. More than 700 persons were arrested and about 200 persons were killed.
By October, participants in the street violence were prosecuted in courts constituted by 'politically reliable' judges and described in a resolution to the US Congress as being 'without the benefits of any due process, public observers, or court procedures in violation of international legal standards'.
A further 21 Uighurs, including a pregnant mother and her two infant children, then fled overland through Vietnam and into Cambodia. They were cared for by the Jesuit Refugee Service (JRS) which provided them with legal representation and humanitarian assistance. UNHCR provided them with letters stating that they were persons of concern to UNHCR and under the protection of the UNHCR office.
The plight of the Uighurs in Phnom Penh became international news once the Washington Post carried a story about them on 3 November 2009. Radio Free Asia even published the names and dates of birth of some of the asylum seekers. Media reports stated that the Chinese government sought the extradition of the Uighurs.
On 9 November 2009, there were credible media reports that the Chinese government had executed nine persons involved in the Urumqi violence. On 7 December 2009, the Cambodian Ministry of Interior informed the press that they were waiting for a decision from UNHCR on the status of the Uighurs and that the Cambodian government would cooperate with the UN agency.
A week later, UNHCR met with JRS and informed them that the Cambodian Government was very close to promulgating its long awaited refugee law but had asked UNHCR to continue assistance with the refugee determination process of the Uighurs. The Cambodian Government also asked UNHCR to provide a safe house where the Uighurs could be brought together, and assured security.
JRS expressed concern to UNHCR, saying the Uighur asylum seekers were at risk. JRS highlighted three concerns in light of the close political ties between China and Cambodia. Cambodia had a chequered history of providing protection to refugees from China; the vice-President of China was about to visit Cambodia to conclude major business deals; and there were credible reports that China had requested the extradition of the Uighur people.
Also discussed was the complaint, previously brought to UNHCR's attention, that the Cambodian head of the refugee office had told the first Uighur asylum seeker that he thought China was a good place that respected its people. JRS also informed UNHCR of threatening telephone calls received by their legal officer, Taya Hunt, asking why she was 'helping terrorists from China'.
JRS advised UNHCR that they wanted to move the Uighurs out of the capital to a less vulnerable place, but UNHCR advised strongly against this.
On 17 December 2009, the Uighur asylum seekers were taken to their final safe house (pictured) after spending the previous night in a site reserved for Montagnard refugees from Vietnam. And after years of delay and protracted negotiations with UNHCR, the Cambodian government mysteriously and promptly issued a sub-decree on procedures for processing refugees and asylum seekers.
Next evening, the Uighurs were praying when Cambodian police entered the safe house and abducted them at gunpoint. Cambodian authorities then rang UNHCR and said they had been deported. The UNHCR representative conveyed this message to JRS, saying that in his 30 years history in UNHCR this was the most flagrant violation of the 1951 Convention on Refugees he had experienced.
Embassies, international bodies and NGOs were alerted. It turned out that the asylum seekers had not yet been deported; they were being housed in the Ministry of Interior. Diplomatic representations at the highest level received no response. The Uighurs, including the pregnant woman, her husband and two infant children and the man who arrived legally in June, were deported via chartered plane the following night.
On 20 December, the day after the forced return, the Chinese Vice President Xi Jinping arrived in Phnom Penh to sign contracts worth US$1 billion.
None of the refugee claims had been determined in accordance with new procedures endorsed by UNHCR. The long awaited Cambodian refugee law provides for an interview process: 'If a negative decision is made, reasons shall be given for the rejected application.' There is then provision for an appeal within 30 days, whereupon the Immigration Department should consider the appeal within 15 days.
None of these procedures were followed in the first test case of the new law two days after its promulgation. No credible explanation was offered for the peremptory rejection of the Uighur claims.
The new law does provide that officials of the Ministry of Interior 'may immediately reject the application for refugee status' if the applicant does not cooperate or if the applicant does anything to harm national security and public order. There was no evidence of non-cooperation or disruptive behaviour. This was simply a matter of political convenience for the Cambodian government not wanting to cause any embarrassment to the Chinese.
Despite years of training for Cambodian immigration officials, the rule of law counted for nothing with the law's first test. In fact, the prompt passage of the sub-decree after years of waiting was a political artifice for the exercise of unreviewable, arbitrary power. The sub-decree underwent a last minute change with a proviso: 'The recognition of a refugee, the termination of refugee status and the removal of refugee status shall be determined by ministerial order of the Interior Minister.'
On the day Vice President Xi Jinping signed the deals, he thanked the Cambodians for the return of the Uighurs. The Cambodian Foreign Ministry reported him saying, 'It can be said that Sino-Cambodian relations are a model of friendly cooperation.' Cambodia's chief government spokesman was quoted in the New York Times: 'China has thanked the government of Cambodia for assisting in sending back these people. According to Chinese law, these people are criminals.'
The Chinese government provides no access for UNHCR, lawyers or family members to the returned Uighurs. On 14 January 2010, a Khmer newspaper published an unconfirmed report that four of the returnees had been condemned to execution and 14 sentenced to life imprisonment. The Uighurs were not only denied protection in Cambodia; they were forcibly returned without even any pretence at determination of their claims. The refugee status determination procedure became a foil for gathering them together awaiting forced return to China.
Cambodia's long awaited refugee law is a sham. It may be a signatory to the UN Convention, but to date that counts for nothing.
Fr Frank Brennan SJ is professor of law at the Australian Catholic University's Public Policy Institute. He visited Phnom Penh last October and met some of the Uighurs being assisted by the Jesuit Refugee Service.