We write in advance of your upcoming session on the Republic of Nauru’s compliance with the Convention on the Rights of the Child.

Human Rights Watch has documented numerous child rights violations in Nauru this year. This submission relates to Articles 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 19, 22, 24, 27, 28, 31, 34, 37, and 38 of the Convention on the Rights of the Child. It proposes issues and questions that Committee members may wish to raise with the Nauruan government as the Committee reviews Nauru’s compliance with its obligations under the Convention on the Rights of the Child. 

Background

The Australian and Nauruan governments signed Memoranda of Understanding (MOUs) in 2012 and 2013 designating Nauru as a “regional processing country.”[1] Since July 2012, all asylum seekers who arrive in Australia by boat (including unaccompanied children and families) have been transferred either to Nauru or Manus Island in Papua New Guinea.[2] Under the MOUs, the Republic of Nauru agreed to host asylum seekers transferred to the island by Australia in detention facilities known as “Regional Processing Centres.”[3]

For months and in some cases years after their arrival in Nauru, child asylum seekers were held in these detention centers, surrounded by fences and guarded by security services. They lived in crowded tents where the heat was unbearable, with temperatures indoors regularly reaching 45 to 50 degrees Celsius (113 to 122 degrees Fahrenheit). With humidity between 75 and 90 percent, mold grows quickly on tent walls and ceilings, and skin rashes and other infections spread rapidly. Sudden, torrential rains flood roads and pool on the tent floors. On several occasions, rains have also uncovered unexploded World War II ordnance on the detention center grounds.[4]

Refugees and asylum seekers described conditions in these detention camps as “prison-like,” with regular searches of their tents by guards and regular confiscation of “prohibited” items—including food and sewing needles. Food was distributed at set times, and no one was allowed to bring any food into the tents, even for young children. Until early 2015, asylum seekers could take one two-minute shower a day. There were long lines for toilets that quickly became so dirty that staff refused to clean them. They could use the internet once a week at most, and could not leave the camp.[5]

Since October 2015, Nauru has allowed asylum seekers greater freedom of movement around the island, a step widely interpreted as a response to litigation in Australia challenging the lawfulness of asylum seekers’ detention.[6]

Those the Australian and Nauru governments recognize as refugees are generally provided accommodation in open camps or other housing throughout the island. Families are generally assigned prefabricated units or converted containers, and single men are placed in rooms with space only for a bed and a small shelf.[7]

There are currently several hundred asylum seeker and refugee children on Nauru. About one-third of the 1,200 refugees and asylum seekers on Nauru, including 49 children, remain in tents in the Regional Processing Centres, people interviewed said. They are allowed to leave during the day, although they are subject to monitoring by guards and other restrictions on their liberty. Smartphones are prohibited inside the centers.[8]

Human Rights Watch and Amnesty International visited Nauru for 12 days in July 2016 to investigate the living conditions of asylum seekers and refugees on the island and issued a joint briefing paper documenting numerous breaches of children’s rights suffered by refugee and asylum-seeker children living in the Regional Processing Centres.[9]

Nauru and Australia are jointly responsible under international law for the human rights violations against refugee and asylum-seeker children living in Nauru.[10] Although Australia’s offshore operations on Nauru are entirely financed and almost entirely controlled by Australia, Nauru is jointly liable for the violations that occur on its territory.[11]

In addition to the report by Human Rights Watch and Amnesty International, Australia’s offshore detention of refugees and asylum seekers on Nauru has been the subject of investigation and public reporting by the office of the United Nations High Commissioner for Refugees (UNHCR),[12] the Australian Human Rights Commission,[13] and an independent inquiry led by Australia’s former integrity commissioner, Philip Moss (the Moss Review).[14] In addition, in August 2016, The Guardian released the Nauru Files, over 2,000 “incident reports” filed by caseworkers between May 2013 to November 2015. These leaked documents contain reported acts of self-harm by children as well as harassment and violence against refugees and asylum seekers held on Nauru.[15]

Primary recommendations

Nauru should end its arrangement with Australia to hold children and adults while Australia processes their asylum claims and to continue to hold these persons indefinitely once they have been recognized as refugees. Furthermore, Nauru should encourage Australia to terminate its policy of sending asylum seekers to offshore detention and processing centers, such as those on Nauru. Nauru should also seek to establish relationships with suitable countries in the region, including Australia and New Zealand, in which refugees could be permanently settled.

While Nauru continues as a “regional processing country” for children and adults who seek asylum in Australia, the Nauruan government should take action to ensure that children’s rights recognized in the Convention on the Rights of the Child are respected, protected, and fulfilled, especially with regard to:

  1. Responding to complaints of physical and sexual violence;
  2. Ensuring children have access to appropriate medical care for their physical and mental well-being;
  3. Improving living conditions for refugees and asylum seekers;
  4. Ensuring that rights to freedom of expression and information are upheld; and
  5. Preventing discrimination and harassment of refugee and asylum-seeker children in schools.

Consistent with its obligation to undertake all appropriate measures for the implementation of rights recognized by the Convention on the Rights of the Child, including within the framework of international cooperation where needed,[16] Nauru should seek assistance from United Nations bodies such as UNHCR, for financial and administrative support to achieve the above actions. Furthermore, Nauru should seek financial support from the Australian government, to ensure that police, medical practitioners and education facilities are sufficiently resourced to protect and uphold the rights of asylum-seeker and refugee children.

Harassment and violence, including sexual assault

Articles 2, 3, 19, 24, and 34

Refugees and asylum seekers told Human Rights Watch and Amnesty International that they suffer regular violent physical attacks from local Nauruans. Children as well as adults have reported acts of intimidation, harassment, or violence directed at them or family members by Nauruans acting alone or in groups.  Types of physical abuse include spitting, throwing bottles and stones, swerving vehicles in the path of refugees and asylum seekers as they walk or ride on motorbikes, breaking accommodation windows, and destroying other property.[17]

Several of those interviewed by Human Rights Watch and Amnesty International described acts of violence committed by guards and service providers against children.[18] Similar accounts appear among the 66 reports of assault on children among the Nauru Files. For example:

  • On February 22, 2015, a caseworker spoke with three boys and reported, “At approx 11:15 today, the boys were in tent [redacted]. Local [security] officer [redacted] entered the tent yelling at them. The boys acted out for [caseworker] that [redacted] grabbed [redacted] by the throat and pushed him to the ground. When [redacted] tried to get up, [redacted] picked him up by the shirt, held his arms and swung and threw him towards the exit. [Redacted] also pushed [redacted] arm behind [redacted]’s back which [redacted] said caused him pain.”[19]

 

  • In another incident report involving a child and filed the same month, a woman reported that “she witnessed a local male guard "grab [redacted] by the hair, throw him and say fuck you.”[20]

 

  • In June 2015, three boys told a caseworker that “in camp Nauruan guards had been hitting and swearing at children. The boys voiced their concerns about disclosing this information as they were worrie[d] what the consequences would be to their parents. They did not [want] to discuss the matter further as there was a guard on the bus.”[21]

 

  • In a report submitted in September 2015, a boy “approached Save the Children caseworker . . . crying and was observed to be very shaken.” The boy “reported that a Wilsons Security guard had just hit him.” He explained that he was in a tent with three other asylum seekers “when a security guard entered and yelled at them, ‘Why are you in here?’” The security guard then “grabbed him around the throat and hit his head against the ground twice.”[22]

 

  • An incident report filed in October 2015 notes that the Save the Children caseworker observed a Nauruan guard “chasing after [a boy] swinging his arm with a closed fist at [the boy] indiscriminately and forcefully, and striking him on a number of occasions across the back and shoulders.”[23]

Sexual assault

Sexual assault of refugee and asylum-seeking children on Nauru—by security guards as well as by other refugees or asylum seekers—has also been reported since 2013.[24] The Moss Review described six reports of sexual assault of children, allegedly by contract service providers in some cases and by adult detainees in other cases.[25] In addition, the Moss Review identified five reports of alleged sexual harassment of children by contract service providers.[26]

The Nauru Files contain at least one report of sexual assault of a child by a guard. In that case, a woman reported that “their son [name redacted] had said . . . that one Nauruan officer had put his hand up [their son’s] shorts and was playing with his bottom.”[27] At least 10 other reports in the Nauru Files described acts of sexual assault against children,[28] although it is not always clear from the redacted reports whether the alleged perpetrator was a guard or other staff member, a refugee or asylum seeker, or a member of the local community.

Bullying and harassment at school

Harassment and violence against refugee children in local schools also appears to be prevalent. Parents and children told Human Rights Watch and Amnesty International that they are regularly called names, shoved, and subjected to other forms of bullying by Nauruan students.[29] Similarly, a July 2016 evaluation by Save the Children Australia found that refugee children, particularly girls, were subjected to physical violence by Nauruan students.[30]

In one case described in the Nauru Files, a girl told a caseworker that she had been “punched in the face” by a Nauruan student at the Yaren Primary School, which they both attended. While speaking to the girl, the caseworker “noticed that there was some dried blood on her nose and what looked like a small cut.”[31] In another account from the Nauru Files, one student reported that she had been hit by her teacher at Nauru Primary School.[32]

Some refugee and asylum-seeking children reported that they have been subjected to sexualized forms of harassment while at school. For example, a girl who attended a Nauruan primary school told a caseworker in September 2015 that when she was at school, “Nauruan boys run up and touched me on the bottom and then run away.”[33] In another report made the same month, the mother of a different girl told a caseworker that her daughter was refusing to go to school because “Nauruan boys at Nauru College [a secondary school] continue to touch her on her bottom and hug her.”[34]  A third girl told a Save the Children caseworker that she would no longer be attending classes at Nauru Secondary School because of two Nauruan boys who made her feel uncomfortable. One of these boys touched her repeatedly on her shoulders and arms even though she told him to stop. The other “continues to call her his girlfriend, tell the other children she is his girlfriend, and on one occasion . . . followed her into a female toilet cubicle.”[35]

The consequences of harassment and violence

Children and adults told Human Rights Watch and Amnesty International that to avoid persistent harassment and violence, they frequently avoid leaving their accommodations, particularly at night.  Women and girls rarely leave the camps and then only in groups or with male companions. Some children have stopped attending local schools to avoid harassment and violence.[36]

Lack of police investigation

Asylum seekers and refugees told Human Rights Watch and Amnesty International that local police make little or no effort to investigate attacks against them, even in cases where the victims were able to clearly identify the perpetrators. Often police disregard their complaints and sometimes discourage them from filing reports.[37]

Of some 50 cases referred to the Nauruan police by Australia’s Department of Immigration and Border Protection over the last three years, only five charges have been filed and two convictions have been recorded, according to one news account.[38]  Nauru’s former chief justice, Geoffrey Eames, QC, testified before an Australian Senate Select Committee in July 2015 that “there is a serious question about [police] independence and about their willingness to investigate allegations against Nauruans who are charged with assaults of non-Nauruans.”[39] Nauru enacted a child protection act in June 2016,[40] but it is not clear what measures it has taken to implement the new law.[41]

Rights infringed

Harassment and violence infringe children’s rights to protection against all forms of violence and to the highest attainable standard of health and have negative implications for their enjoyment of other rights, including the right to an education, the right to an adequate standard of living, and the right to rest and leisure.[42]

The failure of the Nauruan police force to effectively investigate complaints of violence, including sexual assault, violates Nauru’s obligations to provide fair, effective, and prompt access to justice and make available adequate, effective, prompt, and appropriate remedies for human rights violations.[43] The failure to conduct appropriate investigations may also amount to a breach of asylum-seeker and refugee children’s right to freedom from discrimination.[44] Furthermore, the failure of police to conduct appropriate investigations into allegations of sexual assault violates Nauru’s obligation to protect children from all forms of sexual exploitation.[45]

Questions and Recommendations

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What steps has the government of Nauru taken to implement the Child Protection and Welfare Act 2016?
  • What steps have the Nauruan police force taken to investigate the allegations of sexual assault of refugee and asylum-seeking children contained in the Moss Review and the Nauru Files?
  • What steps have the Nauruan police force taken to investigate allegations of other forms of violence against refugee and asylum-seeking children?

Human Rights Watch encourages the Committee to make the following recommendations to the government of Nauru:

  • Investigate allegations of and, as appropriate, prosecute individuals responsible for acts of violence against children, including sexual assault.
  • Ensure that the police force is adequately trained and funded to respond to the reports of physical and sexual abuse.

Attempted suicide, other acts of self-harm, and mental well-being

Articles 19, 24, and 39

Nearly every asylum seeker and refugee on Nauru interviewed by Human Rights Watch and Amnesty International expressed concern about their mental well-being, describing high levels of anxiety, trouble sleeping, mood swings, and feelings of listlessness and despondency that began when they were forcibly transferred to Nauru.  Children had begun to wet their beds, suffer nightmares, act out, and in some instances had stopped interacting with or even speaking to people outside of their immediate families.[46]

Human Rights Watch and Amnesty International spoke with children and with parents of children who had considered or attempted suicide or had engaged in other acts of self-harm, such as cutting their arms.[47] In an indication of the prevalence of these serious concerns, the Nauru Files contain 30 reports of self-harm by children and 159 reports of attempted self-harm by children.[48] The Australian Human Rights Commission, UNHCR, and other independent agencies have observed that prolonged detention in conditions that violate the prohibition on ill-treatment exacerbated the trauma many had suffered from persecution in their home countries and the abuses and other hazards they faced on their journeys to Australia.[49]

Two agencies, International Health and Medical Services (IHMS) and the Offshore Service for Survivors of Torture (OSSTT), provide mental health services for refugees and asylum seekers under contracts with the Australian government.[50]

IHMS, the main health service provider for refugees and asylum seekers,[51] appears to rely largely on strong sedative and anti-psychotic medication—for children as well as adults—to address mental health issues. Refugees and asylum seekers told Human Rights Watch and Amnesty International that these medications have severe side effects but provide little relief.[52]

The OSSTT officially deals only with previous trauma.[53] Refugees and asylum seekers were not aware of any mental health services provided by the government of Nauru, and it is likely that no such services exist.[54]

Nauru’s obligation to pursue full implementation of the right to the highest attainable standard of health[55] includes “the obligation to provide adequate treatment and rehabilitation for children with mental health and psychosocial disorders while abstaining from unnecessary medication.”[56] In addition, Nauru is obligated to take all appropriate steps to promote the physical and psychological recovery of children who are victims of abuse, ill-treatment, and armed conflict,[57] circumstances that many

refugee children faced before their arrival in Australia and forcible transfer to Nauru.

Questions and recommendation

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What mental health services are available to Nauruan children?
  • What measures are in place to ensure and protect the mental health of asylum seeker and refugee children?
  • What is the government doing to reduce the frequency of self-harm and suicide rates of asylum seekers and refugees?

Human Rights Watch encourages the Committee to make the following recommendation to the government of Nauru:

  • Ensure, if necessary through international assistance and cooperation, that all children, including refugee and asylum-seeking children, receive appropriate mental health services.

Lack of Appropriate Medical Care

Articles 24, 39, 6(2), and 9

The quality of medical care for refugees and asylum seekers on Nauru is poor. Medical equipment is rudimentary, and specialist medical attention is not regularly available. Dental services are largely limited to tooth extraction. Specialized medical equipment and staff are not available on Nauru; Nauruans who require more than basic medical care are sent to Australia or Fiji. (Refugees and asylum seekers may be sent to Papua New Guinea and less frequently to Australia for care not available on Nauru.) Refugees and asylum seekers reported that the hospital lacks even basic supplies, such as bandages or sterile gloves.[58]

In several of the cases Human Rights Watch and Amnesty International reviewed, doctors made written requests in medical reports for overseas treatment for refugees and asylum seekers because the hospital lacked the necessary expertise or equipment. Those referred for overseas treatment may wait for months before they are transferred.[59]

Some of those interviewed said that they had developed serious medical problems in Nauru and that they had received virtually no specialized medical attention. They had heart and kidney diseases; diabetes accompanied by weight loss and rapidly deteriorating eyesight; and back problems leading to reduced mobility, among other conditions. Parents were particularly critical of services available to women during pregnancy and childbirth and said that newborns suffered from persistent infections and other medical conditions.[60]

Refugees and asylum seekers reported that both the IHMS medical staff and Nauru’s hospital often refuse to take their complaints seriously and, in most cases reported to Human Rights Watch and Amnesty International, prescribe nothing but painkillers. Refugees and asylum seekers described several instances in which they tried to call an ambulance when their friends or family members needed urgent help, but the hospital refused to send one.[61]

Nauru has an obligation to pursue full realization of the right to the highest attainable standard of health,[62] including by seeking to ensure that functioning public health and health care facilities are available, accessible to all without discrimination, acceptable—both in terms of medical ethics and cultural appropriateness—and of good quality.[63] If necessary, the state should pursue full realization through international assistance and cooperation.[64]

Nauru is not meeting its obligations to provide necessary medical assistance and health care to all children, including refugee and asylum-seeking children, and to ensure appropriate pre- and post-natal health care for pregnant women.[65]

Moreover, medical transfers from Nauru to Australia and Papua New Guinea are frequently carried out with little notice, often separating family members. Children are not given the opportunity to speak to their parents before the parents are transferred. Separation in this manner frequently causes children considerable anguish and may constitute a breach of asylum-seeker and refugee children’s right to family life.[66]

Questions and recommendations

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What measures has the government of Nauru taken to increase the availability and improve the quality of necessary medical assistance and health care for all children and to ensure appropriate pre- and post-natal health care for pregnant women?
  • What role does the government of Nauru play in decisions to transfer refugees and asylum seekers overseas for medical treatment?
  • What actions does the government of Nauru take to safeguard the best interests of refugee and asylum-seeking children who are separated from their parents or other relatives during overseas medical treatment?
  • What laws and regulations govern the maintenance and disclosure of medical records of refugees and asylum seekers on Nauru?

Human Rights Watch encourages the Committee to make the following recommendations to the government of Nauru:

  • Seek to ensure that all children, including refugee and asylum-seeking children, have access to basic preventive, curative, and rehabilitative health services and health education as well as appropriate mental health care.
  • Ensure that pregnant women receive access to adequate pre- and post-natal care.
  • Ensure that the Republic of Nauru Hospital is stocked with sufficient essential medicines to meet the needs of all patients, including refugee and asylum-seeking children.
  • Where appropriate care is not available in Nauru, asylum seekers and refugees should receive timely medical attention in other countries in the region, including Australia.
  • When parents or other family members are sent abroad for medical care, every effort should be made to keep families together unless that is not in the children’s best interest. If children are not transferred abroad with their parents, they should be given sufficient notice and support to prepare them for the separation and should be allowed to maintain regular contact, preferably daily, with the transferred family member.

Access to education

Articles 28, 29, 19, 2, and 3

Children who attend local schools suffer frequent bullying and harassment by Nauruan students. As noted earlier in this submission, many asylum seeker and refugee children have reported being hit or having things thrown at them by Nauruan students, and are ignored when they complain of the bullying and harassment to their teachers. Moreover, refugee and asylum seeker children report that they are often referred to as “refugee,” rather than by their names, by teachers as well as Nauruan students.[67]

In part due to bullying and harassment, many asylum seeker and refugee children have stopped attending school, Human Rights Watch and Amnesty International found. For example, a 15-year-old girl said that she stopped going to school because Nauruan children always tried to pull off her headscarf and constantly taunted her.[68] Save the Children Australia estimates that 85 percent of refugee and asylum seeker children on Nauru are not enrolled in school.[69]

Questions and recommendations

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What steps has the government of Nauru taken to prevent and address instances of bullying and harassment in schools, including of refugee and asylum-seeking children?
  • What is the school attendance rate of children of compulsory school age?
  • What measures has the government of Nauru undertaken to increase school attendance among students of compulsory school age?

Human Rights Watch encourages the Committee to make the following recommendations to the government of Nauru:

  • Putting in place effective measures, including teacher training, to reduce bullying and harassment of asylum-seeker and refugee children.
  • Ensure that all children of compulsory school age are attending school.
  • Ensure that teachers and other students call children by their names, rather than by terms such as “refugee.”

The lack of a durable solution for refugee children

Articles 2, 22, 27, 37, and 38

Asylum seeker and refugee children are held on Nauru for an indeterminate amount of time without the possibility of integration on the island and without a clear plan for their settlement elsewhere.  When they were first sent to Nauru, refugees and asylum seekers were told by immigration authorities that they were being transferred for “processing” and would be then resettled in a third country. Most have now been living on Nauru for nearly three years with no knowledge of how much longer they will be kept on the island.[70]

Once asylum seekers are recognized as refugees, they are not eligible for permanent residency in either Nauru or Australia, and are only allowed to settle on Nauru temporarily. Thus, even those who have received positive refugee status determinations have no idea what to expect and have received no clear answers from Nauruan or Australian authorities. This uncertainty has a significant negative impact on asylum seekers and refugees’ mental and physical health.[71]

Asylum seekers and refugees have no way of leaving the island, even if they have financial means to do so and have been issued “refugee travel documents.” These papers described the nationality of the individuals as “refugee,” and refugees who have tried on their own to apply for visas to go to other countries are rejected.[72]

Furthermore, refugees who are temporarily settled on Nauru have limited opportunities for education and employment. 

The Nauruan government has failed to ensure that asylum-seeker and refugee children receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the Convention on the Rights of the Child as well as the 1951 Refugee Convention and the 1967 Refugee Protocol.[73] 

Questions and recommendations

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What is the status on Nauru of children who have been recognized as refugees? How long does this status entitle them to remain on Nauru?
  • How many children have been denied recognition as refugees? What is the process for reviews of negative denials? Who conducts those reviews?

Human Rights Watch encourages the Committee to recommend to the government of Nauru that it:

  • Directly request the government of Australia to offer to admit any person recognized as a refugee through the refugee status determination process on Nauru.
  • Seek assistance from UNHCR to find appropriate countries where refugees can be settled permanently.
  • Provide information to asylum seekers and refugees about the length of time they will be entitled to remain on Nauru.

Access to legal advice and representation

Article 37(d)

When they undergo refugee status determination on Nauru, asylum seekers are assigned a government-appointed, Australian-funded lawyer. However, asylum seekers and refugees have reported to Human Rights Watch a lack of faith in these lawyers. Furthermore, asylum seekers and refugees do not have access to free legal advice after refugee status has been determined. Nauru is therefore failing to uphold refugee and asylum-seeker children’s rights to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of their liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.[74] Under the MOU, Australia is responsible for providing lawyers for asylum seekers and refugees living in Nauru. Nauru should request that Australia provide access to legal services for matters beyond the application process.

Question and recommendation

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • Does the government of Nauru itself provide legal assistance for refugee and asylum-seeking children?

Human Rights Watch encourages the Committee to recommend that the government of Nauru:

  • Ensure that all child asylum seekers and refugees have access to free legal advice, in relation to matters outside of their application for asylum.

Secrecy and Visas

Articles 3, 13, and 17

Australia and Nauru impose strict secrecy on the processing of asylum seekers on Nauru.[75] Journalists face severe restrictions on entry, with a nonrefundable visa fee of 8,000 Australian dollars (US$6,030) and a protracted application process.[76] Nauru has granted visas to just two media outlets since January 2014.[77] Other requests have been rebuffed or met with no response. Some UN officials have been denied entry or in some cases have concluded that a visit would be impractical due to severe limitations on their access. Recently, the Nauru government refused visas to an Australian member of parliament, an Australian senator, and three Danish members of parliament.[78]

Nauru has revoked visas in several high-profile cases in recent years after the individuals concerned took positions with which senior government officials disagreed. For example, in January 2014, Nauru's magistrate, Peter Law (an Australian national), was arrested and deported while he was preparing an inquiry into the death of Justice Minister David Adeang’s wife, who burned to death outside the family home in April 2013.[79] Nauru also canceled the visa for its chief justice, Geoffrey Eames (also an Australian national), in 2015, after he ordered a stay of deportation in Law’s case.[80] Furthermore, Nauru fired its Australian police commissioner as an investigation into bribery allegations involving Nauru President Baron Waqa and Justice Minister Adeang was in progress.[81]

The severe limitation of access to Nauru of the media, as well as the revocation of visas for those who speak out against the government, is not in the best interests of children[82] and is contrary to human rights principles, as it prevents adequate independent monitoring of conditions on Nauru.

Questions and recommendations

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What is the rationale for an AU$8,000 visa fee for journalists?
  • The government of Nauru has been criticized for recently withdrawing visas of its two most senior judges and firing its police commissioner during a high-level corruption investigation. How does it respond to this criticism? Specifically, how does it respond to the charge that Nauru lacks an independent judiciary?

Human Rights Watch encourages the Committee to recommend that the government of Nauru:

  • Reduce the price of visas and take other steps to ensure that journalists can enter Nauru.
  • Ensure that UN officials, lawyers, and human rights organizations are able to enter the country to undertake unimpeded independent monitoring and reporting.

Access to social media

Articles 8, 13, 15, 16, and 17

Beginning in April 2015, the Nauruan government began blocking access to Facebook. The government claimed this was for the purposes of protecting children from sexual exploitation,[83] but the timing of the move suggests that it was done to prevent asylum seekers and refugees from expressing their opinions about conditions on the island, communicating with lawyers and human rights groups, or contacting their families abroad.[84] It is unclear what level of access asylum seeker and refugee children currently have to Facebook and other forms of social media.

Children’s rights not to be subjected to arbitrary or unlawful interference with their privacy, family, or correspondence have potentially been violated by Nauru’s blocking Facebook access.[85] Furthermore, in blocking Facebook, the Nauruan government has failed to recognize the important function performed by social media and has failed to ensure that asylum seeker and refugee children have access to information and material from a diversity of national and international sources.[86]

On May 12, 2015, new criminal laws were passed that imposed a seven-year prison sentence for publishing statements “likely to threaten national defence, public safety, public order, public morality or public health.”[87] As Amnesty International has observed, these laws failed to comply with international human rights law and standards on the right to freedom of expression and imposed excessive penalties.[88] During the year that these laws were in force, they could be used to criminalize protests by refugees and asylum seekers, children as well as adults, potentially violating their rights to freedom of expression[89] and peaceful assembly.[90]

Questions and recommendations

Human Rights Watch encourages the Committee to ask the government of Nauru:

  • What was the rationale for banning access to Facebook on Nauru?
  • What access do refugees and asylum seekers now have to Facebook and other social media?
  • How many people have been charged under section 244A of the Nauru Criminal Code? How many were convicted, and what sentences did they receive? Of those charged and convicted, how many were refugees and asylum seekers, and how many were refugee and asylum-seeking children?

 

Human Rights Watch encourages the Committee to recommend that the government of Nauru:

  • Ensure that children have access to the internet and Facebook, in order to ensure they are able to contact their families, seek news and other information, and express their opinions.
  • Amend its criminal laws to clarify that peaceful expression and assembly will not be criminalized.
 

[1] Memorandum of Understanding (MOU) Between the Republic of Nauru and the Commonwealth of Australia,

Relating to the Transfer to and Assessment of Persons in Nauru and Related Issues, signed 29 August 2012. Nauru is a “regional processing country” pursuant to section 198AB(1) of Australia’s Migration Act 1958 (Cth) (Austl.). This MOU was superseded by another MOU in 2013, which continues to apply to the present day. See Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru and Related Issues, signed 3 August 2013, http://dfat.gov.au/geo/nauru/Pages/memorandum-of-understanding-between-the-republic-of-nauru-and-the-commonwealth-of-australia-relating-to-the-transfer-to-and.aspx (accessed August 31, 2016).

[2] Migration Act 1958 (Cth) s 198AD (Austl.).

[3] Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia,

Relating to the Transfer to and Assessment of Persons in Nauru and Related Issues, signed 3 August 2013,

cl. 10.

[4] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru: Investigation on Remote Pacific Island Finds Deliberate Abuse Hidden Behind Wall of Secrecy,” joint news release, August 3, 2016, https://www.hrw.org/news/2016/08/02/australia-appalling-abuse-neglect-refugees-nauru (accessed August 31, 2016).

[5] Ibid.

[6] Paul Farrell, “Nauru Says It Will Allow Asylum Seekers Free Movement on Island at All Times,” Guardian, October 3, 2015, https://www.theguardian.com/world/2015/oct/03/nauru-says-it-will-allow-asylum-seekers-free-movement-on-island-at-all-times (accessed September 9, 2016).

[7] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[8] Ibid.

[9] See ibid.

[10] United Nations High Commissioner for Refugees (UNHCR), Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, January 26, 2007, http://www.refworld.org/docid/45f17a1a4.html (accessed September 8, 2016), para. 35. See also ibid., paras. 36-43. Australian authorities have been intimately involved in every aspect of the apprehension, detention, and transfer of children and adults to Nauru.  These asylum seekers have been intercepted and taken into custody by Australian authorities, usually in Australian territorial waters, and held on Australian territory for several days or more before transfer to Nauru by aircraft. Australia funds all costs associated with the offshore detention and processing of asylum seekers and refugees in Nauru and spent 415 million Australian dollars (US$314 million) on its offshore processing operations in the fiscal year ending on April 30, 2015, nearly $350,000 for each person held on the island in that year alone. These factors establish that Australia exercises effective control, as that term is used in international law, over refugee holding and processing on Nauru.

[11] As UNHCR observed, “the physical transfer of asylum-seekers from Australia to Nauru, as an arrangement agreed by two 1951 Refugee Convention States, does not extinguish the legal responsibility of the transferring State (Australia) for the protection of the asylum-seekers affected by the arrangements. In short, both Australia and Nauru have shared and joint responsibility to ensure that the treatment of all transferred asylum-seekers is fully compatible with their respective obligations under the 1951 Convention and other applicable international instruments.”  UNHCR, UNHCR Monitoring Visit to the Republic of Nauru, 7 to 9 October 2013para. 22, http://unhcr.org.au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20to%20Nauru%20of%207-9%20October%202013.pdf (accessed September 9, 2016).

[12] UNHCR, UNHCR Mission to the Republic of Nauru, 3-5 December 2012: Report, http://unhcr.org.au/unhcr/images/2012-12-14%20nauru%20monitoring%20report%20final.pdf#_ga=1.101697922.2042998675.1431090683 (accessed September 9, 2016); UNHCR, UNHCR Monitoring Visit to the Republic of Nauru, 7 to October 9, 2013. 

[13] Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014), https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf (accessed September 9, 2016).

[14] Philip Moss, “Review into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, Final Report” [the Moss Review], February 6, 2015, http://www.immi.gov.au/about/dept-info/_files/review-conditions-circumstances-nauru.pdf (accessed September 9, 2016).

[15] See Paul Farrell, Nick Evershed, and Helen Davidson, “The Nauru Files: Cache of 2,000 Leaked Reports Reveal Scale of Abuse of Children in Australian Offshore Detention,” Guardian, August 10, 2016, https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention (accessed September 9, 2016).

[16] See Convention on the Rights of the Child, adopted November 20, 1989, 1577 U.N.T.S. 3, art. 4. Nauru acceded to the convention on July 27, 1994.

[17] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[18] Ibid.

[24] See, for example, Australian Human Rights Commission, The Forgotten Children, p. 188.

[25] Moss Review, paras. 3.96-3.106.

[26] Ibid., paras. 3.107-3.111.

[28] See, for example, Incident Report SCA 15.0165, February 23, 2015 (a girl’s report that a man had “catched her”; asked what she meant, the girl “demonstrated by pinching herself on the bottom and pointed to her vagina”), http://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-unique-database-interactive#incident=sca150165 (accessed September 8, 2016); Incident Report SCA 15.0174, February 25, 2015 (reporting that a man in the camp tried to place a girl on his lap and has also “tried to touch her on the chest and bite her on the cheek on 2 occasions”), http://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-unique-database-interactive#incident=sca150174 (accessed September 8, 2016); Incident Report SCA 15.01731, February 24, 2015 (report that another individual “hit me and then cut me from under . . . [The person making the report] asked her if she could point (on the cut out doll we had) to the area where he ‘cut her from under’ and she pointed to the vagina area . . . .”), https://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-unique-database-interactive#incident=sca1501731 (accessed September 13, 2016).

[29] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[30] See Nicole Hasham, “‘You Are Terrorists, You Make Bombs’: Racist Taunts Help Keep Nauru Refugee Kids Out of School,” Sydney Morning Herald, July 29, 2016, http://www.smh.com.au/federal-politics/political-news/you-are-terrorists-you-make-bombs-racist-taunts-help-keep-nauru-refugee-kids-out-of-school-20160729-gqglcp.html (accessed September 9, 2016).

[36] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[37] Ibid.

[38] See “Immigration Refers 50 Cases, Nauru Police Convict Two,” PM, June 9, 2015, http://www.abc.net.au/pm/content/2015/s4251724.htm (accessed September 9, 2016).

[39] Commonwealth of Australia, Final Report, Taking responsibility: conditions and circumstances at Australia's Regional Processing Centre in Nauru, 31 August 2015, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Final_Report (accessed September 9, 2016). As noted below, Eames, an Australian national, was forced out of office after Nauruan authorities revoked his visa in January 2014. Michael Safi, “Nauru’s Australian Chief Justice Resigns After ‘Losing Faith’ in the System,” Guardian, March 12, 2014, https://www.theguardian.com/weather/2014/mar/12/naurus-australian-chief-justice-resigns-after-losing-faith-in-the-system (accessed September 9, 2016).

[40] See Child Protection and Welfare Act 2016, No. 33 of 2016 (Nauru).

[41] See generally Ministry of Home Affairs, Nauru, and United Nations Children’s Fund (UNICEF), Review of the Child Protection System in Nauru (Suva, Fiji: UNICEF Pacific, 2016).

[42] Convention on the Rights of the Child, arts. 19, 24, 28, 27, and 31.

[43] See generally Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, princs. (2)(b) and (c), 3(c) and (d).

[44] Convention on the Rights of the Child, art. 2.

[45] Ibid., art. 34.

[46] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[47] Ibid.

[48] See Farrell, Evershed, and Davidson, “The Nauru Files: Cache of 2,000 Leaked Reports Reveal Scale of Abuse of Children in Australian Offshore Detention.”

[49] See, for example, Australian Human Rights Commission, “New Report: Experts Reveal Alarming Impact of Detention on Children,” February 4, 2016, https://www.humanrights.gov.au/news/stories/new-report-experts-reveal-alarming-impact-detention-children (accessed September 9, 2016); “UNHCR Calls for Immediate Transfer of Refugees Out of Manus Island, Nauru to ‘Humane Conditions,’” ABC News, May 5, 2016, http://www.abc.net.au/news/2016-05-05/unhcr-presses-for-transfer-of-refugees-out-of-detention-centres/7385748 (accessed September 9, 2016).

[50] See Rebecca de Boer, “Background Note: Health Care for Asylum Seekers on Nauru and Manus Island,” Parliamentary Library, June 28, 2013, http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/AsylumSeekersHealthCare (accessed September 9, 2016).

[51] Paul Farrell, “IHMS, the Healthcare Giant at the Heart of Australia’s Asylum System—Explainer,” Guardian, July 20, 2015, https://www.theguardian.com/australia-news/2015/jul/21/ihms-the-healthcare-giant-at-the-heart-of-australias-asylum-system-explainer (accessed September 9, 2016).

[52] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[53] Ibid.

[54] The government of Nauru’s website identifies the minister of health (who is also the minister for sports, minister for fisheries, and head of the Department of Transport) but gives no information on health services available on Nauru. See The Government of the Republic of Nauru, http://www.naurugov.nr/government.aspx (accessed September 9, 2016). A 2005 World Health Organization global review of mental health policies and programs noted that mental health was not part of Nauru’s primary health care system and that Nauru lacked a mental health policy as well as a national mental health program. See World Health Organization, Mental Health Atlas 2005 (Geneva: WHO, 2005), pp. 332-33.

[55] Convention on the Rights of the Child, art. 24(2).

[56] Committee on the Rights of the Child, General Comment No. 15 on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health, U.N. Doc. CRC/C/GC/15 (2013), para. 39.

[57] Convention on the Rights of the Child, art. 39.

[58] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[59] Ibid.

[60] Ibid.

[61] Ibid.

[62] Convention on the Rights of the Child, art. 24.

[63] See Committee on the Rights of the Child, General Comment No. 15, paras. 25, 28. See also Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (2000), para. 12. Although Nauru has not ratified or signed the International Covenant on Economic, Social and Cultural Rights, this general comment by the Committee on Economic, Social and Cultural Rights provides useful additional guidance on states’ obligations under article 24 of the Convention on the Rights of the Child because it interprets an analogous provision of the covenant.

[64] Convention on the Rights of the Child, art. 24(4); Committee on Economic, Social and Cultural Rights, General Comment No. 14, para. 38. See also Declaration of Alma-Ata, made at the International Conference on Primary Health Care, 6-12 September 1978, para. VIII.

[65] See Convention on the Rights of the Child, arts. 24(2)(b) and (d).

[66] See ibid., arts. 5, 7, and 9.

[67] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[68] Ibid.

[69] See Hasham, “‘You Are Terrorists, You Make Bombs.’”

[70] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[71] Ibid.

[72] Ibid.

[73] Convention on the Rights of the Child, art. 22(1); Convention relating to the Status of Refugees, signed July 28, 1951, 189 U.N.T.S. 137 (acceded to by Nauru June 28, 2011); Protocol relating to the Status of Refugees, done January 31, 1967, 606 U.N.T.S. 267 (acceded to by Nauru June 28, 2011).

[74] See Convention on the Rights of the Child, art. 37(d).

[75] Human Rights Watch and Amnesty International, “Appalling Abuse, Neglect of Refugees on Nauru.”

[76] Ibid.

[77] See Amanda Meade, “Only ‘Respectful and Objective’ Media Outlets Are Welcome, Says Nauru,” Guardian, June 22, 2016, https://www.theguardian.com/world/2016/jun/22/only-respectful-and-objective-media-outlets-are-welcome-says-nauru (accessed September 9, 2016); “Exclusive Media Access for The Australian,” Media Watch, October 26, 2015, http://www.abc.net.au/mediawatch/transcripts/s4339385.htm (accessed September 9, 2016).

[78] See Michael Gordon, “Nauru Bans Greens Senator Sarah Hanson-Young from Visiting Refugees,” Sydney Morning Herald, August 24, 2016, http://www.smh.com.au/federal-politics/political-news/nauru-bans-greens-senator-sarah-hansonyoung-from-visiting-refugees-20160824-gr05oh.html (accessed September 9, 2016); Nicole Hasham, “Nauru Bans Unsympathetic Danish MPs from Detention Centre Visit,” Sydney Morning Herald, August 31, 2016, http://www.smh.com.au/federal-politics/political-news/nauru-bans-unsympathetic-danish-mps-from-detention-centre-visit-20160830-gr4y8g.html (accessed September 9, 2016); Ben Doherty, “MP Andrew Wilkie Says Nauru Visa Denial Proves Australia ‘Has Much to Hide,’” Guardian, September 6, 2016, https://www.theguardian.com/world/2016/sep/06/mp-andrew-wilkie-says-nauru-visa-denial-proves-australia-has-much-to-hide (accessed September 9, 2016).

[79] See Giff Johnson, “Nauru Must Be Held to Account for Its Human Rights Abuses,” ABC News, http://www.abc.net.au/news/2015-06-30/johnson-nauru-must-be-held-to-account/6580944 (accessed September 9, 2016).

[80] Safi, “Nauru’s Australian Chief Justice Resigns After ‘Losing Faith’ in the System.”

[81] Johnson, “Nauru Must Be Held to Account for Its Human Rights Abuses.”

[82] See Convention on the Rights of the Child, art. 3.

[83] The Government of the Republic of Nauru, “Nauru Cracks Down on Internet Pornography,” undated, http://www.naurugov.nr/government-information-office/media-release/nauru-cracks-down-on-internet-pornography.aspx (accessed September 9, 2016).

[84] Amnesty International, Annual Report 2016, Nauru, https://www.amnesty.org/en/countries/asia-and-the-pacific/nauru/report-nauru/ (accessed September 9, 2016). See also Access et al., Joint Letter to the Government of Nauru on Internet Blocking and Freedom of Expression, May 26, 2015, https://www.hrw.org/news/2015/05/26/joint-letter-government-nauru-internet-blocking-and-free-expression (accessed September 9, 2016).

[85] Convention on the Rights of the Child, art. 16(1).

[86] Ibid., art 17.

[87]  Criminal Code 1889 (Nauru), section 244A, as amended by Criminal Code (Amendment) Act, 2015, No. 13 of 2015 (Nauru), repealed May 12, 2016.

[88] Amnesty International, Annual Report 2016, Nauru.

[89] Convention on the Rights of the Child, art. 13(1).

[90] Ibid., art. 15(1).