In addition to the UNHCR's voluntary repatriation efforts, the Hong Kong government has systematically deported boat people back to Vietnam since 1991 through its orderly return program. Such repatriation must be evaluated within the context of the weaknesses inherent in the screening procedures used to determine refugee status for the Vietnamese. As the inadequacies of this process have been discussed at length elsewhere, this report will not fully reexplore the issue here.40 A brief review of the key issues, however, is important in understanding both the concerns regarding the safety of those who have been or will be forcibly deported, and the violence and resistance which has frequently accompanied forced repatriation operations. Several aspects of the screening process have come under attack by nongovernmental organizations as well as legal experts.
Some of the key flaws of the determination procedures include inadequate interpretation services, a lack of necessary guidance for asylum seekers throughout the process, uninformed and poorly trained interviewers, the failure to provide applicants with access to their files, inadequate notification of the right to appeal, and "a general failure throughout the system to resolve credibility questions in favor of the asylum seeker, as international norms direct."41 Many have also suspected that the Hong Kong government maintained a set quota for the number of refugees it would recognize. As of June 1996, the Hong Kong government had completed screening for an estimated 60,062 people of whom 11.5 percent have been granted refugee status and 53,173 or 88.5 percent have been "screened out," or denied refugee status. Thie 11.5 percent figure is surprisingly close to the government's initial projection that no more than 10 percent of the Vietnamese boat people would be "genuine refugees."
The weaknesses of the screening procedures highlight the possibility that people with legitimate refugee claims may have been denied refugee status and are subsequently due to return to Vietnam. Human Rights Watch/Asia cannot support the repatriation of such people, as it would constitute refoulement and thus violate international guidelines which prohibit the return of genuine refugees. The Hong Kong government, however, has not been inclined to offer rescreening to many asylum seekers as it remains intent on clearing all of its camps before the handover to Chinese sovereignty. While the UNHCR has recently appeared more willing to review individual cases, it continues to exercise its mandate authority conservatively. Given the possibility that those with legitimate refugee claims may be forcibly returned to Vietnam, safe return and reintegration in Vietnam are of vital importance.
Monitoring in Vietnam
As part of its protection role, the UNHCR supervises the welfare of boat people who have returned to Vietnam. This monitoring role, which is legally rooted in the December 1988 Memorandum of Understanding between the UNHCR and Vietnam, began with the voluntary repatriation of seventy-five people from Hong Kong in March 1989. Under this agreement, the return to Vietnam of boat people from first asylum countries is guaranteed to "take place in condition of safety and dignity in conformity with national and international law."42 In addition to protecting returnees from persecution, harassment and punitive or discriminatory treatment, the Memorandum also ensured that the UNHCR would have full access to returnees.
Unlike in any other refugee situation, the UNHCR conducts individual case monitoring of Vietnamese returnees.43 A team of three UNHCR international staff monitors southern Vietnam while five international monitors cover the northern and central regions. Proficient in Vietnamese, the monitors' role is to assist in the smooth reintegration of returnees, help in the distribution of financial assistance, and investigate allegations of persecution, harassment, or mistreatment by Vietnamese authorities. The UNHCR staff have visited approximately 30 percent of the 91,525 people who have returned to Vietnam through both voluntary repatriation and the orderly return program.44 As of January 1996, the U.N. agency had visited on one or more occasions 20 percent of the more than 22,000 returnees in Hai Phong, 31 percent of the 1,301 returnees in Hanoi, and 26 percent of the over 10,000 returnees in Ho Chi Minh City.45
Criticisms of the UNHCR's monitoring program by asylum advocates are a cause of particular concern. Groups involved with the Vietnamese boat people have raised questions regarding the UNHCR's monitoring procedures, its attitude towards nongovernmental organizations, as well as its fundamental approach.46 Such agencies have told Human Rights Watch/Asia that UNHCR monitors have displayed some reluctance in cooperating with them even as they sought to provide the agency with information regarding mistreatment of returnees by Vietnamese authorities. Cases which suggest the need for more vigilant monitoring include the following.
C In September 1995, a weekly publication of the Hai Phong Security Police published an article trumpeting its success in identifying seventy-nine political suspects among the 1,432 asylum seekers returned to Hai Phong between November 1, 1994 and June 15, 1995. Among these suspects, three people were arrested for belonging to New Democracy, an anti-communist political group active in Hong Kong's detention centers.47
C After returning to Vietnam in April 1996, a former inmate of Whitehead, Section 8 was detained and interrogated at the Dong Ngac Reception Center for three days. During this period, authorities questioned him regarding the activities of and his involvement with the New Democracy movement. In a letter to friends in Hong Kong, this man writes, "Local police often come to `see' us. Living becomes relatively complicated. I hope you could understand what I mean."48
C One Vietnamese man voluntarily returned to Hai Phong in 1994 after spending approximately five years at Whitehead. Having converted to Christianity during his stay in the camp, this man began a small ministry in his hometown of Thuy Nguyen. According to informed sources, he has been repeatedly harassed by the police who have told him to abandon his religious activities or move to another town. After moving to his sister's district, however, he continued to encounter difficulties. In December 1995, for instance, he wasarrested by police for conducting a Christmas service. Police demanded a fine of 200,000 dong (about US $20) and later released the man.49
C On May 22, 1996, Bui Thi Kinh and his family were forcibly returned to Vietnam. At the Dong Ngac Reception Center, Bui informed UNHCR representatives that his family had neither household registration nor any house to go to. Although the pre-1954 residence which the UNHCR had on record for the family was no longer valid, they were nonetheless sent back to Hai Phong where they were forced to stay in a "reception house." The Buis have moved from one place to another after repeatedly being harassed and forced out of various reception houses by local cadres.50
Another case, involving a former sergeant of the Army of the Republic of Vietnam (ARVN), illustrates the fragility of protections that are presently afforded to returnees.51 This ex-soldier had served over fourteen years of re-education before fleeing the country. He was arrested by Vietnamese authorities in 1990 for "illegal departure" during an attempted escape by sea. Sentenced to four years, the man was released on medical grounds after serving two months of his sentence. He escaped by boat to Hong Kong with his wife and three children in 1991 after ignoring four notices to return to prison from his medical furlough. After being forcibly repatriated on February 7, 1996, he was arrested at the Dong Ngac Transit Center and later incarcerated at Hoa Son Prison, Quang Nam, Da Nang. This man was apparently arrested for escaping from his 1990 prison sentence imposed for his attempt to escape Vietnam. The Vietnamese government has promised that no returnees will face prosecution for having illegally left the country.52 Thus, while pardoned for having successfully escaped to Hong Kong in his second attempt, this man is now imprisoned for fleeing incarceration for a failed escape attempt in 1990. This case highlights the fine line which often divides cases of those who encounter problems with authorities upon their return to Vietnam, and those who are allowed to reintegrate with little or no difficulty. The UNHCR maintains that it has been in contact with members of this man's family and are continuing to monitor the case.
In addition to arrest, Vietnamese returnees face the risk of other forms of mistreatment by local authorities. Many have found it difficult to obtain household registrations, some have been ordered not to have contact with foreigners, and still others have been instructed to report regularly to the local police and submit accounts of their daily activities. Reports indicate that returnees have also been subjected to interrogations by Vietnamese authorities looking for information regarding anti-government activities among asylum seekers. In a July 1995 letter, one Hong Kong returnee speaks of this practice:
I just came back from the provincial security police station. The authorities requested that I report all activities of political organizations in the detention center in Hong Kong. Of course, they preface with a warning that my future would depend on how truthful my report was. At the end of the session, they told me that they would need my cooperation many more times.53
Such accounts raise serious concerns regarding the safety and freedom of both those who have already returned to Vietnam and those who await repatriation.
According to a UNHCR representative in Hong Kong, the agency plans to continue its monitoring activities in Vietnam for at least the next two years.54 The UNHCR should be commended both for its plans to bolster these activities and for recently increasing its international staff in the northern part of Vietnam. It is important to point out, however, that the Vietnamese government has a history of stigmatizing and blacklisting families over generations for political and religious expression as well as for class affiliations. If repatriation is to have the confidence of both the Vietnamese returnees and the international community, the concerns exemplified in the above cases must be investigated, resolved and monitored over the long term.
Excessive Violence in Forced Repatriation
The weaknesses of the screening procedures have also fueled a determination on the part of many asylum seekers to resist repatriation at all costs. Coupled with the government's goal of clearing all the Vietnamese from Hong Kong before July 1, this has led to the use of excessive force and violence during deportation operations on the part of both government security forces and Vietnamese who resist them.55
As deportation of the Vietnamese accelerates in the months ahead, the Hong Kong government will be moving large populations of boat people between its various detention facilities. Such transfers have in the past been accompanied by excessive force and violence on the part of both government security forces and Vietnamese who resist them.
One of the most violent clashes occurred on April 7, 1994 as 1,500 Vietnamese from Section 7 at Whitehead were being transferred to High Island and Chi Ma Wan Upper Detention Centers. During this operation, a large contingent of CSD and police officers56 clashed with Vietnamese inmates in what amounted to a five-and-a-half-hour raid of confusion and assault. Some asylum seekers sought to protest the transfer through passive resistance. Shouting slogans such as "protest against forced repatriation," the Vietnamese tried to assemble together in seated rows linked together at the arms. One inmate set fire to himself, and four others put their heads through nooses threatening to hang themselves.57 Riot police responded with mace, tear gas and assault. Following the incident, the Hong Kong government commissioned an inquiry by two justices of the peace, and suspended its orderly repatriation program for approximately six months. The justices of the peace determined that 510 rounds of tear gas were fired with 333 confirmed Vietnamese casualties including twenty-four first-degree burns, 177 second-degree burns and thirty-two third-degree burns.58 Beyond charging three CSD officers with assault, the government has undertaken no remedial measures to render the use of tear gas in the camps more safe and humane. Instead, it has used increasingly more rounds of tear gas in its operations.
During a transfer from Whitehead to High Island on May 20, 1995, for instance, government security forces fired 3,250 rounds of tear gas, more than six times the amount used in the April 7, 1994 raid, over a period of approximately eight hours.59 Two thousand two hundred and forty-eight CSD and police officers, outfitted in riot gear and armed with plastic and rattan shields, truncheons, tear gas launchers and gas masks, were deployed to move 1,300 inmates from Section 1 in preparation of forced repatriation.60 At the beginning of the operation, some of the inmates carried banners protesting their removal. After initially trying to barricade themselves against the government's security forces, the asylum seekers were later supported by neighboring sections which hurled homemade spears and projectiles at the officers.61 The Hong Kong government later reported that approximately 200 people had received treatment for injuries after the operation, including 127 police, forty-one CSD officers, and twenty-seven asylum seekers.62 Among the seventy-nine Vietnamese who later sought treatment was a "sixty-five-year-old woman who was sprayed with mace, kicked in the ribs and struck by a truncheon, and a baby who had fainted from the tear gas and was accidentally scalded when an inexperienced officer tried to revive her under what turned out to be a hot water tap."63 Despite the fact that authorities used more than six times the amount of tear gas of the April 1994 raid, no investigation was ever conducted of this incident.
Such incidents continued to occur. Approximately one year after the May 1995 clash, violence erupted again at Whitehead Detention Center on May 10, 1996. Twenty-four hours before an expected transfer of more than 1,100 asylum seekers from Whitehead to High Island in preparation for deportation to Vietnam, inmates from Sections 3, 4, 5, and 6 staged a peaceful protest against repatriation. A riot exploded hours later when hundreds of inmates from Section 3 broke through the camp fence and set fire to twenty-six buildings and dozens of parked cars. Fifteen CSD officers were taken hostage for three and a half hours and later released unharmed. In containing the incident, which resulted in forty-six casualties including twenty-two CSD officers, sixteen police, five firemen and three Vietnamese, security forces again employed large amounts of tear gas, using over 2,000 canisters.64 While there is no question that tear gas was an appropriate form of crowd control under the circumstances, eyewitnesses reported that the tear gas used to contain the incident was fired almost indiscriminately and there were no "safe" areas to which children and others who played no part in the riot could escape.
Established as a result of the independent inquiry into the events of the April 4, 1994 incident, a group of independent monitors composed of nongovernmental organizations and justices of the peace supervise every transfer and repatriation operation. However, some members of the independent monitoring body have complained that their work has at times been restricted by government authorities who have displayed an uncooperative attitude with the group. In the May 10 riot, for instance, the monitors were called to the scene nearly seven hours after the violence had erupted. In response to criticisms regarding this delay, the government responded that the monitoring group is only responsible for the supervision of actual transfer operations, and although inspired by an anticipated repatriation, the riot was a "law and order situation" that did not call for the presence of the monitors. Following meetings withthe nongovernmental organizations involved in the monitoring work, the government has since changed this position and has agreed to notify the monitors at the outbreak of such incidents in the future.
40 See Asia Watch, "Indefinite Detention and Mandatory Repatriation"; Lawyers Committee for Human Rights, Inhumane Deterrence; Janelle M. Diller, In Search of Asylum.
41 Asia Watch, "Refugees at Risk."
42 Memorandum of Understanding between the Socialist Republic of Vietnam and the United Nations High Commissioner for Refugees (Geneva: United Nations, 1988).
43 United States General Accounting Office, Vietnamese Asylum Seekers (GAO/NSIAD-97-19).
44 At the end of July 1996, 85,994 people had voluntarily returned to Vietnam and 5,531 had been returned through forced repatriation from Hong Kong as well as the other countries participating in the CPA.
45 Human Rights Watch/Asia telephone interview with UNHCR representative, Hong Kong, August 21, 1996.
46 Human Rights Watch/Asia interview with representatives of nongovernmental agencies, Hong Kong, July 18, 1996 and August 19, 1996.
47 "Seventy-nine Political Suspects Identified Among 1,432 People Repatriated to Hai Phong," Hai Phong Weekly Publication, No. 163, September 19-26, 1995.
48 Letter from returnee, Vietnam, June 30, 1996.
49 Human Rights Watch/Asia interview with representative of the Vietnamese Evangelical Church, Hong Kong, September 25, 1996.
50 Letter from Mr. Bui Thi Kinh, Hai Phong, May 23, 1996.
51 Human Rights Watch/Asia interview with representative of Legal Assistance for Vietnamese Asylum Seekers (LAVAS), Hong Kong, August 19, 1996.
52 Memorandum of Understanding, para. 3a.
53 Letter from a returnee to a friend in Hong Kong, July 8, 1995 as cited in Boat People S.O.S, "UNHCR's Failures...," p. 11.
54 Human Rights Watch/Asia telephone interview with UNHCR representative, Hong Kong, January 24, 1997.
55 The history of violent confrontations between Vietnamese inmates and Hong Kong CSD/Police forces dates back to July 19, 1988 with an incident a Heiling Chau Detention Center.
56 The transfer was a CSD operation aided by police forces. The total contingent numbered 1,349 officers (587 CSD and 762 Police). According to the Justice of the Peace's Report, only about 367 (approximately 182 CSD and 185 police) were involved in the Section 7 operation.
57 Report of the Justices of the Peace on the Inquiry into the Events Surrounding the Removal of Vietnamese Migrants from the Whitehead Detention Center on April 7, 1994, (Hong Kong, June 10, 1994), Para 3.38 and 3.40(b).
59 Refugee Concern Hong Kong, Report into the Events of 20th May 1995 at the Whitehead Detention Centre (Hong Kong: Refugee Concern, 1995).
61 Human Rights Watch, World Report 1996, p. 150.
62 Refugee Concern Hong Kong, Report into the Events of 20th May 1995.
63 Human Rights Watch, World Report 1996.
64 According to Independent Monitors, empty tear gas canisters revealed that some of the tear gas used were past their expiry date.