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Recommendations

To the Malaysian Government

• Ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Develop asylum and refugee protection procedures and enact appropriate implementing legislation. These procedures should be available to all asylum seekers, regardless of nationality.
  
  
• Recognize that in light of the ongoing armed conflict and widespread human rights violations taking place in Aceh, all Acehnese in Malaysia should be treated as prima facie refugees⁶⁴ and provided with protection and assistance.
  
  
• Respect the obligation under customary international law not to refoule (forcibly return) asylum seekers and refugees to a place where they may fear persecution or where their lives and freedom may be at risk. Specifically, the Malaysian government should:
  
  
• Stop the deportation of Acehnese to Indonesia.
  
  
• Provide unhindered access to UNHCR offices and staff to any Acehnese who wishes to make an asylum claim. Ensure that all Acehnese wishing to apply for asylum are not barred from making such application by the local authorities.
  
  
• Permit UNHCR to have comprehensive access to holding centers and immigration detention facilities so that Acehnese asylum seekers and refugees may identify themselves to UNHCR to request protection.
  
  
• Create a mechanism for notifying UNHCR immediately of the detention of any Acehnese on immigration grounds.
  
  
• Ensure that no Acehnese who has made a claim for asylum or been recognized as a person of concern or refugee by UNHCR is deported to Indonesia on the ground that he or she is an illegal migrant.
  
  
• Immediately release from immigration detention all Acehnese refugees, asylum seekers, and persons who are registered with the UNHCR office in Kuala Lumpur. Specifically, release all remaining Acehnese refugees and asylum seekers who were arrested in August 2003 outside the UNHCR offices in Kuala Lumpur.
  
  
• Ensure that health, nutrition, and safety conditions in detention centers for undocumented persons and asylum seekers are sufficient so as not to act as a “push factor” to compel Acehnese to “voluntarily” return to a situation in which they are at significant risk. Specifically, ensure that conditions in detention centers conform with international and domestic standards, including the U.N. Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Detainees are entitled to sufficient food and water, prompt access to medical treatment, adequate washing facilities, and clean and adequate bedding. They must not be subject to cruel, inhuman, or degrading treatment.
  
  
• Revise existing laws so as to enable UNHCR and other agencies to provide formal humanitarian assistance to asylum seekers and refugees in Malaysia.
  
  
• Train police, immigration officials, and magistrates to recognize UNHCR documents and to refrain from arresting, detaining, and deporting asylum seekers, refugees, and persons registered with the UNHCR office.
  
  
• Take immediate steps to end widespread extortion of migrant workers, asylum seekers, and refugees by police officers and pervasive corruption in the handling of migrants and undocumented persons by police and immigration officials. Hold responsible senior immigration, police and Anti-Corruption Agency officials for abuse and extortion of migrants and undocumented persons by their subordinates. Thoroughly investigate all allegations of abuse by government officials, and take disciplinary action and bring prosecutions as appropriate against all those responsible.
  
  

To the United Nations High Commissioner for Refugees (UNHCR)

• Recognize the severity of human rights violations currently taking place in Aceh and recognize, on a prima facie basis, all Acehnese in Malaysia as refugees under UNHCR’s extended mandate⁶⁵ until conditions in Aceh significantly improve.
  
  
• Take steps to ensure that the Malaysian government does not forcibly return Acehnese asylum seekers or refugees, in particular by:
  
  
• Taking steps to ensure that the UNHCR office is accessible and a safe place for asylum seekers and refugees to make asylum claims and obtain protection from UNHCR, and assign staff to mobile registration, protection, and community services clinics.
  
  
• Monitor immigration detention centers and holding camps for migrants in Kuala Lumpur and in areas with large communities of Acehnese workers, so that asylum seekers and recognized refugees have the opportunity to identify themselves and make a claim for asylum or protection.
  
  
• Conduct better outreach and protection activities so that Acehnese communities better understand the role of UNHCR and have information they need in order to make decisions in regard to making an asylum claim.
  
  
• Seek data on details regarding the numbers of Acehnese currently being deported, insist upon access to all Acehnese facing deportation, and intervene with the government of Malaysia on their behalf.
  
  
• Organize training programs for immigration officials, police officers, and magistrates in the rights of refugees and asylum-seekers under international law.
  
  
• Continue interventions with Malaysia to respect international refugee law, with a specific focus on its relevant domestic authorities such as the police, prisons service, and immigration department.
  
  
• To the extent possible, monitor the situation of refugees who have been refouled to Indonesia.
  
  

To the Government of Indonesia

End the abuses that have forced asylum seekers to flee to Malaysia, specifically:

• Investigate fully allegations of violations of international human rights and humanitarian law. Discipline and prosecute as appropriate all officials, armed forces personnel, and police implicated in abuses, including extra-judicial executions; forced disappearances; torture and other ill-treatment; rape and sexual violence; looting; and extortion.
  
  
• Allow Indonesia’s National Commission on Human Rights to carry out investigations in Aceh free from intimidation or interference by martial law authorities.
  
  
• Take all steps necessary to ensure that Indonesian military and police forces act in full accordance with international human rights and humanitarian law. Make sure that all forces operate under rules of engagement that are consistent with international humanitarian law. Move as quickly as possible to return Aceh’s administration to accountable civilian control.
  
  
• Ensure that all commanders deployed in Aceh, at every level, have received training in the fundamental principles of humanitarian law, particularly the protection of civilians and non-combatants. All combatants should be trained and drilled in the proper treatment of civilians and non-combatants, including captured fighters.
  
  
• End the practice of using civilians in military, paramilitary, or security related functions, including the practice of compulsory night guard duty for men and boys.
  
  
• End the requirement of a special identification card for residents of Aceh so long as the government cannot ensure that such cards will not continue to result in abuses against the local population, including arbitrary arrests, ill-treatment, and unwarranted restrictions on freedom of movement.
  
  
• Respect international humanitarian law prohibitions on displacement of civilians providing that the displacement of the civilian population should occur only where the security of the civilians or imperative military reasons demand it.⁶⁶ Indonesia should also adhere to the United Nations Guiding Principles on Internal Displacement ensuring adequate facilities for those displaced.⁶⁷
  
  

To Foreign Governments

• Press Malaysia to provide protection and assistance to all asylum seekers and refugees on its soil, and to ratify the Refugee Convention.
  
  
• Intervene with the government of Malaysia to stop the deportations of Acehnese to Indonesia.
  
  
• Urge the government of Malaysia to revise its laws so as to permit UNHCR and other agencies to provide humanitarian assistance programs for asylum seekers and refugees.
  
  
• Support and strengthen UNHCR in its protection role in Malaysia, actively intervening with the government in support of UNHCR. Provide financial support to UNHCR so that it staffs provincial and mobile protection and outreach activities outside of the Kuala Lumpur office.
  
  
• Press Indonesia to open Aceh to international non-governmental organizations, journalists, and U.N. agencies, including UNHCR.
  
  
• Step up efforts to ensure that conditions are created under which Acehnese can voluntarily return to Indonesia in safety and with dignity and human rights guarantees. Insist that UNHCR be able to monitor conditions before, during, and after any such repatriations take place.
  
  
• Press Indonesia to not allow the indefinite extension of martial law.
  
  
• Ensure that military assistance to Indonesia is not used to contribute to human rights violations. Those states that have provided Indonesia with military assistance, including weapons, other equipment, and training, have a special responsibility. As such, they should impose strict conditions on the permitted use of the weapons or other military assistance, consistent with human rights and international humanitarian law standards. They also should put in place effective measures to monitor and ensure accountability for any misuse of the weapons or other assistance. Indonesia has a complementary duty to keep and offer for inspection the documentation necessary to demonstrate how it has used foreign-supplied equipment, and if necessary provide other forms of access to facilitate effective end-use monitoring.