Publications

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Annual Report 2001

Chapter 3: THE STATUS OF NEW TIBETAN REFUGEES

The definition of a refugee, as well as the main international legal tools for protecting the human rights of refugees, are the principles contained within the 1951 Convention Relating to the Status of Refugees (or Refugee Convention), and the refinements to that Convention, made in the 1967 Protocol. Article 1. of the 1951 Refugee Convention states:

…[the term refugee shall apply to any person who] …owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country of his former habitual residence [as a result of such events], is unable or, owing to such fear, is unwilling to return to it …

Everyone has the right to seek and to enjoy in other countries freedom from persecution.

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. (Article 33, Optional Protocol).

The failure of Nepal to ratify the 1951 Refugee Convention and 1967 Protocol presents a real problem for Tibetans escaping to India via Nepal. The general lack of awareness of the Convention principles, and instead the use of an informal category of protection by UNHCR to assist fleeing Tibetans, is discussed further in this chapter. Despite this, the Government of Nepal has traditionally adopted a generous policy towards Tibetans transiting through its territory to asylum in India.

In this chapter, we have used the term “asylum seeker ” to refer to those Tibetans within Tibet seeking to leave and making the journey to seek “asylum” in second or third countries. The term “refugee” refers to those Tibetans who have been granted “refugee status” by second or third countries, usually Nepal and India, by some administrative process which bestows certain rights including the Right to Residency as a refugee. “China” and “Chinese”, unless otherwise stated, refers to the policies and practice of the government of the People’s Republic of China (PRC).

The Tibetan Reception Centre based in Dharamsala, India, has estimated the arrival of around 45,000 Tibetan asylum seekers in India between the 1980 and 2001. During the year 2001 as of December 1,735 Tibetans fled Tibet across the Himalayas. This steady and continuing exodus reflects upon the situation for Tibetans living under Chinese rule.

However, compared to past annual records, 2001 has seen a considerable decrease in those fleeing occupied Tibet. The reason is not because there was less provocation to flee, but because of the increased policing and control of Tibet’s border with Nepal. The re-launch of Beijing’s “Strike Hard” Campaign and its directive to clamp down on fleeing Tibetans simultaneously with the Tibetans engaged in activities “endangering State security”, has effected the change.¹ According to a 27 June 2001 Xinhua report, the “TAR” Higher People’s Court passed a ruling that Tibet’s version of the “Strike Hard” Campaign will focus on “striking on people’s ‘endangering national security’, drug trafficking, and on those who are trying to flee Tibet without documents”.² This court ruling has already had negative impacts on Tibetans trying to flee their country.

Stepped-up patrolling this year has resulted not only in more arrests of fleeing Tibetans along the border, but also in many reports of looting, beatings and torture

Meanwhile, it is also reported that any former political prisoners who are caught attempting to escape are directly sentenced to “re-education-through-labour” and are being transferred to Trisam Labour Camp located in Toelung Dechen County, 10 km west of Lhasa. China’s Xinhua reported on 16 October 2001 that in a period of six months, “TAR” border security officials had arrested 2,500 Tibetans trying to cross the Nepal border as an initiative of the “Strike Hard” Campaign.³ According to a monk from Karze County, Sichuan, 300 arrests were made in the month of June alone. They were then transferred to Shigatse Prison, along with detainees arrested returning from Nepal and India. There is anecdotal evidence that these prisoners were then sent to work as labourers on the construction project laying rail track from Golmud to Lhasa.⁴

The decrease in 2001 figures still saw over 1,000 asylum seekers succeeding in their escape bid this year. The refugees journey for a minimum of one week on foot, traversing the highest mountains in the world in the depths of winter, experiencing hunger, exposure, injury, — frostbite — and sometimes death. They mostly seek residence in India via Nepal. They remain in danger of arrest, robbery and other ill-treatment throughout this journey, until they are formally granted asylum. If arrested at any point prior to crossing the international border and being granted asylum, escapees are subject to intensive interrogation, torture and sentenced to long-term imprisonment — often without trial.

Multiple reasons for fleeing

More than 90 percent of Tibetan asylum seekers state the desire to meet the Dalai Lama in Dharamsala as their prime motivation for flight. However, this is not the only reason; Tibetans decide to leave their homeland for a multitude of complex reasons. The decisions must be viewed in the context of China’s continued occupation of Tibet, and the resultant economic marginalisation, political repression and racial discrimination that permeates all facets of life on the plateau today.

Any Tibetan engaged in activities deemed to be “endangering state security”— the interpretation of which is left to the Chinese authorities — is arrested, detained or sentenced to varying terms of imprisonment and may be subjected to brutal torture. Activities regarded to be “endangering state security” could be anything from possessing a photo of the Dalai Lama, or political materials from exile, to pasting up leaflets and participating in demonstrations. The re-launch of the Beijing’s “Strike Hard” Campaign in April 2001 further intensified the official crackdown on Tibetans engaged in so-called  political activities.⁵

A recently-arrived refugee, Sonam Choephel from Karze County, Sichuan, is a case in point. After distributing leaflets calling for Tibet’s independence, and showing videos of the Dalai Lama, he finally managed to evade impending arrest by fleeing his hometown.⁶

Similar testimonies are reported by Dorjee Sonam and Sonam Choeda, from the same eastern province, who were forced to escape to exile because of their involvement in writing and disseminating pro-independence leaflets. When the authorities suspected monks of being involved in this act, they began checking everyone’s handwriting in the monastery. The duo, for fear of being caught, decided to flee Tibet. They stayed in Lhasa for a month attempting to procure a travel permit for which they had to pay 3,000 yuan (US$353).⁷

Increasingly, children dominate the age profile of refugees escaping into exile. In fact, the majority of escapees during 2001 are juveniles. This can be attributed to the lack of widespread and adequate education, discrimination against Tibetans in admission and the sinicised curricula. Parents overlook all the hardships and risks involved by continuing to send their children into exile to ensure they receive a quality modern education incorporating Tibetan culture, history and religious belief. ⁸

With crackdowns on monasteries and nunneries gaining severity, because of Beijings fears that monks and nuns are engaged in “splittist” activities, the clergy also form a high proportion of those fleeing Tibet. Moreover the “Patriotic Education” Campaign, and its attempts at gaining ideological control over religious institutions, has made any sort of serious religious study and practice difficult for monks and nuns. China is severely impacting on the freedom of religious belief and expression by placing ceilings and limitations on the population of religious institutes. Even monastic education is controlled by “workteams” under the Marxist so-called “Patriotic Education” Campaign...⁹

Since 1996, secular Tibetans in most areas across the “TAR”, Kham and Amdo (Qinghai), have experienced renewed curbs on their freedom of worship. One regional government official and former Communist Party member cited religious restrictions as his primary reason for escaping, complaining of “…the lack of religious freedom, people not being allowed to say mantras and not being allowed to go on pilgrimage. In addition, members of the Communist Party and their family members are not allowed to pursue religion.”¹⁰

As a distinct race under occupation, Tibetans face discrimination in all walks of life — be it economically, socially, politically and culturally. With the influx of Chinese migrants, Tibetans are being discriminated against particularly in the provision of housing, access to education and employment opportunities. In the employment sphere, most markedly, the authorities are providing preferential loans, permissions and necessary official paperwork to Chinese starting up businesses, thereby threatening the very survival of Tibetan entrepreneurs.¹¹

Hazards and hardships en route

Approximately two thirds of all refugees arrive in Nepal in the second half of the year, during the months from August to January, and particularly the latter four winter months. Some analysts attribute this timing to fewer visible border guards patrolling on the frozen passes during the winter months, but there are other reasons.¹² Many refugees believe that the icy weather favours passage through the mountains in winter; visibility is good and a thick layer of ice forms on the surface of the snow which makes it possible to walk over the otherwise treacherous paths.

Water and cooking fuel are scarce and the asylum seekers must press on at all costs. Hunger, dehydration and tiredness increase the risk of injury

Temperatures can be as low as -40 degrees, and therefore frostbite plus snow blindness are common.

Most Tibetans consume the last of their food as they traverse the mountains and survive on tsampa (roasted barley flour). Water and cooking fuel are scarce and the asylum seekers must press on at all costs. Hunger, dehydration and tiredness increase the risk of injury, for as they reach the top of a pass they begin to walk down the slippery trails or over treacherous paths like those that traverse the Nangpa-la glacier.

Dhimey, who arrived in Nepal on 12 November 2001, said the hardest part of their journey was walking on an empty stomach across snow. His party could not light a fire to brew tea for five to six long days. This forced Dhimey and his companions to eat ice, which made them very sick. Another looming fear throughout the journey was the fear of being caught by the Chinese police.¹³

Many refugees embark upon the journey with scant knowledge of the weather conditions and terrain they will have to endure, and wear inappropriate clothing and footwear. Several cases of frostbite occur each year, most often affecting juveniles. There are other dangers awaiting children. A 12-year-old girl fell into a river and no trace of her could be found.¹⁴

Depending upon their chosen escape route, asylum seekers have atleast a day-long bus journey ahead of them in Nepal, or at most several weeks more on foot. Asylum seekers face the further hazard of possible arrest at the numerous police checkpoints along the roads and towns leading to Nepal’s capital, Kathmandu. The penalties incurred if an escapee is caught by the Nepalese police can be high. Theft of any cash or valuables is a certainty; arrest and deportation back to the Chinese border police is the asylum seeker’s greatest fear.

Nepal’s position on refugees

Despite not having signed the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol, Nepal, by and large, has respected the human rights articles contained in them, permitting Tibetans asylum, freedom of movement and the right to a livelihood and other important principles. It is a generous response for a poor country. The official Tibetan population settled in Nepal according to the 1991 census is approximately 18,000¹⁵

The Constitution of the Kingdom of Nepal makes no distinction between citizens and aliens in regard to certain basic rights. As a result, Nepalese citizens and foreigners/aliens enjoy the following rights: the Right to Freedom (Article 12 (1)) which guarantees that “No person shall be deprived of his personal liberty except in accordance to law, and no law shall be made which provides for capital punishment”; the Right to Criminal Justice (Article 14); Rights against Preventive Detention (Article 15); Rights to Education and Culture (Article 18), the Right to Religion (Article 19); Rights against Exploitation (Article 20); the Right to Privacy (Article 22) and the Constitutional Remedy Right (Article 23).

The principles outlined in the 1951 Convention Relating to the Status of Refugees are not applied in the Nepalese Immigration Act and in some cases Nepalese Law contradicts the articles of the Refugee Convention. In 1991, the new democratic government in Nepal enacted revised immigration laws that are problematic for Tibetan asylum seekers. Nepal’s Immigration Act 1992, and its Implementing Rules of 1994, makes no distinction between foreigners and asylum seekers, nor does it make specific provision for refugees. Both are considered illegal immigrants if they fail to comply with Article 3 (1) of the Act, which states: “No foreigner is allowed to enter or stay in the Kingdom of Nepal without a visa.”

Further, Art. 9 (1) of the Act states: “The Director General shall expel foreigners who have committed immigration offences, with or without time limits, upon receiving reports from the immigration office. The Director General must seek the permission from His Majesty’s Government to execute such expulsion.” This article provides the legal basis for deportation of asylum seekers as “foreigners” who have broken the Nepalese Immigration Act.

The nearest that Nepal comes to supporting the principle of non-refoulement is in its Extradition Act of 1991, section 12(1) which pays lip service to the principle that political offenders are not to be extradited. This provision empowers His Majesty’s Government to permit foreigners, including refugees, to stay in Nepal until such time as determined by the government. Given the lack of specificity towards asylum seekers in the above laws, Nepal deals with refugees primarily on an administrative level.

From the above legislation it can be concluded that it is inadequate to deal with individual asylum seekers or with larger refugee movements. The government has often designed practical approaches within the provisions of the law. This has allowed the necessary flexibility to deal with refugees in a manner, which is, by and large, in line with international standards.¹⁶

Border dangers

Cases of arrest and detention, coupled with beatings and looting incidents, have been commonplace in the past for Tibetan refugees all along the Nepal border. However, recently cases of indiscriminate police firing on unarmed refugees and imprisonment with heavy sentences have emerged as a shift in policy of Nepal’s government. These serious actions are in line with heightened Chinese Embassy influence on Nepal’s government through the escalation of economic links between Beijing and Nepal.

Nepal’s former Foreign Minister, Chakra Prasad Bastola, has pointed out that, “… Nepal-China relations are always in steady growth and constantly nurtured by the common policy of good neighbourliness and commitment not to allow respective territory to be used for activities detrimental to the interest of each other”. This statement clarifies official action against Tibetan asylum seekers. The repercussions of this policy shift were first seen in November 2000 when a group of 23 asylum seekers were indiscriminately fired on with live ammunition by Nepali police in Jiri. This led to the death of Kunchok Gyatso while seven other Tibetans suffered bullet injuries.¹⁷

With increased Maoist activity across much of Nepal, and the particular vulnerability of police to ambush, the force is becoming reluctant to make such journeys to escort asylum seekers to Kathmandu

In May 2001, a 14-year-old Tibetan asylum seeker was arrested and detained in Dili Bazaar Jail in Kathmandu. Officials ordered Phurbu to pay a fine of 17,200 NC for his release.¹⁹ Following the payment of the fine, he was released in December. Although according to national law or the immigration law of Nepal, the Royal Government claims the right to detain illegal immigrants, under international human rights standards this detention is termed “arbitrary”. As the Working Group on Arbitrary Detention established by the Commission on Human Rights has determined, “arbitrary detention” might arise in cases “of deprivation of freedom when the facts giving rise to the prosecution or conviction concern the exercise of the rights and freedoms protected by the Universal Declaration of Human Rights and the Civil and Political Rights […]”.

The concerns of UNHCR

To aid Tibetan asylum seekers in coping with Nepalese Immigration Law while transiting through Nepal to India, the UNHCR has an unofficial agreement with His Majesty’s Government of Nepal. Dubbed as a “gentleman’s agreement”, this is a verbal understanding between the Department of Immigration (operating under the Home Affairs Ministry of His Majesty’s Government of Nepal) and the United Nations High Commissioner for Refugees (UNHCR), Nepal. The agreement arose in the wake of the 1989 Lhasa demonstrations and the PRC’s subsequent campaigns into the 1990s to step up political control over Tibetans.

Under this agreement, Tibetan asylum seekers arrested by the Nepalese police are to be brought to the Department of Immigration Detention Centre in Kathmandu. The UNHCR reimburses the police for any expenses in transporting the Tibetans from the point of arrest to the capital, pays them a daily subsistence allowance, and provides the police a chance to visit families and friends in the Kathmandu valley. The police submit a bill to the Department of Immigration (DOI) for all expenses incurred and the UNHCR pays the DOI.

The system has worked reasonably well until 2001. But, with increased Maoist activity across much of Nepal, and the particular vulnerability of police to ambush, the force is becoming reluctant to make such journeys to escort asylum seekers to Kathmandu. In response, the UNHCR has now offered to compensate double the number of police so these parties feel secure in escorting asylum seekers to the capital.

The Tibetan Refugee Welfare Organisation (TRWO), operating under the Kathmandu Office of Tibet (representing H.H. the Dalai Lama), manages the care of asylum seekers at the UNHCR Tibetan Refugee Reception Centre (TRRC) on the outskirts of Kathmandu. The TRRC is totally funded by, and under the auspices of, the UNHCR, which in turn is funded by the United Nations’ state donors. After a brief detention at the Department of Immigration holding centre in Kathmandu, asylum seekers are released into the care of TRWO and brought to the TRRC. Approximately half of the asylum seekers are arrested enroute in Nepal and handed over by the Kathmandu’s police to DOI, while the remainder reach the TRRC without being detained. Many have learned of the existence of the TRRC on their journey, and upon arrival in Kathmandu are directed there by local Tibetans.

Upon arrival, staff register the Tibetans and their name, age, birthplace, occupation, next of kin and other data is recorded. Political prisoners, or people who have suffered some other human rights violations, are quickly identified. Accommodation is provided with meals three times daily and they receive medical treatment and vaccinations for common diseases (TB, measles) at the TRRC clinic, with referral to hospitals or specialists (such as trauma counselling) if necessary.

UNHCR protection officers and approved interviewers meet with all asylum seekers to assess their reasons for leaving Tibet. Interpreters in U-Tsang, Amdo and Kham dialects assist with the interviewing. The interviews are not for refugee eligibility as Nepal is not a signatory to the 1951 Convention. Rather, the UNHCR interviews the asylum seekers to determine a status prior to the granting of “Refugee Status” known as “Person of Concern”. The interviews determine whether the asylum seekers are one of three categories: of concern and eligible for financial assistance; of concern, but not eligible for financial assistance; or not of concern.

A “Person of Concern” is the UNHCR’s practical and generous response to the realities of the situation for Tibetan asylum seekers entering Nepal. Such status extends UNHCR’s general protection to Tibetans and reduces the chance of further harm coming to them.

Even if Nepal ratified the 1951 Refugee Convention (as discussed in Appendix A), a proportion of the asylum seekers would not be eligible for refugee status under the specific and narrow Convention criteria (children seeking a Tibetan education, for instance). It is a fact that in many grave refugee situations that UNHCR handles around the world — and the Tibetans are no exception— the Convention principles are stretched beyond the strict legal wording to meet the exigencies of the crisis (regardless of whether a nation has ratified it or not).

Those of concern are facing violations of their human rights in Tibet. Financial assistance is not given to those making an onward journey to India. They are eligible for financial assistance only once. Those not of concern are journeying for reasons such as visiting family members or for business.

The onward journey

In addition to the UNHCR process, the Tibetan Refugee Welfare Office assesses what assistance the Tibetan Government-in-Exile will provide to the asylum seekers. Those monks wishing to join a monastery are registered. Children under 18 are recorded for admission to Tibetan Children’s Village schools, and young adults up to the age of 30 are registered for education at the Tibetan Transit School near Dharamsala. Due to limitations of space in India, nuns are not able to enter nunneries directly and generally enrol in schools first.

Buses to India leave Kathmandu weekly and the asylum seekers granted UNHCR “Person of Concern” status are registered on a list provided to the Nepalese Department of Immigration and granted an exit pass collectively. They also carry with them a daily allowance for their journey from the TRWO; a health book detailing their vaccinations and a ration card with some bio-data. They then travel the two — to three — day journey to the Tibetan Reception Centre in New Delhi in safety, and from there take the 12-hour drive to Dharamsala.

Once they have left Nepal, UNHCR’s interest in the asylum seekers ends, and responsibility is taken up by the Central Tibetan Administration of the Government-in-Exile in India. The Government of India deals bilaterally with the Tibetan Government-in-Exile on all refugee matters.

This system has worked more or less smoothly for a decade. But, given the opaque nature of the UNHCR’s “understanding” with the Home Ministry in Nepal, it is liable to failures when certain political pressures are applied — as the evidence of recent arrests and deportations illustrates.

The rise in deportations

TCHRD is now gravely concerned about the ad hoc forced deportation of asylum seekers to Chinese security personnel in Tibet and the probability that such cases may now be commonplace along the Nepal-Tibet border. Such forced deportations reflect an absence of understanding of the legal human rights of asylum seekers on the part of Nepali border officials, as well as ignorance of their role in the violation of the human rights of Tibetan asylum seekers. Yet, at the same time, the Centre acknowledges that most asylum seekers are allowed to enter Nepal by the authorities, and a workable arrangement exists between the Department of Immigration of His Majesty’s Government of Nepal and the United Nations High Commission for Refugees (UNHCR), Nepal, to allow refugees to pass through Nepal and be processed for third country resettlement — usually to India.

‘The situation is that if Tibetans coming from Tibet arrive on the border and they do not have proper papers then they are not allowed to enter Nepal.’ (Home Ministry of Nepal)

Over recent years, refoulement or forced deportation, of Tibetan refugees by Nepalese officials has been a regular occurrence along the Nepal-Tibet border. Some officials — whether familiar with their government’s arrangement with the UNHCR or not —- regard all Tibetan refugees as illegal immigrants. Even the Home Ministry of Nepal stated in December 2000, “The situation is that if Tibetans coming from Tibet arrive on the border and they do not have proper papers then they are not allowed to enter Nepal”.²⁰

Such deportations are technically illegal under international law, and contravene an undertaking given from January 1990 onwards by the Nepalese authorities to hand over asylum seekers to the UNHCR in Kathmandu. Roland Wiel, Protection Officer for the UNHCR in Kathmandu, said in an interview with TIN “As far as the UNHCR is concerned, anyone who would ask for asylum is entitled to have their asylum claim assessed. For Tibetan refugees arriving in Nepal, this effectively means that Tibetans have the right to transit through Nepal to India…”²¹

However, since 25 November 2001at least 15 asylum seekers have been handed over to border guards on the Chinese side by the Nepalese police; this figure includes several children who were being sent out of Tibet by their parents with a guide. These cases are ones where witnesses were able to pass on information; the real figure for deportations is likely to have been higher. ²² In mid-December 2001, a middle-aged man accompanied by two children was detained in the Tibet-Nepal border region near Barabasi and taken to Tatopani. Before the Tibetan Representative in Kathmandu could reach the region to rescue them the three were already deported back to Tibet.²³

The Nepalese police arrested six more Tibetan escapees in May 2001 at Barabasi according to the Director of TRRC, Kelsang Chime. The detainees were reportedly handed over to Chinese security personnel at the Dram border. The identities and the current conditions of the detainees were still unavailable as of December 2001.

The current administrative arrangements for Tibetan refugees are vague, liable to be misinterpreted, open to abuse, and have given rise to ad hoc decision-making by local officials about the fate of refugees. Tibetans who managed to flee twice and reached Kathmandu after experiencing deportation in their first attempt reported that the Nepali border guards have friendly relations with their Chinese counterparts on the other side of the border and they are earning fees for handing back Tibetan asylum seekers. TIN in this regard reported that “police on the Tibetan side of the border give Nepali officials a high fee for handing the Tibetans over to them”. ²⁴

But as long as human rights violations and discriminations continue within Tibet, and for as long as Tibet’s spiritual leader, the Dalai Lama, remains in exile, Tibetans will continue to take the terrible risks involved in leaving their homeland under Chinese occupation and fleeing to an uncertain future as refugees in an unknown land.