A FACTUAL PRESENTATION
PART II:  REPATRIATION

BOAT PEOPLE S.O.S. MAY 1996

TABLE OF CONTENTS

EXECUTIVE SUMMARY

BACKGROUND

FORMS OF PERSECUTION
        1. Imprisonment
        2. House arrest, police surveillance and curfew
        3. Ban on unauthorized contacts

UNHCR'S CLAIM

FACTS

CONCLUSIONS

ENCLOSURES:
1.      "UN says no guarantee of safety for returnees," South
China Morning Post, March 19, 1990
2. "A number of activities of reactionaries in refugee camps in
ASEAN countries,' People's Public Security Police, November 1994
Special Issue
3. "79 political suspects identified among 1,432 people
repatriated to Hai Phong," Security Police -- Hai Phong, Weekly
Publication N÷ 163, 19-26
September, 1995
4. Correspondence between UNHCR and Hong Kong's Refugee Status
Review Board
5. Correspondence between UNHCR branch offices in Hong Kong and
Vietnam
6. "SRV: Three 'Fake Holy Peoplé Arrested for Proselytizing," AFP
May 13,
1996
 

EXECUTIVE SUMMARY

For years, the Office of the United Nations High Commissioner for
Refugees (UNHCR) has steadfastly maintained that the
UNHCR-sponsored Comprehensive Plan of Action (CPA) has been
fairly and competently implemented. On the one hand, the  N.
agency insists that it has not missed a single refugee in the
screening process. On the other hand, it publicly maintains that
no repatriated returnee has been harassed, mistreated or
persecuted by Vietnamese authorities.

Many of the previous reports, listed at the end of this one,
present proofs that, due to rampant corruption and other
fundamental flaws in screening,numerous victims of severe
persecution have been wrongly denied refugee status.

This report addresses UNHCR's claim about its repatriation
program and the safety of returnees. Even with the limited
resources and the lack of access to returnees, we have uncovered
-- through direct reports by the victims, UNHCR's leaked
documents, and statements by Vietnamese officials -- evidences
squarely contradicting UNHCR's claim. These evidences show the
Communist government's policy of tracking blacklisted returnees
and arresting those suspected of subversive political and
religious inclinations. These same evidences also show that UNHCR
has systematically concealed incidents of persecution which it
has been fully aware of.

The increasing rate of forcible repatriation makes effective
monitoring even more important. One can reasonably expect that
many of those who have resisted voluntary repatriation do so
because of their well-founded fear of persecution. Instead of
relying solely on UNHCR's assertions and promises, governments
endorsing the CPA, via their consular offices in Vietnam, need to
actively protect returnees against random harassment and
mistreatment by local authorities and systematic persecution by
the central government. As for genuine refugees who are still in
first-asylum camps, they should not be forcibly repatriated.

UNHCR's institutionalized tendency to conceal failures and
mistakes at the expense of victims of persecution warrants
independent and thorough investigations by donor governments of
its performance and accountability under the CP
 
 

BACKGROUND

Under the Comprehensive Plan of Action (CPA), the international
community has tasked the Office of the United Nations High
Commissioner for Refugees (UNHCR) with the dual roles of assuring
fair screening of Vietnamese asylum seekers in first-asylum
countries and monitoring the safety of those denied refugee
status and repatriated to Vietnam. The UNHCR-sponsored screening
process was riddled with fundamental deficiencies, serious
procedural flaws, and rampant corruption. A large number of
genuine refugees have been unfairly denied refugee status and now
face forced repatriation. Among those who had returned, several
have been interrogated, mistreated or imprisoned by the Communist
government.

Despite undeniable evidences of problems and abuses in screening,
UNHCR has made sweeping claims to the contrary, maintaining that
not a single refugee had been wrongly denied refugee status. In
early 1995, when it could no longer deny hard evidences of
rampant corruption and improprieties committed by local screening
officials and several UNHCR employees, the agency switched
tactics. It conducted an internal review of the screening process
and concluded that the review confirmed, rather conveniently,
UNHCR's initial assertion. Published in January 1996, Part I of
this report presented facts that squarely contradict UNHCR's
claim about its screening program.

This Part II of the report addresses UNHCR's other sweeping
claim: not a single instance of persecution, mistreatment or
harassment against any of the 77,000 returnees. Like in
screening, UNHCR has adopted the same policy of outright denial.
Again, hard evidences exist that contradict UNHCR's claim.
 

FORMS OF PERSECUTION

According to UNHCR's Handbook on Procedures and Criteria for
Determining Refugee Status, there is no universally accepted
definition of persecution in general. However, Paragraph 51 of
the Handbook specifies that a threat to life or freedom and
serious violations of human rights, relating to the reasons
enumerated in the 1951 Convention Relating to the Status of
Refugees, always constitute persecution:

        "From Article 33 of the 1951 Convention, it may be
inferred that a threat to life or freedom on account of race,
religion, nationality, political opinion or membership of a
particular social group is always persecution. Other
serious violations of human rights -- for the same reasons --
would also constitute persecution."

The following forms of human rights abuses are of particular
relevance to repatriated Vietnamese asylum seekers.
 

1. Imprisonment

Vietnam's criminal code does not differentiate between political
and non-political crimes. In numerous instances it would
therefore be difficult to determine whether imprisonment
constitutes prosecution or persecution. For instance, political
prisoners and prisoners of conscience such as Dr. Nguyen
Dan Que, Prof. Doan Viet Hoat, the Most Ven. Thich Huyen Quang,
etc. have all been sentenced to long term imprisonment for
"criminal activities."

"The Vietnamese Government does not distinguish between political
crimes and criminal charges. Both are enumerated in its criminal
code, and it just says all these people are convicted of breaking
the law." (Statement of Dinah Pokempner, Legal Counsel for Human
Rights Watch/Asia, at the Congressional Hearing on the
Comprehensive Plan of Action for Indochinese Asylum Seekers,
chaired by the International Relations Subcommittee on
International Operations and Human Rights, July 27, 1995)

In such circumstance, the same UNHCR guidelines employed in the
evaluation of refugee claims should be used to determine, for
each imprisoned returnee, the real reasons behind the returnee's
arrest. If the reasons are covered by the 1951 Convention, the
arrest and imprisonment constitute persecution. This exercise,
however, is virtually impossible in Vietnam, especially when the
returnee has already been sentenced. So far, UNHCR and foreign
embassies have been able to secure access to only a few of the
imprisoned returnees, after their conviction. Even in these rare
cases, it would be practically impossible to obtain meaningful
information for evaluation. The imprisoned returnees would not
dare to tell the truth because they know that UNHCR and foreign
embassies cannot offer any protection against retribution by
prison officials.

The line between persecution and prosecution is even murkier in
cases of imprisonment for illegal escapes. The CPA calls on
Vietnam to clamp down on illegal departures, giving the
government a legitimate excuse to punish harshly people who
organize escapes or who make repeated escape attempts.
UNHCR monitoring officials in Vietnam have routinely dismissed
such cases as prosecution without investigating the reasons
behind the escapes. This is in direct violation of UNHCR's
Handbook and other guidelines developed specifically for the CP
These guidelines specify that imprisonment or other
forms of punishment for illegal escapes may very well be
persecution if the reasons for the illegal departures are related
to one of the five Convention reasons:

"The legislation of certain States imposes severe penalties on
nationals who depart from the country in an unlawful manner or
remain abroad without authorization. Where there is reason to
believe that a person, due to his illegal departure or
unauthorized stay abroad, is liable to such severe penalties his
recognition as a refugee will be justified if it can be shown
that his motives for leaving or remaining outside the country are
related to the reasons enumerated in Article 1 A(2) of the 1951
Convention." (Paragraph 61 of UNHCR Handbook)

"Punishment for illegal departures could amount to persecution if
it is:
(a) disproportionate;
(b) of such a grave nature that life has been made intolerable;
and
(c) if the attempted departure was related to Convention reasons
or the disproportionate nature of the punishment indicates
imputed political opinion."
(Section 5 of  "Internal Guidelines on Refugee Status
Determination (Appropriate Use of the Appeals Board)")

"Excessive punishment for illegal departure should be taken into
account in the assessment of a claim because it usually indicates
that the punished person is viewed negatively by the authorities
(due to imputed political opinion or classification in the 'bad
books' for other Convention reasons), which poses risks of future
persecution." (Article 92 of UNHCR Guidelines on the Application
of the Refugee Criteria to the Caseload of the Vietnamese Boat
People in South East AsiÕ)

Article 92 defines as "excessive" sentences exceeding one year
for illegal departures. As for boat organizers, the same article
stipulates that the same principle stated above apply if "a boat
organizer... establishes that he/she committed the offence not
for profit but for humanitarian or political reasons." As in
other parts of the world, it is not uncommon for victims of
persecution from Vietnam to organize their own escapes.

2. House arrest, police surveillance and curfew

These different degrees of police monitoring and restriction of
freedom of movement are all referred to in this report as "house
arrest." It is a practice of Vietnamese authorities to place
political suspects under around-the-clock surveillance by the
local security police and by collaborators living in the
neighborhood. The suspects are often prohibited from leaving
their district or town, and must regularly report themselves to
the local police station, where they have to submit detailed
reports of their daily activities and contacts. Some suspects are
even placed under curfew, usually from 10 p.m. to 6 Õm. These
forms of house arrest often apply to political suspects under
investigation or political prisoners on probationary release.

3. Ban on unauthorized contacts

People suspected of political activities in first-asylum camps
are also ordered to avoid all contacts with foreigners and other
suspected returnees.
If any such contact occurs, the suspect must dutifully report to
the local security polic© This form of police control almost
always accompanies house arrest.

UNHCR's claim of total absence of persecution against returnees
will be evaluated against the agency's own guidelines.

UNHCR'S CLAIM
UNHCR has persistently claimed that its monitoring officials in
Vietnam have not discovered a single instance of a returnee being
harassed, mistreated or persecuted by the government.

 "[Vietnamese returnees] are integrating into society and we have
absolutely no reports of ill-treatment, persecution or
discrimination." (Werner Blatter, UNHCR Director for Asia and
Oceania, Reuter, June 5, 1995)

"[UNHCR] monitoring teams... have never uncovered any convincing
cases of official harassment of or discrimination against any of
those returning." (UNHCR spokesperson Ruth Marshall's interview
with Reuter on May 26, 1995)

"To date, monitoring has revealed no indication that returnees
have been persecuted. The Vietnamese... authorities have upheld
their commitment to ensure that returnees are treated in a way
that assures their safety and dignity in accordance with national
and international law." (UNHCR Information Bulletin, August 1995)

FACTS AND EVIDENCES
As in screening, UNHCR has indulged itself in sweeping
statements, knowing that independent verification by a third
party would be practically impossible. However,  documentary
evidences have surfaced over the years, which not only impugn
UNHCR's claim but also reveal UNHCR's lack of credibility.
Following are the facts and evidences that critically challenge
the story that UNHCR wants the international community to
believe. (The identity of some returnees is kept confidential for
their own safetÜ)

   In March 1990, Dr. Alexander Casella, UNHCR's person-in-charge
of the repatriation program, publicly admitted his agency's
inability to protect returnees from mistreatment by the
Vietnamese Government:  "There is no guarantee we can provide to
the voluntary returnees, we cannot guarantee the safety of the
returnees to their own countries." ("UN says no guarantee of
safety for the returnees," South China Morning Post, March 19,
1990.) By its own admission, UNHCR monitors only 25% of all
voluntary returnees. Its mandate does not cover forced returnees.

b.              Official statements by Vietnamese authorities
highlight this reality. A November 1994 article by the Public
Security Police Unit of Hai Phong disclosed the government's
policy of identifying and targeting returnees suspected of
political activities in first-asylum camps. According to this
article, the Communist security police had identified groups it
deemed as subversive: New Democracy, Vietnamese veterans
associations, the Paris-based Vietnam Committee for the Defense
of Human Rights, Interfaith Front for National Restoration,
National Restoration, Serayka United Front, Vietnamese Committee
for a Free Vietnam, Youths To Serve, etc. The article concluded:

   "Many people have realized the tricks of these reactionaries
and have returned to their families and honest life in Vietnam.
However, there is a number of naive people who continue to
believe them and engage in activities against Vietnam and against
the repatriation program; some have even secretly infiltrated
back to Vietnam under the repatriation program so as to carry out
their dark conspiracies. We will always be on guard, ready to
uncover them on time so as to nip these sabotage activities in
the bud and to contribute to pushing the CPA ahead and on
schedule." ("Some Activities of Reactionaries in Refugee Camps in
ASEAN Countries," People's Public Security Police, November
1994 Special Issu© See Appendix.)

b.   Ten months later, the same Public Security Police Unit
reported the successes of its campaign: it had identified 79
political suspects among the 1,432 boat people repatriated to Hai
Phong between November 1, 1994 and June 15, 1995. Out of
approximately 716 cases (for an average of two persons per
household), 11% had been placed on its blacklist.

     "The PA 16 Bureau [for political investigation and
interrogation] has fully documented records on 79 political
suspects, [and] has arrested 3 suspects belonging to the
reactionary organization 'New Democracy.' Based on this
result, the PA 16 Bureau has implemented surveillance measures
against these suspects in a timely manner, and has initiated
legal actions against these reactionary targets, whose criminal
activities have been fully documented."
("79 Political Suspects Identified Among 1,432 People Repatriated
to Hai Phong," Security Police -- Hai Phong Weekly Publication,
N÷ 163, 19-26 September 1995. See Appendix.)

c.   Do Manh Tuan, VRD 333/89, was among the 76 placed under
house arrest. Forcibly repatriated on November 25, 1994, he was
subjected to intense interrogation for three days and then put
under police surveillance and curfew. The authorities charged
Tuan of violating Articles 72-82 of Vietnam's Criminal Codes (The
Especially Dangerous Crimes Against National Security) because of
his anti-government poems published overseas during his stay in
Hong Kong. Once a week, Tuan had to report to the
counter-intelligence bureau of Hai Phong City's security polic©
After each interrogation session, he then had to report to the
district polic© In June 1995, Tuan escaped the second time to
Hong Kong but was again forcibly repatriated in March, 1996.

d.   Leaked documents show that UNHCR has pretended ignorance of
many cases of persecuted returnees such as Tuan. As early as
1990, Boat People S.O.S. intercepted UNHCR's correspondence with
the Hong Kong Government regarding Van Tien Ka, who had been
arrested soon after his return to Vietnam on November 30, 1989.
Ka's brother, Van Thanh Dien, cited this incident in his
UNHCR-assisted appeal to Hong Kong's Refugee Status Review Board
(RSRB). Justice Francis Blackwell, RSRB Chairman, chastised UNHCR
for allowing false claims to be made, which "could be very
damaging." UNHCR's Chief of Mission Robert Van Leeuwen responded
that Dien's claims "reflect facts which had indeed been
ascertained by UNHCR." (See letters exchanged between RSRB and
UNHCR in the Appendix.)

   According to Dien's claim, his brother Ka signed up for
voluntary repatriation after he got assurance from the Vietnamese
government of no punishment. After repatriation, he was arrested
and sent to prison. According to Vietnam's account, Ka had to
complete an 18-month sentence for having organized illegal
escapes; he had served five and a half months before his
escape to Hong Kong. According to an official article in the
Vietnamese press (Bach Khoa Van Hoc, May 1991), Ka would be
released from prison in February 1992, after having served 33
months for an 18-month sentence. Meanwhile, his brother Dien, who
had escaped with Ka to Hong Kong, was recognized a refugee
by RSRB.

      When this case was reported in the Hong Kong press, Dr.
Casella, in blatant violation of UNHCR's own guidelines,
summarily refused to intervene or even to investigate the matter:
"It is universally recognized that organizers should be
prosecuted, and I see no reason why we should ask the Vietnamese
to commute his sentence." ("Vietnam jail plea a fraud -- UNHCR,"
South China Morning Post, February 26, 1990.) According to its
own guidelines, UNHCR should have assessed the reasons behind
Ka's escape, especially in light of Hong Kong's recognition of
his brother as a victim of persecution. If Ka's reasons for
organizing the escape were related to the 1951 Convention, the
33-month imprisonment would be excessive by UNHCR's standards and
must be treated as persecution.

     As a follow-up on this case, in June 1992, Boat People
S.O.S. asked Bill Fleming, Deputy Director of the Office of
International Assistance for Africa, the Americas and Asia at the
US State Department, to look into Ka's conditions during
Fleming's visit to Vietnam. Fleming reported that, according to
UNHCR's account, Ka had indeed been released from prison but had
vanished without a trac© Even Ka's mother did not know his
whereabouts. UNHCR speculated that Ka had escaped back to Hong
Kong but had no confirmation of this.

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