Japan's Refugee Policy Exposed
At the Japanese consulate in Shenyang, China, guards in Chinese military attire dragged away asylum seekers from the Democratic People's Republic of Korea (North Korea). This shocking scene was broadcast throughout the world. There has been mounting criticism of the statement by Mr. ANAMI, Japan's ambassador to China, that the asylum seekers should be "turned away," and against the actions of the vice consul who happened to be present. The issue has highlighted the fact that Japan's overseas diplomatic representatives are legally unprepared to handle an incursion of people seeking protection, and Prime Minister Koizumi Jun'ichiro has suggested that the system be reconsidered.
Yet the actions of those involved are precisely an outcome of Japan's refugee policy, which is based on the principle that "we may send money out, but we will not let people in." Ever since Japan signed the International Convention on Refugees twenty-one years ago due to foreign pressure, it has managed through skillful use of hon'ne (true sentiment) and tatemae (outward stance) to avoid confronting the refugee problem.
One bit of proof: at an international conference on aid for the reconstruction of Afghanistan, Japan made appeals for great outlays of funds, while at home it continued to detain Afghans who had come to Japan seeking protection. Furthermore, due to American demands (as one might expect), a special category was established for refugees from Indochina and ten thousand people were admitted. However, asylum seekers of different nationalities have been strenuously excluded. This is illustrated by the case of Chinese democracy activists at the time of the Tiananmen incident. Out of consideration for bilateral relations, they were not recognized as refugees but merely given special permission to stay in Japan. The use of this approach, which leaves asylum seekers in a "gray zone", continues to this day.
Precisely because the world has ushered in the
'century of human rights', the Japanese government's double standards on refugees are being exposed. I would like to report on issues that became apparent while covering events in Japan and Afghanistan.
It was early on the morning of 3 October last year. At a deposit site for used car parts in Sakura, Chiba prefecture, dozens of investigators wearing bulletproof vests appeared. Six Afghans were discovered disassembling and exporting car parts in a shipping container which doubled as their office and living space.
Similar raids were taking place simultaneously in Tokyo and
Saitama. A total of nine Afghans were taken into custody by immigration officials on suspicion of violating immigration control and refugee status laws (illegal entry and illegal overstay). It was about three weeks after 9/11.
Some of the targets of investigation had the same personal names and surnames as
members of the Taliban regime. Others found the money in their bank
accounts frozen. There is thus a strong suspicion that the operation was a product of "anti-terrorism measures".
Among the nine was a young man whom I had interviewed a few days
earlier. "My parents and siblings were murdered by the Taliban. I escaped
alone. It would be good if the Taliban were removed, but I can't bear the air-raids on my country," he had said, with a sad expression in his eyes. I could not understand why he had to be prosecuted.
It was soon realized that all nine people were applicants for
refugee status on the grounds of oppression by the Taliban. Eight were
members of the Hazara ethnic minority. The Hazara are an ethnic group of Mongol ancestry, and also belong to the minority Shi'a branch of Islam.
Even prior to the Taliban rule, they had been objects of persecution and
discrimination. All of the applicants claimed that their families had
been killed and that they themselves had been tortured.
Refugees who cannot receive official passports and visas from their own
governments due to persecution have no choice but to immigrate illegally.
The United Nations High Commissioner for Refugees (UNHCR) has requested
that, as a rule, governments avoid detaining asylum seekers during the time
it takes to process their applications for refugee status, no matter whether the
applicants have entered the country illegally. Over the past several years,
Japan has avoided detaining such applicants, but in this case, it immediately ordered that the applicants be taken into custody. All nine people were interned at the Detention Center of the Tokyo Immigration Bureau's Second Municipal Office.
The nine Afghans sought release from custody by appealing to the
Tokyo District Court. Due to administrative problems, four were assigned to
the Second Civil Division while the remaining five went to the Third Civil
Division. On November 5th, Chief Judge ICHIMURA Akinori of the Second Civil
Division rejected the suit initiated by the group of four, stating,
"We cannot deny that this is a case of systematic illegal immigration. When
circumstances make it unclear whether people qualify as refugees, detaining them cannot be said to be in direct contravention of the law". However,
on the 6th, the very next day, Chief Judge FUJIYAMA Masayuki of the Third
Civil Division found in favor of the group of five, ruling that "detaining
potential refugees simply on suspicion of illegal immigration contravenes the Convention on Refugees". Furthermore, he fiercely criticized the Justice Ministry's handling of the matter: "Regarding execution of the law, this is equivalent to ignoring the existence of a higher jurisdiction, the Convention on Refugees. It is in contravention of international order and exerts severely negative effects on public welfare."
Although the "Fujiyama decision" was in the spirit of the Convention on Refugees, the Justice Ministry refused to accept it, and immediately appealed to the Tokyo High Court. At the same time, on the 9th, the five Afghans were temporarily released in accordance with the District Court's decision. During a press
conference, the five spoke of their experiences of persecution. "We would
like to be permitted to stay in Japan at least until our country is at
peace," they said.
The group of five also paid a visit to the National Diet. They met with
Diet Member AISAWA Ichiro (LDP), who is head of the Diet members'
UNHCR association. Staring at torture scars on the arms of the asylum
seekers, he expressed his feelings as follows: "now I understand how hard it is, in peaceful Japan, to imagine the difficult circumstances in Afghanistan. Because we are signatories to the Convention on Refugees, our judgments must be based on the spirit of the Convention. I too want to make concerted efforts to take up the refugee problem within this country." At a meeting of the Civil Policy Advisory Committee of Democratic Party Diet members, statements were made to the effect that "nowhere else has such a shameful approach to the issue as this country".
Yet the Justice Ministry's attitude was firm. On November 26th,
Minister of Justice MORIYAMA Mayumi denied all nine Afghans' applications for refugee status. The notice delivered to the asylum seekers contained only four
lines of explanation: "There is no concrete proof of persecution."
Then two nights later the Justice Ministry committed an unprecedented
outrage. To this point, the precise reasons for declining refugee status
were not explained at all even to the applicants themselves, supposedly to preserve their privacy. Yet now, the Justice Ministry suddenly called a press
conference at the press club where they announced in minute detail the
reasons for rejecting the nine Afghans' petitions.
"Four of them have Japanese bank accounts, with totals climbing as high
as one million to one hundred million yen." "They have come to Japan a
number of times." TERAWAKI Kazumine, director of general affairs at the
time, though he did not state their names, released private information on
their bank accounts, the structure of their families etc. He claimed
that all of them are "illegal immigrants who came for employment purposes as part of an organized scheme."
At the Ministry of Justice's Immigration Bureau, a document called
"Regulations for Processing Refugee Status Matters" includes the following
caution concerning questioning: "Convey the fact that the secrecy of
information gathered through questioning will be guarded. Conduct
questioning after urging the respondent to testify without withholding any
pertinent information." Director Terawaki explained his reasons for holding
a press conference in violation of the regulations as follows: "The applicants
themselves have been appearing in and making statements to the media." However, only the five asylum seekers who had been released had appeared in the media.
The "one hundred million yen" announcement had a major effect. Moves in the National Diet to take up the issue were dampened and mass media reports were
toned down. Yet there were many problems with the contents of the announcement. The "one hundred million yen" had been deposited in order for the company where the Afghan worked to purchase used car parts in Japan. It was not income. Moreover, it was stated of one person in the group that he had "family living in Kabul". But the person in question had lost contact with his family for some time. "If the Immigration Bureau has located my family, I'd like to be told about it," he said. There were also people who had requested that statements in their record of examination be corrected, but the statements were released to the public before the corrections had been made.
On December 18th, the "Fujiyama decision" was erased by the Tokyo High
Court. The Immigration Bureau issued to the group of five a notice of
forcible deportation to Afghanistan. They were sent to the Eastern Japan
Immigration Center (Ushiku City, Ibaragi Prefecture) with no upper
limits to their period of detention.
Policies of Exclusion Preceded 9/11
Among the countries that signed the International Convention on Refugees,
Afghanistan is one of the countries with the highest percentages in the
world of recognized refugees. Australia, like Japan, has received criticism
from international society for detaining refugees and denying them entry,
but according to the UNHCR, even Australia had a very high rate of
granting refugee status: 93% in the year 2000. Canada (89%), the United States (67%) and Switzerland (57%) also had high percentages.
In contrast, over the course of last year in Japan there were
seventy-eight new applicants, but only three people were approved: a meager
The policy of excluding Afghans began before the 9/11 terror attacks.
Around the beginning of 2001, Taliban persecution against Hazara intensified dramatically, yet the Japanese government severely restricted the
issuance of visas and travel documents to Afghans: from 584 in 2000, the number dropped to 24 in the first ten months of 2001. This was a "beachhead defense" tactic to curtail the number of people who might come to Japan on business visas, and then apply for refugee status during their stay on the grounds that they had a fear of persecution.
The Ministry of Foreign Affairs explained: "We made the screening more
stringent in order to prevent illegal overstay, and this is not limited to
Afghanistan." However, the number of new Afghan arrivals in Japan over the three years up to 2000 totaled about 600 people per year, whereas from January through August 2001 the number decreased sharply to 51. In comparison, the number of new arrivals from Afghanistan's neighbors Iran and Pakistan, and from North Korea (which, like Afghanistan at that time, did not have diplomatic relations with Japan), did not change significantly.
The Justice Ministry gave the following reasons why the number of
refugees admitted to Japan is exceedingly low: "There are few applicants to begin
with because of the fact that, geographically, we are an island nation,
and because we have weak historical ties with countries of origin of
refugees. The rate at which we grant refugee status is in no way
inferior to that of Western nations." Yet the data cited above clearly
reveal that the government is adopting policies to prevent an increase in the number of applicants.
From about the time when the policy to restrict visas was adopted in
spring last year, a steady stream of Afghans have sought the assistance of brokers to escape to third countries and then come to Japan, sometimes on false passports. According to the terms of the Law on the Recognition of Refugee Status, it is possible for people who may qualify as refugees to apply for entry and residence under the "temporary protection" system when they arrive in Japan, even if they do not fulfill the normal criteria for entry. But even if asylum seekers request protection at the airport, they are immediately taken into custody at an Immigration Bureau facility. As a result, at the end of last year, the number of Afghans detained in Tokyo and Osaka Immigration Bureau facilities
was about 30, including the nine people mentioned earlier. Almost all of
detainees were Hazara.
After the collapse of the Taliban regime, photos of women removing
the burka spread throughout the world. A sense that peace had come to
Afghanistan filled the air. Yet public peace and order deteriorated, and deporting the Afghans was, realistically speaking, impossible.
Their detainment in spite of these circumstances is, for all practical purposes, confinement with no prospect of release. There have been repeated instances of hunger strikes - leaving people so weak that they can hardly walk - of attempted suicide or self-harm, and of physical and mental illness.
Their situation is terrible. One young man, whose father and elder
brother disappeared after being taken away by the Taliban when he was
nineteen, cut himself in more than ten places all over his body with hair-trimming shears, and tried to hang himself with his pajamas. "Every day I
was made to take over fifteen kinds of medication, yet my whole body
hurt. I was so sad I wanted to kill myself," the young man told the
reporter. "I was persecuted in Afghanistan. I fled to Pakistan and was
persecuted there, too. Now in Japan, where I thought I would be helped, I
have been thrown into custody. In the whole world there is no place for me to live." "Under the Taliban you are killed only once. Here I am killed every
day." The Afghans who had attempted suicide were unanimously frank
about their despair.
In February, the UNHCR Regional Office for Japan and the Republic of Korea made clear its deep concern about the refugee situation: "Until they are able to return home to safety, they should be released under specified conditions. Long-term confinement only increases their suffering." Amnesty International also moved to lodge an urgent protest.
Then in March a remarkable change occurred in the stance of the Ministry of
Justice. Afghans held at the Eastern Japan Immigration Bureau Center were
temporarily released one and two at a time. By April 26th, all twenty-three
had been let free. The Ministry denied that this was a policy shift,
stating instead that it was "the result of an overall evaluation of their individual circumstances." However, it is easy to surmise that this was a political decision.
Persecution in Kabul
The Ministry of Justice justifies its denials of refugee status with statements such as "no one would be persecuted simply for being Hazara", and "their testimonies are not credible." In March I entered the capital, Kabul, to
determine whether these statements were credible.
What struck me was the ubiquitous presence of portraits of the late General
Massoud (of Tajik lineage). This man, who was presented in Japan as a hero, was responsible for wholesale attacks on Hazara villages which cost many lives.
His portrait is a sign that Tajik forces were the first to enter Kabul after
the retreat of the Taliban.
M. J. applied for refugee status at Narita Airport in July last year
and was promptly detained for eight straight months. He was a commanding officer of the Shi'a organization "HARHKAT-E-ISLAMI (Islamic movement)", which had a role in cabinet under the interim administration. The Taliban persecutions particularly targeted members of the elite, those with political connections, and young men who might serve in the military. M. J. had been involved in anti-government activities since his teens. He had been repeatedly tortured and imprisoned. His elder brother, who was also a commanding officer, was killed. After M. J. withdrew from the front line, he continued to be active in his party and to criticize the Taliban while running a trading company in the United Arab Emirates. This came to the attention of the Taliban, and in June last year his family were taken away. Their whereabouts is unknown.
M. J. provided numerous pieces of evidence concerning his past, including
videos shot by the media when he was a senior official, and a message from
party executives saying, "The Taliban are looking for you. Escape!"
Despite all of this, however, he was denied refugee status. The reason given was that "there is no proof that he is in danger of persecution." At the hearing on
his request for a stay of deportation, the Justice Ministry asserted that
because M. J. had come to Japan on business previously, he was "pretending to be a refugee while in fact pursuing business" and had come to Japan "in search
I visited the headquarters of his party in Kabul. When I told party leaders
that M. J. was being kept in custody, the party executives unanimously
expressed their anger at the Japanese government.
"M. J.'s home was blasted a number of times by the Taliban," said Mr. Ahmady, the party's second-in-command, in heated tones. "We still
don't know where his family is. The United Arab Emirates supports the
Taliban. Because he was in danger there, he sought protection in Japan.
Why has the Japanese government detained him? They're no different from the
Taliban." The party officer in charge of intelligence operations
testified that "We received reports from our spies that the Taliban
were searching for him." The Immigration Bureau issued M. J.'s deportation
order in August of last year, before the 9/11 terrorist attacks. What would
have happened to him if he had been deported then?
"I, too, was arrested by the Taliban seven times, and escaped only by paying bribes," said Mr. Mohammad Yahya, the officer in charge of security. "Hazara have been
persecuted and killed for being of Mongol descent. Japanese are also a Mongol people, so why have they not done anything to help?" he continued. I had no words in response.
They were unarmed. The Hazara forces had surrendered their weapons in accordance with the interim government's command to "hand in the guns". In contrast, Tajik forces strutted through the streets with guns on their shoulders. "We have no material aid from the government, and NGOs don't come here. Interpreters and guides hate the Hazara, so they do not bring people to see us. This is the first time a reporter has visited us," said the chief official. He added, "We can't guarantee that M. J. will be safe if he is deported. A war might start again at any moment."
S. was detained at the airport after the 9/11 terrorist attacks.
His brother-in-law was working at the French embassy in Kabul. When I
conveyed to the brother-in-law that S. was in Japan, his voice became ebullient: "He was an elementary school teacher, so he had a measure of social standing. That is why he was persecuted. He fled to Pakistan where he got separated from his wife, my younger sister, who was pregnant. She returned to Kabul, and lost all hope, thinking he must have been captured by the Taliban. Oh, what a relief!" S.'s wife and her infant are being cared for by their family, he
said, and he added hopefully, "the Japanese government must give him refugee status!" I did not tell him S. was ailing mentally and physically in
I also met with the family of Mr. G. S., who was declined refugee status
for lack of proof, though he did receive special permission to stay in
Japan. The entrance to the used car parts shop he managed was blocked off by a
shipping container. "This was how the Taliban obstructed business," the family
explained. The warehouse was padlocked, too. G. S.'s nephew said, "he
provided large sums of financial support to the Islamic Unification Party and
to the Islamic movement. He gave them gasoline for free. The Taliban found out about this and they were after his life. In order to discover his whereabouts
they tortured and ended up killing his older brother." The daughter of the
murdered elder brother was taken in by the family and was living with them.
She held my hand firmly and in silence, and did not let go until it was time for me to leave.
Now Is the Time for Legal Change
In Japan, the courts continue to take a strict stance against applicants
for refugee status. Over the twenty years from when Japan joined the
International Convention on Refugees up until last year, I am aware of only
one case in which the plaintiff won an appeal to reconsider a denial of refugee status.
But starting from this year, a change has been in the air.
On March 8th, the Second Civil Division of the Tokyo District Court ruled that a Kurdish man of Turkish citizenship, who had appealed against denial of refugee status, was in fact a refugee. To this point, Japan had not
recognized a single Kurdish person of Turkish citizenship as a refugee. It
is significant that this high hurdle was lowered by Judge Ichimura, the man
who would not permit the release of Afghan asylum seekers.
Shortly before that, at the end of February, the Ministry of Justice announced its decision to reverse its refusal of refugee status in the case of a man from Myanmar, who had appealed to the Third Civil Division of the Tokyo District Court. Such an event was previously unheard of. The Immigration Bureau, which had detained the man for eleven full months on the premise of deportation, promptly granted him refugee status after this announcement. The Justice Ministry explained that, "The original judgment against refugee status was not mistaken, but during questioning in court, the fact that he was a refugee became apparent." This trial is a development that raises questions about the very system by which refugee status is determined in Japan, and it is easy to guess that that the settlement was designed to avoid a defeat in court.
Senior Protection Officer Diego Rosero of the UNHCR Japan-Korea Regional Office states, "the number of refugees which Japan admits is way too low. To begin with, how tolerant can immigration officials become towards asylum seekers who might enter the country illegally? The management of the movement of people in and out of the country and decisions on the recognition of refugee status should be handled by separate sections, and Japan should make
efforts to increase the number of applicants." Refugees don't come to
countries where recognition is difficult.
Asylum seekers who arrive barely clinging to life do not leave their
home countries with abundant evidence of their status. Some suffer from post-traumatic stress disorder (PTSD) as a result of persecution. Some have memory disorders. Thus it is not unusual to find people incapable of giving detailed, consistent testimony. For these reasons, the task of determining refugee status is fraught with various difficulties. Countries in North America and Europe have established independent investigation facilities and specialized information centers to assess "fear of persecution". Australia also uses dialect as a way of determining place of origin and ethnic group. In some countries, reasons for declining refugee status are written up in a long report which is given to the applicant.
In contrast, Japan hastily threw together a set of legal measures when it joined the International Convention on Refugees. As a result, even today prosecution and the protection of human rights fall under the jurisdiction of the same governmental body, the Immigration Bureau. Primary processing and appeals are both determined by the Minister for Justice. First rulings are almost never overridden. The responsibility to explain denials of refugee status decisions is not fulfilled on the grounds that, "applicants themselves know whether or not they are refugees. There is no need to explain every detail." The Ministry of Justice's lack of understanding when it comes to persecution is revealed by the fact that there have been cases where records of interview were prepared using Afghan interpreters from a rival ethnic background or
religious group to the applicant's.
Within the Ministry of Justice, the refugee affairs section is considered a "special section" where no one wants to work. In the entire country there are forty-two officers assigned to examining applications for refugee status, of whom only seven are specialists. Even though the number of applications is increasing rapidly, over the past five years the number of officials has been increased by just one. Since the level of specialist knowledge is low, the burden of proof is left to the applicant. This system itself vividly illustrates the regressive attitude of the government to the refugee problem.
In response to the Afghan detainees issue, lawyers, citizens' groups, and Diet representatives involved in problems concerning refugees and immigrants are starting to press for legal reform. The focal point is how to bring objectivity and specialist knowledge to the Ministry of Justice's self-serving refugee review system. To that end, it is necessary to change the very mentality of Japan's diplomatic and consular staff who close their doors to asylum seekers. It is indispensable to establish a system whereby "fear of persecution" can adequately be determined.
Policy, not "Face-Saving"
In the Shenyang incident, which was closely observed by international
society, government sources uniformly repeated that "there is of course a need for humanitarian considerations." Yet, in the end, one cannot help
feeling that this is just a statement designed for foreign consumption. Even now, in refugee cases within Japan itself, the Ministry of Justice
makes assertions such as, "The right to asylum is not a firmly established
notion in international law. Even if someone is a refugee, this does not mean that there is a recognized right for that person to enter and live in the country of his or her choice."
The Shenyang incident aroused debate about diplomatic "face-saving" between China and Japan. However, we must not lose sight of the essential problem: that is, the refugee policy of Japan which, having signed the International Convention on Refugees, continues literally to slam the gate shut in the face of asylum seekers.
Just as it did when it signed the International Convention on Refugees, today the Japanese government is ponderously endeavoring to respond to international criticism. The Ministry of Justice has set up a specialist section on refugee issues within the Migration Control Policy Advisory Council (Shutsunyukoku Kanri Seisaku Kondankai), a private advisory body reporting to the Minister, and this has begun examining reform of the system. It is important that the examination should reconsider the Ministry's existing approach to asylum seekers, acknowledge the negative aspects of the policy, and conduct its discussions on the basis of international standards of human rights. If the process again ends up with hasty reforms designed simply to "save face", this country will endlessly continue inflicting secondary persecution on refugees.
The acceptance of refugees is not only a duty under the Refugee Convention, it is a humanitarian obligation to international society. Just as the civil war in
Afghanistan was brought about by superpower delusions, so today, when
politics and economics are becoming increasingly global, we cannot be wholly
unaffected when conflict arises even on the other side of the planet. To the
extent we are unable to end conflict entirely, each nation should shoulder
responsibility for protection.
The system for recognizing refugee status is a human safety net that crosses
national boundaries. It represents a transformation of law, of systems and of
consciousness in order to save lives that must be saved. When Japan is able to put that transformation into practice, this will surely mark the turning-point from being a "closed country" for refugees to being a "human rights superpower".
vol. 703 (July 2002), pp. 143-150, translated by Lorinda Kiyama.