From Persecution to Prison - Bellevue/NYU Program for Survivors of ...

espect shown for the inherent dignity of the person.” 287 The Guidelinescharge individual States with adopting laws to further this requirement.In addition, consistent with international law’s presumption againstdetention of asylum seekers, UNHCR’s Guidelines mandate sensitivity tothe often difficult circumstances of refugees. Special emphasis is placed on“vulnerable persons,” including survivors of torture or trauma and peoplewith mental or physical disabilities. 288 This concern takes on added significancein view of the findings of this and other studies demonstrating thatthe majority of asylum seekers suffer from trauma or other forms of psychiatricmorbidity. 289The UNHCR’s Guidelines require that these “trauma or torture victims”be identified immediately through an “initial screening of all asylumseekers at the outset of detention.” 290 Given “the very negative effects ofdetention on the psychological well being of those detained,” the Guidelinesurge the general use of alternatives. In the absence of such alternatives,survivors of torture or trauma should be detained only “on thecertification of a qualified medical practitioner that detention will notadversely affect their health and well-being.” 291Non-Criminal Status of Asylum SeekersFundamentally, conditions of detention for asylum seekers must not bepunitive or disciplinary. 292 The UNHCR Executive Committee stressedthat “refugees and asylum seekers shall, whenever possible, not be accommodatedwith persons detained as common criminals.” 293 The UNHCRGuidelines state “there should be no co-mingling of the two groups.” 294Asylum seekers should not be held in prisons or jails, even if detained separately.295 The UN Working Group on Arbitrary Detention also said asylumseekers’ detention should be in “premises separate” from people incustody under criminal law. 296Just as the Guidelines insist that detained asylum seekers should neitherbe regarded nor treated as criminals, the Body of Principles defines a287UNHCR Guidelines, Guideline 10288UNHCR Guidelines, Guideline 7.289See Pistone, Justice Denied.290UNHCR Guidelines, Guideline 10(i).291UNHCR Guidelines, Guideline 7.292Refugee Convention, Article 31; Guidelines, Guideline 3.293UNHCR ExComm Conclusion 44, paragraph (f), stresses that “refugees and asylum seekersshall, whenever possible, not be accommodated with persons detained as common criminalsand shall not be located in areas where their physical safety is endangered.”294UNHCR Guidelines, Guideline 10(iii).295UNHCR Guidelines, Guideline 10(iii).296UN Arbitrary Detention, Deliberation No. 5.LEGAL STANDARDS 169