In August 2020, the United Nations accepted the comments regarding the situations of long-term detention of refugees in detention centers in Japan, and asked Japan to take necessary actions, compensate the refugee victims, and revise the immigration law. In other words, the treatment of refugees violated international human rights laws.

However, the Japanese government did not take any actions.

Here are the stories and thoughts of five Japanese attorneys, who refused to keep silent in front of the injustice and decided to fight for the human rights of refugees in Japan.

Attorney Komai

“I lived in West Germany when I was in elementary school and saw the Berlin Wall in action,” said attorney Chie Komai.

There were many white crosses on the west side, and they were the unmarked graves of political refugees who had been shot and killed trying to escape from the east to the west. I couldn’t forget that scene, and it inspired me to help refugees.”

Ms. Komai had studied international refugee law in the U.K., but “when I learned that the refugee status was not better in Japan,” she returned to Japan and began assisting refugees as a lawyer. In the process, she met Safari, an Iranian national who was a detainee at the East Japan Immigration Center for five or six years, but who also worked as a Persian interpreter for other detainees.

Safari had fled his country after suffering severe persecution in his homeland, but he was a cheerful, good-natured person.

But his body collapsed after being repeatedly detained for long periods of time and released for short periods, coughing up blood.”

In 2019, around the time a Nigerian national starved to death at the immigration center in Omura, Nagasaki Prefecture, hunger strikes spread to immigration detention facilities across Japan.

More than 100 people went on hunger strike across the country. They were driven to the mental extreme and said, ‘This is all we can do.’ And so did Safari.

The reason the detainees went on hunger strike was because the Immigration Bureau had continued to operate under the policy that the detainees would continue to be detained indefinitely unless they had injuries or illnesses that made their detention intolerable.

As a result, since July, the Immigration Bureau has been issuing “provisional releases” (temporary suspension of detention and release from physical restraints) to inmates who have become extremely weak due to hunger strikes, but this practice is apparently inhumane.

The immigration authorities continued to issue provisional releases to refugee claimants who had been physically injured by hunger strikes, and then re-institutionalize them indefinitely after two weeks. It is just like public flogging. It was only a mockery of human life.

Safari also suffered a physical breakdown and was provisionally released on July 31, 2019. For the next two weeks, Ms. Komai and her colleagues filed various motions to extend the provisional release in an attempt to protect Safari.

But on August 14, 2019, two weeks after his provisional release, Safari was taken back to the detention center. He was rattled and shaking, saying, ‘But I’m never going to run away, I’m in a position where I’m asking you to protect me as a refugee.’ Ms. Komai could never forget that moment.

“I wondered if the Immigration Bureau would go that far. These repeated two-week provisional releases and detentions were repeated three times, and Safari suffered from depression. Forcing him into depression and making him suffer such extreme pain, someone should take responsibility for such an atrocious act.”

Attorney Takada

“On August 14, I saw Safari being taken away from me at the Tokyo Immigration Bureau in Shinagawa, and that’s when my fight began.”

“I met Attorney Komai and Attorney Suzuki in the waiting room on the first floor of the Immigration Bureau and told them I was ready to fight.”

ToshiakiTakada, who has been interested in international human rights law since he was a student and has worked for an international human rights NGO, has been involved in refugee cases since his first year as a lawyer. In this case, he is in charge of providing legal support to Deniz, a Kurdish national from Turkey.

Deniz came to Japan after suffering persecution in his home country. He was detained repeatedly, some for as long as three and a half years, and was subjected to violence in the facility.

What Mr. Takada remembers most vividly is the time he met a man who had been detained in Japan.

“He was very skinny in appearance, and would say, ‘The white walls inside the immigration office make me feel pain.”

He said, “In everyday life, white walls are common. But when you can only stay there and don’t know when you will get out, there is a fear that your everyday life will turn into an extraordinary one. This is how long-term, indefinite incarceration can take its toll on the body and mind.”

“Such detention lacks rationality, necessity, and proportionality to the purpose of the detainees. They are arbitrary detentions. It is a clear violation of international human right law.”

Two months later, in October 2019, Mr. Takata and his team of lawyers notified the UN Working Group on Arbitrary Detention that the detention of Safari and Deniz violates Article 9 of the International Covenants on Civil and Political Rights.

Article 9 (1):
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

What is emphasized here is that the principle is that all persons are free. Strict conditions should be imposed for exceptional physical restraints.

International Covenants on Civil and Political Rights is a multilateral treaty that provides for the guarantee of human rights, which entered into force in 1976 and was ratified by Japan in 1979. The Working Group on Arbitrary Detention is a group of experts established under a UN Human Rights Council resolution to investigate physical restraints suspected of arbitrary detention.

In response to a report, the Working Group began investigating the cases of these two detainees.

Attorney Suzuki

“Before I became a lawyer, I was originally involved with refugee applicants in a friend-like capacity as a clerk at a law firm,” says attorney Masako Suzuki.

In the 1990s, there were many Myanmar refugees who fled after the coup.

“After I became a lawyer, I have been involved in refugee, immigration, and foreign nationality issues for a long time.” I have seen the situation surrounding foreign nationals getting worse, with the refugee status rate falling below 1% and detention becoming more prolonged.”

Attorney Suzuki said that 2019 was the year in which “the situation of foreign nationals came to an extreme” with the starvation deaths at the detention facility in Omura, hunger strikes, and repeated detentions.

“The Immigration Bureau has too much discretion in the use of provisional release and incarceration.”

The problem with Japan’s Immigration Bureau lies in the Immigration Control Act, which allows the Immigration Bureau to detain foreign nationals at its discretion as long as they have a written deportation order.

The fact that a deportation order is all that is needed to detain a foreign national is inextricably linked to the fact that there is no opportunity for a court to check the case.

This is also in violation of the International Covenant on Civil and Political Rights.

Article 9, Paragraph 4
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Deprivation of a person’s physical liberty must be checked by the court, not decided unilaterally by the administrative government.

Attorney Uraki

“The fact that there is no opportunity for the court to check the detention means that the detention authority (the Immigration Bureau) will determine the legitimacy of the detention on its own. This is not a guarantee of neutrality at all,” said Attorney Tomoko Uraki.

“This can by no means be conducive to guaranteeing human rights.”

“In 2014, while working on refugee and immigration issues as a lawyer, I visited an immigration detention facility in the United Kingdom. What I saw then was a completely different stance from that of Japan, both in treatment and procedure.”

“In Japan, the principle is that all refugee cases can be detained, whereas in the UK, detention is an exceptional treatment. In Japan, the ‘total incarceration principle’ allows for in-principle incarceration, while in the U.K., incarceration is an exception. In exceptional cases, the detainees are free to spend their time while in the facility. They can work inside, read books in the library, or search on the Internet.”

What’s more. In Japan, when a person applies for provisional release, he or she has to wait for at least two to three months and is not informed of the reason for a denial. But in the U.K., the decision of a provisional release has to be given within 3 days with a clear reason.

“I felt strongly that this is the way it should be.”-After returning to Japan, Mr. Uraki began to fight the incarceration issue through lawsuits.

She began to fight the problem of incarceration through lawsuits. “I was able to win provisional release in one case through litigation,” he said. But it still took more than two years. I thought this was an inadequate remedy for the parties involved, even if we won the case.”

“The UN took six months to come to a decision. We thought this was a fast and effective procedure.”

In response to the report, in September 2020, a UN working group issued an opinion that “the immigration detention of Safari and Deniz constitutes ‘arbitrary detention’ and violates Article 9 of International Covenant on Civil and Political Rights and other provisions. The opinion went on to request that the Japanese government “take the necessary measures to bring it into conformity with international norms,” that “giving the lids the right to compensation is an appropriate remedy,” and that the Immigration Control and Refugee Recognition Act be reviewed.

The government, however, has not responded.

“The fact is that the International Covenant on Civil and Political Rights has not been adequately reflected in Japanese courts,” said Ms. Uraki.

“Lawyers in Japan who have not actively advocated for them are also responsible for this. In this case, the United Nations has given its opinion, and we decided to file the lawsuit on the basis of international law in order to make a proper argument.”

Attorney Ogawa

In January 2022, Safari and Deniz, along with five attorneys, filed a lawsuit against the Japanese government.

The detention is indefinite, without any requirement of necessity or reasonableness, and without any opportunity for the court to check the detention. These are illegal as “arbitrary detention” prohibited by international law (the International Covenant on Civil and Political Rights). The Immigration Control and Refugee Recognition Act, which is the basis for the detention, is also invalid and in violation of international law. The government must compensate for any damage caused to the detainees as a result of the detention. –The Covenant states, “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation” (Article 9, Paragraph 5).

“Through this lawsuit, we also want to convey the message that international human rights law is not just an idea, but a legal norm,” said Ryutaro Ogawa, attorney at law.

“If international human rights law is clearly stated to be a legal norm, then people suffering from arbitrary detention in immigration detention centers, penal institutions, and mental institutions will be similarly protected by international human rights law.”

“I started working in this field when I was a student,” recalls Mr. Ogawa, “After 9/11, when I became interested in the human rights situation overseas, starting with the Iraq issue.”

“When I was a university student, I volunteered for Human Rights Now, an international human rights NGO, and at an event called African Night, I was told by a person from Africa who was applying for refugee status in Japan that it was important to work on human rights issues overseas, but as a result, there were people like us who had fled to Japan and were in trouble in Japan as well. There are people like us who fled to Japan and stuck here as a result.

“I had an aha moment. I decided to work on human rights issues both overseas and in Japan. So I started taking refugee cases when I first became a lawyer.”

“In the course of taking refugee cases, I witnessed the reality of immigration detention, where people are not released on provisional release unless they become ill. Human rights are guaranteed to all people, not just something like a residential status that is given discretionarily by the state.”

Resident status is not a prerequisite for guaranteeing human rights.

Ms. Komai nodded and commented that “the denial of their residency status does not make them less human.”

The five formed a team to report the case to the UN Working Group, and have been supporting Safari and Deniz in their legal battle.

The five discussed not only the two cases, but also the issue of incarceration, the lives of foreign nationals, and the state of Japanese society as a whole.

“I have seen a number of refugee claimants in detention who have decided to return home, saying, ‘I want to die as a human being, even if I may be persecuted and die in my home country. They have said, in their own words, ‘I am not an animal. The detention is making them feel that they are not being treated as human beings.”

“Such a situation is a threat to Japanese society.”

It’s not just an immigration issue, but it’s a cross-cutting issue.

“Arbitrary detention is used not only in immigration cases,” Ms. Suzuki pointed out in response to Ms. Komai’s talk.

“In criminal cases, detention to force a confession is called ‘hostage justice. In the field of psychiatry, there is also a system in which a person can be forcibly hospitalized regardless of his or her will.”

“The willingness to trample on the human rights of the minority for the ‘safety and security’ of the majority is well demonstrated in a variety of areas.”

Mr.Takada added “We don’t even know what is good for society as a whole.”

“The system reflects the majority’s idea that it is okay to exclude minorities as long as it is good for the whole.”

Ms. Komai questioned, “When we become socially vulnerable in various fields, the state thoroughly strips away our dignity, and is this acceptable for society?”

Physical freedom is a fundamental human right.

“Those who are socially vulnerable, those who have difficulty speaking out, and minorities are especially vulnerable to having their physical freedom taken away,” says Ms. Uraki.

“Their resistance to having their physical freedom taken away is too weak in our society.”

“I think it is the ultimate discrimination for a human being to deprive another human being of his or her physical freedom,” Ms. Uraki continues.

“To lock people up is to make them feel that they are not treated as human beings. I think that’s what makes detainees feel like ‘we are human beings, not animals.'”

Mr. Ogawa emphasizes how fundamental the freedom of the body is to human beings.

“I think anyone would go insane if they were told, ‘I don’t know how long you’re going to stay in one room, in one building,’ and then Covid-19 goes viral and they say ‘stay home,’ and how stressful and inhuman it is to not be able to move around, and how important it is to be able to move freely. I think we all understand that better now.”

“I think we all now understand how important it is to be able to move around freely. They get mental and other effects, and even after they get out, they can’t live a normal life.”

Safari’s medical report shows that he moved from depression to depression after repeated incarceration.

The future the five seek through the trial

“Besides Safari and Deniz, there are many others who are suffering. Those who have suffered unreasonably are afraid of being reincarcerated after Covid-19 settles down, even if they receive provisional release. There are people still being incarcerated.”

“I want people to understand that the system is wrong, and I want to help as many people as possible,” said Mr. Takada.

Ms. Komai continued, “I hope that the fact that there are people who can be saved through this trial will be a light in the hearts of the two people who are still suffering.”

“As Japan’s economy has worsened and become more inward-looking and exclusionary, the human rights situation for foreign nationals and undocumented immigrants has worsened. We have not been able to stop this for a long time.”

Ms.Suzuki said, “I hope that this trial will be a turning point so that the fundamental human right of physical freedom will be properly guaranteed, and not just within the limits of discretion.

“I don’t intend to do anything special,” said Ms. Uraki.

“There is no precedent in the Japanese courts, but the International Covenant on Civil and Political Liberties exists and its interpretation is well established. It is not surprising that a certain judgment should be made. Just as the past treatment of leprosy patients has been shown to be wrong, I believe the lawsuit will reveal that the immigration law up to now has been problematic.”

Mr.Ogawa smiled, “In that sense, the lawsuit is just a little ahead of its time.”

All five attorneys think that there is hope, and at the May 31 oral argument date at the Tokyo District Court, the grand courtroom was filled to capacity. Citizens’ interest in the issue will lead to an increase in society’s awareness of human rights. This is the first step for Japan eventually becoming a leader in the field of human rights.

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Interview and text by Yuko Haraguchi
Photography by Ooki Jingu
Edited by Orie Maruyama
Translated by Reiko Inoue and Tracey Cui