New Home Affairs department should prompt review of Australia’s human rights performance



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AAP/Lukas Coch

Amy Maguire, University of Newcastle

Prime Minister Malcolm Turnbull has just announced the creation of a new “super-ministry”, modelled on the UK Home Office. By the end of 2018, Australia will have a new Department of Home Affairs.

This change consolidates responsibility for all security agencies within a single portfolio. Peter Dutton, currently immigration minister, will head the proposed department.

Dutton gains responsibility for the Australian Federal Police from Justice Minister Michael Keenan. He also adds responsibility for ASIO, previously under the portfolio of Attorney-General George Brandis. As home affairs minister, Dutton will retain responsibility for immigration and border protection.

Announcing the change, Turnbull and Brandis went to considerable effort to note the attorney-general’s continued significance, despite his loss of responsibility for intelligence. Both emphasised that the attorney-general would gain responsibility for some oversight bodies previously within the prime minister’s portfolio.

According to Turnbull, the new arrangements will ensure stronger oversight of security matters to balance protection for civil liberties and freedoms.

What does this reform mean for people subject to Australia’s immigration system?

The comments of the four ministers at today’s press conference were revealing in many ways.

One group of people – refugees and asylum seekers – were completely absent from the ministers’ remarks. This raises questions regarding the meaning of the changes for these particularly vulnerable people, who remain subject to the powers of the home affairs minister.

Brandis said the reforms are significant because, for the first time, a senior cabinet minister will have as his exclusive focus the national security of Australia. That is, the home affairs minister’s sole focus will be national security and border security.

Dutton, preparing to assume wide-ranging new powers, reflected on his ministry’s success in stopping and turning back boats. According to Dutton, without integrity in the immigration and border protection system, “we can’t keep our country safe”.

And Keenan celebrated the government’s novel use of the immigration system to further its national security priorities.

The sum of these propositions is a continued linking of people seeking asylum with the notion of a threat to Australia’s integrity and security. Today’s announcement failed to show care or responsibility for the dehumanising impact of this strategy.

Instead, Dutton takes on a considerably expanded portfolio, despite extensive critique regarding his efforts to expand already very broad powers.

Australia’s bid for the UN Human Rights Council

Foreign Minister Julie Bishop was absent from today’s announcement. She is currently visiting India and Sri Lanka.

Her opposition to the creation of the new super-ministry has been widely reported.

Until today’s press conference, Brandis was also on record as opposing the creation of a super-ministry. This may explain the emphasis Turnbull placed on the oversight role of the attorney-general for “ensuring governments act lawfully and justly”.

Others will consider whether this change is called for in the sense of enhancing Australia’s security capacity or performance. But today’s announcement must also be assessed in the context of Australia’s human rights standing.

Bishop and Brandis have taken primary responsibility for promoting Australia’s current bid for election to the UN Human Rights Council. According to the Department of Foreign Affairs and Trade, Australia is the ideal candidate for a two-year term on the council, as it has been – and continues to be – an “international human rights leader”.

The government has taken steps to demonstrate Australia’s commitment to human rights, in support of its campaign.

For example, in February, Brandis announced that Australia would adopt the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT aims to improve oversight of international standards at the domestic level. Its adoption in Australia will enable access for independent inspection agencies to Australian prisons and detention centres.

And, fortunately for Australia, France recently withdrew as a candidate. Although an election will still be held in October this year, Bishop is now confident that Australia and Spain will be elected unopposed to the two available seats for their regional grouping.

Regardless of the likelihood of its election, however, does today’s shift in the national security context support the legitimacy of Australia’s bid for election to the Human Rights Council?

In launching Australia’s bid, Bishop described human rights as “national values deeply embedded in Australian society”. Brandis described Australia’s candidacy as:

… the most natural thing in the world for a country which – at its core – is a nation built on a belief in, and a commitment to, the human rights of all – the human rights of all Australians and the human rights of all the peoples of the world.

Such characterisations are widely disputed by domestic and international commentary, which tests Australia’s performance against its international legal obligations.

Notably, the people ignored in today’s announcement – those seeking asylum from persecution in their home countries – have suffered human rights abuses in Australia’s immigration system.

It is difficult to see how the consolidation of far-reaching security powers in a single ministry will promote human rights. Outgoing Human Rights Commission president Gillian Triggs has already identified expanding executive power as a threat to democracy and human rights.

While the protection of the Australian community from terror threats is an undeniable and legitimate priority for any government, lawyers must oversee the coming reforms to determine whether they further threaten the delicate balance between safety and security on one hand, and freedom and rights on the other.

Australia’s model for these reforms, the UK Home Office, hardly has a stellar human rights record. It has been recently criticised for “making border guards of doctors”. Its officials have been given incentives for reaching asylum seeker rejection targets.

And in June this year, UK Prime Minister Theresa May demanded expanded anti-terror powers for government. She said:

… if human rights laws stop us from doing it, we will change those laws so we can do it.

The ConversationThe human rights implications of today’s announcement must be carefully monitored, particularly considering the lack of comprehensive human rights protection in Australian law.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Regulator failing to resolve complaints on alleged human rights abuses by Australian companies


Shelley Marshall, RMIT University

The Australian National Contact Point (ANCP) was set up as part of Australia’s membership of the OECD to hear complaints on the way Australian corporations operate overseas, but research shows it’s poorly resourced and rejects most claims at the initial assessment stage, raising concerns about its effectiveness.

There are National Contact Points already operating in OECD countries, that are achieving more with their mandate to promote Australian businesses respecting human rights while operating or based in other countries.

Australia does not have a legal framework that specifically regulates the human rights obligations of Australian corporations overseas. The Australian government is missing a vital opportunity to promote sound and ethical business practice and mediate disputes before they blow up, by inadequately resourcing this important human rights body.

Why is the ANCP needed?

Australian companies now operate all around the world in mining, manufacturing, finance and other industries. Sometimes this is through wholly owned subsidiaries, sometimes they invest in joint ventures or part shares, and at other times Australian businesses procure parts through supply chains.

When their activities negatively impact communities overseas, those affected should be able to go to the ANCP to hear their complaints. Though, in principle, communities can take their claims to local police and courts, in many countries corruption, bias and long waits often make remedy through legal avenues impossible.

Company structures also sometimes render it difficult to hold the parent company or a lead company in a supply chain responsible, even though that business may be calling the shots.

As the Australian government adheres to the OECD’s guidelines for multinational enterprises, it’s required to have a National Contact Point to assist corporations in observing these guidelines. Part of this includes providing a platform for mediation and conciliation.

Though its findings may not be legally enforceable, the ANCP is particularly important because it’s the only avenue for redress for many communities and individuals affected by Australian business, outside our national borders.

Properly resourcing the National Contact Point would allow the government to better fulfil its obligations under the United Nations Guiding Principles on Business and Human Rights (UNGPs).

Findings by other National Contact Points, when it comes to breaches of the OECD Guidelines for Multinational Enterprises, have been highly influential in other countries. For example, the UK NCP determined that mining company Vedanta Resources had breached human rights guidelines regarding its planned mine in India.

It found the mine would displace thousands of tribal people. This finding resulted in high profile divestments from the company by a number of shareholders and the adoption of a new corporate social responsibility approach by the company. Interviews with shareholders that divested revealed that although the determination was not legal in nature, it was seen to have heightened authority because it came from the UK government.

How the ANCP is failing

The research on Australia’s NCP is part of a larger project that conducted 587 interviews with 1,100 individuals mainly in Australia, the UK, India and Indonesia. It assessed the performance of the ANCP based on an analysis of every claim that has been lodged with the body.

It found that the ANCP has all but abdicated its workload; it rejected or transferred (to another NCP) two thirds of all complaints made. With only one exception, the remainder of accepted complaints were closed without resolution, as the ANCP was unable to bring the parties to mediation and unwilling to issue a determination against the company the subject of complaint.

In the more than ten years since its establishment, the ANCP is yet to make a single determination against a company the subject of complaint.

In my meetings with Treasury, the department confirmed that until recently, one public servant was tasked with running the ANCP, who already had a full-time load of other work. Treasury also disclosed this single staff member, with no expertise in the area, was expected to deal with complex human rights complaints involving some of Australia’s biggest companies, around their primary role, with no dedicated budget.

To provide a point of comparison, the Dutch NCPhas two full-time staff, as well as other staff who have responsibilities to the NCP as part of their other duties, and receives an additional €900,000 over three years to promote corporate ethics. It is advised by four independent members and four advisory members from the government departments most relevant to business and human rights. Australia’s NCP receives no such independent advice.

The cases brought to the ANCP include a complaint regarding ANZ’s alleged financing of logging in Papua New Guinea and alleged forced evictions at a coal mine in Colombia jointly owned by BHP Billiton.

What needs to change

There are several ways the ANCP can improve its functioning and provide access to remedy. Top amongst these are: improving the independence of the ANCP and properly resourcing it, improving the process for handling complaints and increasing transparency.

If there was ever a time that the much neglected ANCP has a chance of being reformed, it is now. Australia is making a bid for a seat on the United Nations Human Rights Council this year.

The ConversationModern slavery – especially the extent to which it taints the supply chains of Australian businesses and businesses operating in Australia – is the subject of a parliamentary inquiry and national attention. Hopefully this important human rights mechanism gets the attention it deserves.

Shelley Marshall, Vice Chancellor’s Senior Research Fellow, expert in corporate accountability, RMIT University

This article was originally published on The Conversation. Read the original article.

‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation



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Peter Dutton’s condemnation of those he terms ‘fake refugees’ is prejudicial.
AAP/Mick Tsikas

Amy Maguire, University of Newcastle

The federal government has set an October 1 deadline for 7,500 people who arrived in Australia by boat between 2008 and 2013 – but who have not yet lodged claims for refugee protection – to apply for a visa or face deportation. The Conversation

Immigration Minister Peter Dutton declared “the game is up” for “fake refugees”.

‘Illegal maritime arrivals’

The first sentence of Dutton’s media release reads:

The Turnbull government has today set a deadline for thousands of Illegal Maritime Arrivals (IMAs) who flooded into Australia under the previous Labor government to prove they are genuine refugees and owed protection by Australia.

This statement reinforces prejudicial tropes that successive governments have used to demonise people seeking asylum in Australia. The subjects of the government’s announcement are not “people”, “individuals”, “human beings” – or even “asylum seekers”. Instead, they are “illegal maritime arrivals”.

These seemingly non-people did not “travel to” or “arrive in” Australia. Instead, they “flooded into Australia”.

They are the latest group to suffer from the shameful practice of setting human beings apart from others in the community: they are another class threatening peril and menace.

Fake refugees?

Dutton’s condemnation of “fake refugees” is prejudicial. It suggests those people now subject to his deadline must not have genuine protection claims – or they would have been lodged already.

Yet Department of Immigration statistics show people who travel to Australia by boat without a valid visa, seeking asylum, are more likely to be genuine refugees than people who travel by air with a visa and seek asylum on arrival. Over the years, between 70% and 100% of people arriving by boat have been assessed as eligible for refugee protection.

For example, people from Afghanistan have been the most likely to seek asylum in Australia by boat for many years. In this group, between 2008 and 2013, upwards of 95% were found to be refugees and granted protection visas.

The experience of lodging an application for protection

The people subject to Dutton’s announcement are part of a group known as the “legacy caseload”. These are people who have been living for some time in the Australian community in a state of legal limbo.

This state of limbo was imposed when the then-Labor government stopped processing protection visa applications for people who had arrived by boat. This bar on applications operated from 2012 until the Coalition government began to permit some members of the group to initiate applications from 2015. However, the bar on applications was not fully lifted until late 2016.

Dutton’s assertion that the 7,500 people now faced with a very short deadline for application have “failed or refused” to apply for protection unfairly suggests that sufficient time has already been afforded.

The prejudicial effect of this claim is worsened by Dutton’s parallel statement that the people in question are a drain on the public purse:

Many are residing in Australia on government funded support which last year cost the Australian taxpayer approximately $250 million in income support alone.

Dutton’s announcement also fails to mention that the Department of Immigration is unable to process the volume of asylum claims currently lodged, or that an arbitrary deadline for applications from people in the legacy caseload group will force many to apply without proper legal assistance.

Community legal centres around Australia have thousands of clients on their books awaiting assistance with protection claims. The complex process requires the completion of 184 questions and a detailed written statement, and many applicants will require translation. All ought to receive legal advice.

The latest development imposes undue stress on an already extremely vulnerable community. Only three months ago, some members of this group received letters from the Department of Immigration, threatening the withdrawal of Medicare and work rights if they failed to lodge applications within a tight deadline.

That many – if not all – of this group were on waiting lists for legal assistance is seemingly no longer sufficient to explain why they have not yet lodged protection applications.

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Is Australia committed to human rights or not?

Late last week, Foreign Minister Julie Bishop officially launched Australia’s bid for a 2018-20 seat on the UN Human Rights Council. Bishop described Australia as the standout candidate for this position because:

… we are arguably the most successful, the most diverse, multicultural society on Earth.

We have long embraced those fleeing conflict and persecution, and those in need of humanitarian support.

If elected to serve on the council, Australia intends to work collaboratively with all of our international partners towards fulfilling the goals set out in the UN Declaration of Human Rights – we will listen to your concerns. We will work with you.

It is impossible to determine the genuine extent of Australia’s commitment to human rights by juxtaposing Bishop’s claims with Dutton’s announcement. Article 14 of the Universal Declaration of Human Rights requires Australia to protect the rights of all people seeking asylum:

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

Article 33 of the UN Refugee Convention prohibits the return of a refugee to a risk of 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.

Yet the imposition of the October 1 deadline for applications from those in the legacy caseload group imposes an arbitrary limit on the time available to seek protection. It suggests the government is willing to violate its international legal option not to deport people who may have genuine claims for refugee status.

Refugee advocates will feel compelled to challenge the deadline in the courts, if the government seeks to deport people who have not had adequate opportunity or support to complete protection applications. This would open yet another front of government spending to support a policy and practice that violates Australia’s human rights obligations.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Australia’s bid for the UN Human Rights Council


Sarah Joseph, Monash University

Foreign Minister Julie Bishop has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and has now been officially endorsed by this one.

What is the Human Rights Council?

The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which had run from 1947 to 2006. In that time, the commission had some impressive accomplishments, including its early drafting of the Universal Declaration on Human Rights (UDHR) in 1948, and most of the core UN human rights treaties. The commission played a role in promoting and developing human rights norms, and investigating and highlighting human rights issues and crises.

However, by the time of its demise, its reputation was so clouded that its official name seemed to have become “the Discredited” Human Rights Commission. The West felt that too many countries with terrible human rights records, such as Sudan and Zimbabwe, were joining the commission (it had 53 member nations) to protect themselves from censure. In contrast, developing nations felt that the commission had become too antagonistic in its dealings with them.

A revamp was needed, so the commission was replaced by the council, which has the same normative and investigative functions and has 47 member nations. It has one major new function, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the council (as well as all other “observer” nations) every four-and-a-half years.

The 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). Australia is in the Western Europe and Other Group, known as WEOG. One-third of the council is elected every year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council upon a vote of two-thirds of the UN General Assembly: Libya was so suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents.

As the council’s members are representatives of their governments rather than independent human rights experts, it is hardly surprising that the council, like the commission before it, is a highly politicised body. So is the council an improvement upon the “discredited” commission? While the UPR is capable of improvement, it has generally been praised as a jewel in the council’s crown, which clearly distinguishes it from the commission.

Nevertheless, many of the same criticisms arise as were levelled at the commission. Some of its members, now and in the past, have terrible human rights records. After all, while Libya was suspended in 2011, one may fairly ask why it was elected in the first place?

Saudi Arabia’s leadership role is currently attracting much adverse media attention. Russia, China and Cuba are routinely elected, as was the case with the commission, though they all had to sit out 2013 as they had all served two consecutive terms. It is no coincidence that 2013 was a comparatively productive year for the council. **

Human rights criteria were mooted as prerequisites for membership back when the council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have different views on human rights. The US, for example, wanted only “democratic nations” to be eligible, whereas a focus on the implementation of economic and social rights might have led to the exclusion of the US itself.

Procedural criteria, such as a nation’s record on ratification of human rights treaties, would have been more objective. However, such criteria may have led to the exclusion of the two most powerful countries in the world – the US and China. As it stands, members commit to the highest standards of human rights, and countries should take into account a nominee’s human rights record when voting. But both of these rules are basically unenforceable.

Nevertheless, I believe that the membership of the council has generally been better than was the case with the later years of the Commission on Human Rights. It is notable that notorious abusers such as Sri Lanka and Belarus have sought and failed to gain election, while Syria was sensibly talked out of running in 2011. The secret ballot for council elections may be a key here, as there is a chance that a UN region will lose a seat for a year if an insufficient number of its nominees are deemed acceptable enough to be elected by a majority of the UN General Assembly.

The council is also criticised for running hard against human rights abuses in some contexts, while being notably soft in others. For example, inconsistency arose in 2009 when Israel was heavily condemned over Operation Cast Lead in Gaza while Sri Lanka was effectively praised a few months later for the end of its long-running civil war despite thousands of civilian deaths.

To be fair, the 2009 Sri Lanka resolution was possibly a nadir in the council’s operations, and it has been more proactive in responding to major human crises since, such as those in Côte d’Ivoire, Libya, Syria, Mali and the Central African Republic. It has also now adopted resolutions condemning Sri Lanka and calling for war crimes investigations. However, Australia did not support the 2014 resolution, presumably as it sought continued political favour with Sri Lanka to ensure its ongoing co-operation to stop asylum seeker boats.

A global intergovernmental body focusing on human rights is important. Such a body will always be dogged by politics, but it is important to have such a forum as countries care more about what other countries think than they do about the statements of human rights experts and NGOs. The council is that global intergovernmental body, and its evolving membership represents the world of today, warts and all.

It is doubtful that the battle for universal human rights observance will be won by adopting an “us and them” mentality which excludes significant numbers of countries even running for election for the “human rights club”. It could lead to balkanised human rights discussions, and possible competing institutions within the UN. The council must be a forum where non-like-minded countries can talk to each other and cross divides (as does happen on occasion) to make important human rights decisions.

Australia and the council

Australia is seeking a three-year term from 2018. It is competing with France and Spain for two WEOG seats. Will Australia be elected?

It is impossible to predict; much water will flow under the bridge before the election in 2017. Widespread praise for the role Australia ultimately played as a Security Council member indicates a reasonable amount of goodwill towards us. Clearly, France and Spain have the advantage of being members of the European Union, meaning they likely have a solid bloc of votes locked in.

On the other hand, Australia benefits from being seen to represent a different region than the always-well-represented Europe. Australia could for example try to position itself as a champion of the Pacific nations, and we will no doubt use the eternal narrative that “we punch above our weight”. Furthermore, the EU has frankly been dysfunctional in its lobbying efforts on the council, due to its slowness in being able to pin down a position among its own members.

Australia’s own human rights record will be of relevance to nations in deciding how to vote. Australia’s upcoming second UPR on November 9 will enable us to see what their major concerns are.

Australia has significant and well-known human rights problems, for example concerning asylum seekers, onshore and offshore detention, Indigenous people, violence against women and counter-terrorism laws. Here, I will focus on issues which have the capacity to undermine Australia’s reputation for cooperation with the UN.

One concern will be the Abbott government’s hounding of Gillian Triggs, the president of Australia’s Human Rights Commission, as those attacks do not sit well with the single resolution that Australia routinely co-sponsors before the council – that concerning the importance and independence of National Human Rights Institutions. However, it is likely that the government’s open hostility towards Triggs will soften under new Prime Minister Malcolm Turnbull.

Of great concern will be Australia’s attitude to its direct engagements with UN human rights bodies. We do not have a good record of implementing the findings of the UN treaty bodies, which have found Australia to be in breach of international human rights law more than 40 times.

In March, the UN Special Rapporteur on Torture, an independent human rights expert who is appointed by and reports to the council, found that Australia’s treatment of asylum seekers contravened anti-torture standards. Then-prime minister Tony Abbott petulantly responded that Australia was “sick of being lectured to” by the UN.

Only this week, the Special Rapporteur on the human rights of migrants postponed his official trip to Australia as the government could not guarantee that he could receive information from people about the offshore detention centres without those people suffering legal reprisals under the Border Force Act.

If Australia’s reputation for non-co-operation with the UN continues to grow, its council bid could and should suffer.

Conclusion

Australia has a long and proud history with regard to human rights and the UN. Herbert Vere Evatt oversaw the adoption of the UDHR in 1948 as the president of the UN General Assembly. Distinguished Australians have served on the UN treaty bodies (for example, Elizabeth Evatt, Ivan Shearer and Ron McCallum) and as Special Rapporteurs (for example Philip Alston is the current Rapporteur on extreme poverty and human rights).

It is appropriate for Australia to continue that history of leadership and engagement by running for the Human Rights Council. It is a flawed body, but a necessary one.

Australia’s road to election in 2018 will however be tough. A good faith attitude to our upcoming UPR and the resultant recommendations, as well as efforts to redress our considerable human rights failings, will help in that regard.


**The sentence on Saudi Arabia was added a few minutes after posting, due to the topicality of that issue.

The Conversation

Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash University

This article was originally published on The Conversation. Read the original article.

China: Persecution News Update


The links below are to articles reporting on persecution and associated news from China (the most recent are at the top).

For more visit:
http://www.voanews.com/content/china-ordains-new-catholic-bishop-amid-tensions/2902519.html
http://www.bbc.com/news/world-asia-china-33783463
http://www.ucanews.com/news/protests-over-chinas-cross-removals-gain-steam/74018
http://www.chinaaid.org/2015/08/zhejiang-officials-secretly-remove.html
http://www.rfa.org/english/news/china/china-olympics-07312015103401.html

China: Persecution News Update


The links below are to articles reporting on persecution and associated news from China (the most recent are at the top)

For more visit:
http://www.chinaaid.org/2015/07/zhejiang-officials-continue-removing.html
http://www.rfa.org/english/news/china/china-crosses-07292015101743.html
http://www.voanews.com/content/chinas-president-uses-law-to-tighten-grip-on-power/2883135.html
http://chinachange.org/2015/07/29/interview-with-a-wenzhou-pastor-the-chinese-governments-large-scale-destruction-of-crosses-in-zhejiang-province/
http://www.ucanews.com/news/crackdown-on-christianity-in-china-but-for-what-purpose/73986
http://www.chinaaid.org/2015/07/officials-detain-members-of-recently.html
http://www.asianews.it/news-en/Christians-respond-to-demolitions-in-Zhejiang-with-a-%E2%80%98Make-and-carry-the-cross-campaign-34884.html

China: Persecution News Update


The links below are to articles reporting on persecution news from China, including associated reports of human rights abuses (the most recent are at the top).

For more visit:
http://www.rfa.org/english/news/china/china-churches-07272015103543.html
http://www.chinaaid.org/2015/07/china-aid-president-testifies-at.html
http://www.reuters.com/article/2015/07/23/us-china-rights-idUSKCN0PX0UN20150723
http://www.rfa.org/english/news/china/china-lawyers-07212015140342.html
https://www.hrw.org/news/2015/07/20/china-secretly-detained-lawyers-risk-torture
http://www.chinaaid.org/2015/07/shaanxi-police-shut-down-summer-camp.html

North Korea: Persecution News Update


The link below is to an article reporting on persecution and human rights abuses news from North Korea.

For more visit:
http://www.christiantelegraph.com/issue21650.html