Glasgow Refugee Asylum and Migration Network (GRAMNet)

Bringing together researchers, practitioners and policy makers working with migrants, refugees and asylum seekers in Scotland

Bound by law to aid refugees*

by Linda Rabben

Pressured by the most xenophobic elements of American society, the Obama administration has asked Congress to expedite the detention and deportation of Central American children and families to countries where they may be in danger of torture and death. This is the administration’s panicked response to tens of thousands of unaccompanied children who are coming across the southern border, fleeing violence and persecution in El Salvador, Honduras, and Guatemala.

Last month, the U.S. government acknowledged the terrifying violence these children are trying to escape, calling their migration a “humanitarian crisis.” Under such circumstances, the government has a clear obligation under national and international law to care for refugees while determining whether they qualify for asylum or other protections. It is our responsibility to treat them humanely and not return them to the countries they fled without due process.

Asylum seekers are eligible for such protection under a principle of international law called non-refoulement. It holds that governments can’t send refugees home if they are likely to be persecuted, tortured, or killed there. Governments have pledged to uphold this principle in treaties and other instruments of international law. But they often try to avoid enforcing it.

Why don’t governments like this idea? Because it means they have to decide, on a case-by-case basis and at great expense of time and money, if people asking for asylum or other protections are eligible for them. Often, these aren’t the kind of people many of us want in our country, so there may be a political price for doing the right thing.

Non-refoulement became well established after World War II. Before and during the war, governments turned away desperate Jews and others who tried to flee Germany and other countries controlled by the Nazis. Only a small proportion of the hundreds of thousands who tried to escape were able to find refuge in Europe, the Americas, Asia, and Africa. The United States and other governments repeatedly refused to admit Jews and other persecuted people.

Apparently shamed by countless stories of defenseless people sent back home to their deaths, the World War II victors included a non-refoulement provision in the Refugee Convention of 1951 and other international agreements. Article 33 of the Refugee Convention says: “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.”

Later documents, such as the Convention against Torture of 1984, built on earlier agreements. Article 3 of the torture convention says: “No state party shall expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The U.N. Convention on the Rights of the Child (1989) – which only the United States and Somalia have not ratified – says: “States parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee … shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance.” This and other international agreements consider detention or deportation of children to be a last resort.

Like other nations that have signed or ratified these agreements, the United States has put non-refoulement provisions in national law and then tried not to implement them. Yet time and again, governments look bad and provoke public outcry when they practice refoulement – especially if they proclaim themselves protectors of human rights at home and abroad.

For example, the U.S. government’s refusal to grant asylum to thousands of desperate Central Americans during the 1980s led to the Sanctuary Movement, comprising hundreds of religious congregations, universities, city governments, and advocacy groups. They gave refuge to asylum seekers from El Salvador, Guatemala, and Honduras while campaigning to end U.S. support for repressive regimes in those countries.

Now our government is acting as if this history never happened and our obligations under international law do not exist. This is a scandal, a disgrace, and a betrayal of the principles we claim to stand for. So activists and good Samaritans are helping Central American asylum seekers once again. The Statue of Liberty still lifts her lamp beside the golden door.

Linda Rabben is a faculty fellow at American University’s School of International Service and the author of “Give Refuge to the Stranger: The Past, Present and Future of Sanctuary”.

*This article was published by the Philadelphia Inquirer, July 25, 2014, p. A27.

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This entry was posted on September 5, 2014 by in Comment and tagged , , , , , .
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