Following President Donald Trump’s Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States”, that barred nationals from seven predominantly Muslim nations, namely Iraq, Iran, Libya, Syria, Somalia, Yemen, and Sudan, it has been echoed in Europe with respect to the treatment of refugees and asylum seekers. The Executive Order also indefinitely prevents Syrian refugees, even those granted visas, from entering the US. And it suspends the resettlement of all refugees for 120 days.
Most recently, however, the Executive Order was rebuked by U.S. District Judge James Robart, who ordered a nationwide halt to its enforcement on citizens from the aforesaid Muslim nations. The Judge’s ruling was prohibiting federal employees from enforcing Trump’s Order, rejecting that the travel ban fell well within the President’s national security powers. The Judge mainly expressed that it was anti-constitutional. In fighting back the halt of the Executive Order, or to make matters worse, the US Department of Justice then filed its appeal in the Ninth Circuit in San Francisco but unfortunately, in a unanimous decision, the panel of three judges refused to reinstate the suspended travel ban and allowed previously barred travelers to enter the U.S. Obviously, this was a major setback to the Trump administration.
In any event, the fact the Trump’s Order was issued without distinction of people entering the USA from the said Muslim nations, it was equally preventing Syrian refugees who are entitled to a protection under the principle of non-refoulement. This is a key facet of refugee law that concerns the protection of refugees from being returned or expelled to places where their lives or freedoms could be threatened. The principle of non-refoulement is well codified in a number of international instruments relating to refugees, both at the universal and regional levels.
A similar position has recently been taken by a number of European countries due to growing number of refugees escaping instability in Syria, Iraq, Eritrea and Somalia.The UK government, for example,announced that it was halting a programme to resettle lone refugee children, after 350 had been brought to Britain. In addressing the House of Commons, the UK Home Secretary Amber Rudd said “we do not want to incentivise perilous journeys to Europe, particularly by the most vulnerable children.” This statement is clearly not conformable with “the Dubs Scheme”, the amendment of the UK Immigration Act, “opening up a safe and legal route to the UK for unaccompanied children – provided it was in their best interests”.
Equally, Germany announced that it will begin returning asylum seekers to Greece, as the first safe country in which they enter Europe, owing to systemic deficiencies in the Greek asylum system. Likewise, Dutch Prime Minister Mark Rutte has adopted a zero-tolerance approach to immigrants who are unwilling to sign up to the country’s way of life, telling those who “refuse to adapt and criticise our values” to “behave normally or go away.” Also, the Hungarian parliament recently introduced a bill on February 14 that requires the police to deport any person who is in Hungary illegally, without allowing any access to any asylum procedure. This unfair treatment of refugees is not only done in the above listed countries but virtually across Europe.
According to the United Nations High Commissioner for Refugees Report, in 2016, the number of refugees had risen to 65.3 million by the end of 2015. This reflected an increase of approximately 5.8 million refugee and asylum seekers from the prior year.
In terms of treatment of refugees, as articulated above, the principle of non-refoulement, as laid down in the 1951 Convention relating to the Status of Refugees, is the cornerstone of their international legal protection. It prohibits the return of refugees to a risk of persecution. Likewise, Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) establishes the principle of non-refoulement. It forbids states parties from expelling, returning or extraditing a person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Refugees often flee repressive regimes to escape persecution. Sending people back to a country where they may well suffer torture violates the CAT.
Equally, Article 2 of the International Covenant on Civil and Political Rights (ICCPR) forbids states parties from making distinctions in the provision of civil and political rights based on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The principle of non-refoulement is likewise recognised as a central piece of the European Union’s fundamental rights regime, as reflected in Article 78(1) of the Treaty on the functioning of the EU.
The USA and European countries ought to reconsider their international obligations with respect to the foregoing instruments. Rwanda, like many developing countries, hosts a large number of refugees from Burundi and the Democratic Republic of Congo, but has never expelled or ill-treated them. Apart from being a legal obligation, the West ought to treat refugee and asylum seekers humanely and compassionately.
The writer is an international law expert.