In Harm’s Way
How U.S. Policy for Handling Migrants Violates International Criminal Law—As Well as Our Own
Imagine you’re an immigrant who fled danger to seek asylum in the United States after escaping torture and beatings in your own country. Arriving here, you make your case, but instead of proceeding through a careful review process, you’re interviewed by an asylum officer completely unfamiliar with the dynamics of your situation and designated for speedy deportation back to your place of origin, where your life may still be in danger. That’s the story of Vijayakumar Thuraissigiam, a Sri Lankan asylum seeker whose case we’ll explore in more detail below. But his story is one of many thousands unfolding across the United States, and, now more than ever, these stories are going untold — or getting cut off before they can develop.
In fact, United States’ policies and practices for handling migrants and in particular refugees often endanger those people and breach international laws, which we have ratified. To remedy these violations, U.S. policy should be adjusted to align with international law, but individuals responsible for enabling these policies should also be tried as criminals under the same laws. To determine who these individuals are and how they can be brought to justice, we can begin by examining which laws the United States has agreed to and how they are being broken.
To consider the treatment of refugees in particular, we first have to determine who qualifies as one. Fortunately, not only can we refer to a definition of “refugee” which maps to international law, but the United States has also agreed to that definition.
The 1951 Convention Relating to the Status of Refugees originally established a detailed definition of “refugee” for the purposes of international law. According to Article 1(A)(2) of the Convention, a refugee is someone who meets the following criteria:
- Has a “well-founded fear of being persecuted for reasons of race, religion, nationality”
- Belongs to “a particular social group or political opinion”
- “Is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”
- “Or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”
This definition also places restrictions upon who can be considered a refugee. For example, it doesn’t apply to individuals who have committed war crimes or crimes against peace or humanity.
The 1967 Protocol Relating to the Status of Refugees is a treaty, which updated the definition forged in the 1951 Convention to remove any existing time limits on the definition and to mandate that refugees qualify without any geographic restrictions. The United States ratified the protocol in 1968, essentially agreeing to the scope of both the 1951 Convention and the subsequent Protocol. Essentially, at this point in time, we agreed to acknowledge the right for refugees to seek asylum in the United States to escape persecution and agreed not to return refugees to likely persecution.
U.S. Adoption of International Law
In fact, historically, the United States has agreed to several elements of international law, which could be referenced to hold individuals accountable for criminal behavior in regards to the United States’ treatment of refugees, as well as other migrants.
As early as 1882, the United States signed the first of the Geneva Conventions, which when initially enacted in 1864 addressed the handling of sick and wounded troops. Subsequent Conventions in 1906, 1929, and, most notably, 1949 added or refined protections for civilians and military prisoners of war, as well as religious and medical personnel. The United States ratified these Geneva Conventions in 1955. Three additional protocols have modified the 1949 convention, twice in 1977 and once in 2005. The U.S. signed but never ratified Protocols I and II, but did ratify Protocol III, which ensures that religious and medical personnel displaying the Red Crystal must be protected within any conflict. By ratifying the Geneva Conventions and this subsequent Protocol, the United States has agreed to comprehensive standards for the treatment of human beings during wartime within the context of international law.
Subsequently, by ratifying the 1967 Optional Protocol, the United States signed onto the 1951 Convention on the Status of Refugees, as well, and agreed to its definition of “refugee.” By signing the Protocol, the United States confirmed the human right to seek asylum universally without temporal or geographic restrictions. Congress also passed the Refugee Act of 1980, which amended the Immigration and Nationality Act and codified principles aligned with the Convention into U.S. law. The Act directs the Attorney General to withhold deportation of an “alien” to a country if that person’s “life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” Since then the Supreme Court has even acted in deference to the Protocol, ruling in 1987’s INS v. Cardoza-Fonseca, for example, that an individual seeking to avoid deportation need only show “a well-founded fear of persecution.”
Furthermore, in October 1994, the United States ratified The United Nations Convention Against Torture, an international human rights treaty focusing entirely on torture. This 1984 Convention requires participants to prevent and investigate torture and to prosecute those individuals who engage in acts of torture. It applies both within and without United States borders and applies to all government employees and private contractors working on behalf of the U.S. government.
Finally, but most importantly, according to Article VI of the United States Constitution, the United States must adhere to any treaties we have signed as “the supreme Law of the Land.” In other words, any treaties we agree to essentially become our own laws, too.
Combined, the United States’ agreement to adhere to this large body of international law provides clear guard rails for any policies and procedures, which may affect refugees and asylum seekers or other migrants handled or detained within the country. Unfortunately, little is being done to ensure the United States remains in alignment with these agreements.
Violations of International Law
By examining specific examples of the United States’ treatment of migrants, we can identify violations of international law, as well as individuals who can be held criminally accountable.
Current United States policy and practice adversely affects migrants in two broad ways. The first pertains to treatment within our borders. The second concerns those individuals, who are refused entry to the U.S. and directed to return to their country of origin. Both scenarios may involve breaches of international laws the United States remains party to.
First, consider the treatment of migrants within the United States on properties, such as Custom and Border Protection stations or detention facilities, which some have even described as “concentration camps” and even “a human dog pound.” Arguably, employees of these facilities can be held accountable for violations of the 1967 Protocol, the Convention Against Torture and the Geneva Convention. The most profound, ongoing example of these violations concerns the treatment of migrants within detention centers, which has been argued to be worse than treatment determined unacceptable for prisoners of war by the Geneva Conventions.
Examples of this mistreatment include children not bathing for weeks, children needing but not wearing diapers, and children being forced to take care of sick infants. Kate Cronin-Furman, assistant professor of human rights at the University College of London, argues that these circumstances meet “the definition of a mass atrocity: a deliberate, systemic attack on civilians.” She suggests that individuals working at these Border Patrol and Customs facilities should be held accountable under international law for the conditions there.
Another example. In early 2020, a pregnant, asylum seeking Guatemalan woman referred to only as “Ana” was taken into a San Diego Border Patrol station while in labor. Since she was refused access to a hospital, she gave birth while standing without removing her pants and while bracing herself against a trash can. The local American Civil Liberties Union and Jewish Family Service of San Diego filed an eight-page complaint with the Department of Homeland Security, saying, Ana “gave birth at the Chula Vista Border Patrol Station on February 16, 2020 under harsh conditions that placed her and her baby at unnecessary risk.”
In early April of 2020, stories emerged of four detainees at the Immigration and Customs Enforcement (ICE) detention facility in Batavia, New York, who requested release after contracting COVID-19. They were denied release, potentially exposing many of the facility’s 374 detainees to the virus. These stories, of course, are merely representative of many similar cases, which have been discovered across the United States. They’re not comprehensive.
The United States also violates international law, when it returns refugees to their countries of origin or to intermediate countries, where they may be harmed or killed as a result.
The Trump administration’s “Remain in Mexico” policy requires asylum seekers to stay in Mexico while their applications are processed — often for many months — a practice which often endangers their lives. Not only does the 1967 Refugee Protocol guarantee refugees the right to asylum, it forbids deporting them to “places where they may face bodily harm.” The Protocol also applies to refugees “without any geographic limitation,” meaning asylum seekers don’t need to present themselves at prescribed stations, nor do they have to seek asylum in the first country they come to. This stipulation arguably invalidates the “Remain in Mexico” policy. In fact, the policy was ruled invalid by a Federal appeals court in February 2020, though the court stayed its decision, giving the administration time to respond to its ruling. The Supreme Court later addressed the issue by ruling that the policy can stay in place while its legality is debated.
In the meantime, the “Remain in Mexico” policy has real-world impacts. Ana, the Guatemalan woman who gave birth at a Border Patrol station was waiting in Tijuana while her asylum case was processed under the policy. She had fled Guatemala from an individual, who she said began threatening to find her in Tijuana, which is what prompted her to cross into the United States illegally. Sending her back to Tijuana to wait had placed her life in danger.
Most recently, The New York Times reported that the Trump administration has been turning children away at the border, ignoring the United States’ own federal anti-trafficking laws, which require minors to be accepted into the country and given shelter until they can properly convey their stories. Of course, this breeches the same international laws, which requires the United States to admit and review asylum seekers at our border. These asylum seekers just happen to be children traveling alone. And Border Patrol has refused over 2000 of them without the required review. The Centers for Disease Control just extended this order, first initiated in March, with the justification that it’s to help restrict the spread of COVID-19.
The independent advocacy agency Refugees International argues these restrictions “are not justified on public health grounds and illegally target asylum seekers for expulsion.” In fact, there is no scientific evidence to support these restrictions and that they amount to an unprecedented move in U.S. history. Therefore, Refugees International concludes, these measures “represent an attempt by the current U.S. administration to exploit the COVID-19 pandemic crisis in the service of a long-term political goal to limit asylum seeking at the southern border.”
Such actions aren’t limited to endangering asylum seekers from Central and South America, either. Remember our opening story? In 2013, Vijayakumar Thuraissigiam assisted a local Tamil politician with his election campaign in Sri Lanka. For his trouble, he was abducted from the fields of his own farm. He was blindfolded, tossed into a white van, taken to another location where he was questioned and dunked repeatedly into a well. Then he was beaten with wooden sticks to the point that he had to spend 11 days in hospital. He escaped Sri Lanka and eventually made his way to Mexico where in February 2017 he crossed the border into the United States illegally. Upon getting arrested almost immediately, Thuraissigiam presented himself as an asylum seeker.
After a brief review of his claim where Thuraissigiam was not allowed an attorney, the asylum officer, who believed his story, nonetheless denied him asylum. That denial was then repeated by an immigration judge, who considered Thuraissigiam’s case for a grand total of 13 minutes. Both the officer and the judge concluded Thuraissigiam didn’t have sufficient fear of persecution in his home country. The ACLU later concluded that the officer had insufficient understanding of the conditions in Sri Lanka to make an accurate judgment. So he was placed under order for speedy deportation without federal judicial oversight — a policy of expedited removal the Trump administration has sought to significantly expand — and sent back to Sri Lanka a month after arriving.
The ACLU, however, took on Thuraissigiam’s case, arguing that he was denied Constitutional access to a federal court. The ACLU won that case but the Trump administration appealed it, so his case went to the Supreme Court. Sadly, on June 25th, the Supreme Court ruled 7–2 against Thuraissigiam, deciding that asylum seekers have no right to a federal court hearing. Justice Samuel Alito argued that even without judicial review “the credible-fear process and abuses of it can increase the burdens currently ‘overwhelming our immigration system.’” Though Justices Sonia Sotomayor and Elena Kagan did dissent, the ruling made no mention of the international law breached by this United States policy.
On a larger scale, the 2020 Human Rights Watch report “Deported to Danger” details how the United States has refused Salvadoran refugees, knowing they could be harmed or killed upon return to El Salvador. Under the Obama and Trump administrations, the U.S. granted only 18.2 percent of Salvadorans refugee status from 2014 to 2018 in contrast to 36.5 percent in Mexico and up to 75 percent in other Central American countries. Human Rights Watch found that at least 138 Salvadorans were murdered after they were deported from the U.S. since 2013. Since there are no official numbers, however, the true tally is likely much higher. “The United States has to have known this was happening,” argues one of the report’s authors, Elizabeth Kennedy, “because the cases were publicly reported and more importantly because Salvadorans make it clear in asylum applications that this is their reality. But this reality is ignored or not believed by U.S. authorities.”
Similarly, despite criticising Venezuela’s President Nicolás Maduro and signaling support for the opposition government, the Trump administration refuses to accept Venezuelan refugees seeking humanitarian protections at our border. Instead, asylum seekers are often required to stay in Mexico under the “Remain in Mexico” policy and asylum seeking families have been separated at the border if they try to cross the border.
Finally, it’s not only Border Patrol and Customs agents who prove responsible for placing asylum seekers in danger. Consider also the case of Judge Agnelis L. Reese, the Oakdale, Louisiana judge who denied over 200 asylum seekers in the proceedings she oversaw before she retired from the bench in 2018. The journalist Noah Lanard recounts a story in which Reese berated an Eritrean asylum seeker, suggesting he lied to asylum officers by not disclosing earlier that he had been sexually abused by his captors. “[W]hat do you think Jesus thought about that?” she asked. Judge Reese’s rulings likely breach both the Refugee Convention and the Convention Against Torture. Attaining asylum in Louisiana generally proves difficult, as the state denies 84 percent of applicants. By contrast, asylum seekers in Elizabeth, New Jersey are granted asylum at a rate of 44 percent. Noah Lanard concluded, “Asylum seekers come to the United States prepared to tell stories of persecution, fear, and torture, but their fate often depends less on their credibility than on luck.”
As we’ve seen via the recent ruling on Department of Homeland Security et al v. Thuraissigiam, the Supreme Court can’t be relied upon to uphold international law either. Neither was that the first time SCOTUS ignored international law. In the 1992 case of INS v. Elias-Zacarias, the Court decided that a Guatemalan asylum seeker Jairo Jonathan Elias-Zacarias did not qualify as a refugee because he did not prove that the threats against him were politically motivated. Justice Scalia’s majority opinion did not mention international law and ignored the amicus brief supporting Elias-Zacarias submitted by the United Nations High Commissioner for Refugees (UNHCR). A year later in Sale v. Haitain Centers Council, Inc, the Supreme Court ignored the 1951 Convention’s directives, when it ruled in favor of George H.W. Bush’s executive order to intercept asylum seekers at sea. The UNHCR described this ruling as “a setback to modern international refugee law which has been developing for more than forty years.”
In addition to judges who deny asylum seekers safety, also consider the lawyers, who defend and enable these practices, quibbling, for example, over the definition of “safe and sanitary conditions” to defend keeping toothbrushes, soap and blankets from migrant children. Some of these actions may not breach international law, but they all contribute to a climate, which endangers the health and well-being of migrants and asylum seekers. Either way, even American critics of these actions seldom argue that individuals should be brought to justice by enforcing relevant international laws the United States has agreed to.
To address these issues, the United States should make changes in policy and practice to align with those international laws the U.S. has already agreed to. Federally, such changes are unlikely to come under the Trump administration. However, individual cities and states can still refuse to enable the administration’s directives.
Though unlikely in the near term, bringing criminal charges against some representative individuals within United States courts could aid in curbing these violations. Customs and Border Patrol, ICE, and detention center employees, as well as judges and other individuals could be held accountable for their actions and for the conditions at many facilities. However, Congress, the Supreme Court, and U.S. courts generally would have to more assiduously pursue adherence to the relevant international laws, which the United States has not only signed onto but in many cases has even converted into domestic law.
If U.S. courts fail to act, however, activists and human rights organizations could share violations with bodies such as the United Nations Human Rights Council to trigger human rights investigations. Furthermore, if individuals responsible for implementing these policies are unlikely to be tried in the U.S., upon traveling to other countries, they could be prosecuted in foreign courts via the principle of universal jurisdiction for human rights violations.
Additionally, Kate Cronin-Furman suggests the American Bar Association could review lawyers — just as the American Medical Association reviews physicians — and discipline them for supporting breaches of international law. She even suggests that Customs and Border Protection “agents’ actions should be publicized, particularly in their home communities,” not to dox them, but to expose “their participation in atrocities to audiences whose opinion they care about.”
In addition to simple human concern for the lives of at-risk migrants, we have an obligation enshrined in the United States Constitution to follow the international laws we have ratified concerning asylum seekers at our borders and the treatment of migrants coming here in general.
Consequently, the United States is obligated to examine how its policies affect these individuals and then both to alter those policies to ensure they align with international law and to address the criminal behavior of the individuals, who are enacting these policies.
I completed a version of this essay as a final paper for the class International Criminal Law and Human Rights at New York University in early 2020. I’m including the bibliography below to share my sources and to encourage further discovery on this topic. Wherever possible, I’ve also linked to this research throughout. I’d like to thank Professor Carla De Ycaza for her guidance with this work.
“ACLU and Jewish Family Service File Administrative Complaint on Behalf of Migrant Woman Who Gave Birth at Border Patrol Station,” ACLU San Diego and Jewish Family Service, 8 April 2020.
“American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis,” Harvard Law Review, 9 March 2018.
Carpenter, Charlie. “Trump’s Asylum Policies — and the Troops Who Enforce Them — Are Breaking the Law,” Foreign Policy, 7 August 2019.
Convention and Protocol Relating to the Status of Refugees, UNHCR, 1951, PDF file.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Human Rights Office of the High Commissioner.
Cronin-Furman, Kate. “The Treatment of Migrants Likely ‘Meets the Definition of a Mass Atrocity,’” The New York Times, 29 June 2019.
“Deported to Danger,” Human Rights Watch, 5 February 2020.
Dickerson, Caitlin. “Confusion on the Border as Appeals Court Rules Against Trump’s ‘Remain in Mexico’ Policy,” The New York Times, 28 February 2020.
Dickerson, Caitlin. “‘There Is a Stench’: Soiled Clothes and No Baths for Migrant Children at a Texas Center,” The New York Times, 21 June 2019.
“FAQ: The Convention Against Torture,” ACLU.
Fernandez, Manny. “Lawyer Draws Outage for Defending Lack of Toothbrushes in Border Detention,” The New York Times, 25 June 2019.
Hernández, Arelis R. “Venezuelans seeking asylum present unique challenge to Trump administration,” Washington Post, 27 February 2020.
Higgins, Eoin. “US Has Knowingly Sent Migrants and Refugees to Danger in El Salvador for Years: Report,” Common Dreams, 5 February 2020.
“Immigration and Naturalization Service v. Cardoza-Fonseca,” 480 U.S. 421, Supreme Court of the United States, 1987.
“Immigration and Naturalization Service v. Elias-Zacarias,” 502 U.S. 478, Supreme Court of the United States, 1992.
Lanard, Noah. “Inside the Courtroom Where Every Asylum Seeker Gets Rejected,” Mother Jones, September/October 2019.
Moore, Robert. “In El Paso, Border Patrol Is Detaining Migrants in ‘a Human Dog Pound,’” Texas Monthly, 11 June 2019.
Morrissey, Kate. “Complaint filed on behalf of woman who gave birth in Chula Vista Border Patrol station,” Los Angeles Times, 8 April 2020.
Mukpo, Ashoka. “From Being Tortured in Sri Lanka to the U.S. Supreme Court,” ACLU, 24 February 2020.
“Refugee Act of 1979,” US Code, S643. Congress.gov, 1980.
Romo, Vanessa. “U.S. Supreme Court Allows ‘Remain in Mexico’ Program to Continue,” NPR, 11 March 2020.
“Sale v. Haitian Centers Council, Inc.,” 509 U.S. 155, Supreme Court of the United States, 1993.
Schacher, Yael and Chris Beyer. “Expelling Asylum Seeker Is Not the Answer: U.S. Border Policy in the Time of COVID-19,” Refugees International, 27 April 2020.
Serwer, Adam. “A Crime by Any Name,” Atlantic, 3 July 2019.
Sidahmed, Mazin. “Four ICE Detainees Test Positive for COVID-19 in Batavia Detention Facility,” Documented, 9 April 2020.
Sukin, Lauren. “The United States Treats Migrants Worse Than Prisoners of War,” Foreign Policy, 26 July, 2019.
Thompson, Gabriel. “Your Judge Is Your Destiny,” Topic, July 2019.
Totenberg, Nina. “Supreme Court Considers Writing Itself Out of Speedy Deportation Cases,” NPR, 2 March 2020.
United States Constitution. Art. VI.
Woltken, Maria. “The White House Is Quietly Deporting Children,” The New York Times, 22 June 2020.