In Could 1939, a ship known as the St. Louis departed from Hamburg, Germany, with 937 passengers, most of them Jews fleeing the Holocaust. That they had been promised disembarkation rights in Cuba, however when the ship reached Havana, the federal government refused to let it dock. The passengers made determined pleas to the U.S., together with on to President Franklin D. Roosevelt, to permit them entry. Roosevelt by no means responded. The State Division wired again that they need to “wait their flip” and enter legally.
As if that have been a sensible choice accessible to them.
After lingering off the coast of Florida hoping for a merciful choice from Washington, the St. Louis and its passengers returned to Europe, the place the Nazis have been on the march. In the end, 254 of the ship’s passengers died within the Holocaust.
In response to this shameful failure to offer safety, the nations of the world got here collectively and drafted a global treaty to guard these fleeing persecution. The treaty, the 1951 Refugee Convention, and its 1967 Protocol, has been ratified by more than 75% of countries, together with the US.
As a result of the tragedy of the St. Louis was contemporary within the minds of the treaty drafters, they included an unequivocal prohibition on returning fleeing refugees to international locations the place their “life or freedom could be threatened.” That is understood to ban sending them to a rustic the place they’d face these threats, in addition to sending them to a rustic that may then ship them on to a 3rd nation the place they’d be at such threat.
All international locations which can be events to the Conference and Protocol Referring to the Standing of Refugees are certain by this prohibition on return (generally referred to by its French translation, “nonrefoulement”). Within the U.S., Congress enacted the 1980 Refugee Act, expressly adopting the treaty language. The U.S. can also be a celebration to the Convention Against Torture, which prohibits the return of people to locations the place they’d be at risk of “being subjected to torture.”
In each Trump administrations, there have been a number of methods wherein the president has tried to eviscerate and undermine the protections assured by treaty obligation and U.S. regulation. Essentially the most drastic amongst these measures have been the near-total closure of the border to asylum seekers and the suspension of entry of already authorized and vetted refugees.
Nevertheless, none of those measures has appeared so clearly designed to make a mockery of the post-World Warfare II refugee safety framework because the administration’s proposals and attempts to ship migrants from the U.S. to Libya and Rwanda.
Though there are conditions wherein the U.S. might lawfully ship a migrant to a 3rd nation, it might nonetheless be certain by the duty to not return the particular person to a spot the place their “life or freedom could be threatened.” The alternatives of Libya and Rwanda — quite than, for instance, Canada or France — can solely be learn as an intentional and open flouting of that prohibition.
Libya is infamous for its abuse of migrants, with widespread infliction of torture, sexual violence, pressured labor, hunger and slavery. Main advocacy teams corresponding to Amnesty Worldwide name it a “hellscape.” The United Nations Excessive Commissioner for Refugees has acknowledged in no unsure phrases that Libya is not to be considered a safe third country for migrants. The U.S. is clearly conscious of situations there; the State Division issued its highest warning level for Libya, advising towards journey to Libya due to crime, terrorism, civil unrest, kidnapping and armed battle.
Though situations in Rwanda will not be as excessive, the supreme courts of each Israel and the United Kingdom have dominated that agreements to ship migrants to Rwanda are illegal. The 2 international locations had tried to outsource their refugee obligations by calling Rwanda a “protected third nation” to which asylum seekers may very well be despatched to use for defense.
Israel and the U.Ok.’s highest courts discovered that Rwanda — opposite to its acknowledged dedication when coming into these agreements — had in actual fact refused to contemplate the migrants’ asylum claims, and as an alternative, routinely expelled them, ensuing of their return to international locations of persecution, in direct violation of the prohibition on refoulement. The U.K. court additionally cited Rwanda’s poor human rights document, together with “extrajudicial killings, deaths in custody, enforced disappearances and torture.”
If the Trump administration had even a minimal dedication to abide by its worldwide and home authorized obligations, plans to ship migrants to Libya or Rwanda could be a nonstarter. However the plans are very a lot alive, and it isn’t far-fetched to imagine that their intent is to further undermine internationally agreed upon norms of refugee protection relationship to World Warfare II. Why else select the 2 international locations which have repeatedly been singled out for violating the rights of refugees?
As in Israel and the U.Ok., there can be court docket challenges ought to the U.S. transfer ahead with its proposed plan of sending migrants to Libya and Rwanda. It’s onerous to think about a court docket that might rule that the U.S. wouldn’t be in breach of its authorized obligation of nonrefoulement by delivering migrants to those two international locations.
Having stated that, and regardless of the clear language of the treaty and statute, it has turn into more and more tough to foretell how the courts will rule when the Supreme Courtroom has issued decisions overturning long-accepted precedent, and decrease courts have arrived at diametrically opposed positions on a few of the most contentious immigration points.
In occasions like these, we should always not rely solely on the courts. There are numerous of us right here within the U.S. who consider that the world’s refugee framework — developed in response to the profound ethical failure of turning again the St. Louis — is price combating for. We have to take a vocal stand. The clear message have to be that these fleeing persecution ought to by no means be returned to persecution.
If we take such a stand, we can be within the good firm of these who survived the Holocaust and proceed to talk out for the rights of all refugees.
Karen Musalo is a regulation professor and the founding director of the Heart for Gender and Refugee Research at UC Regulation, San Francisco. She can also be lead co-author of “Refugee Regulation and Coverage: A Comparative and Worldwide Method.”
