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Trump’s Asylum Policies—and the Troops Who Enforce Them—Are Breaking the Law
Under U.S. domestic and international law, public servants locking up immigrants at the border could be prosecuted.
Only 24 hours after a suspected anti-immigrant terrorist killed 20 people in El Paso, echoing U.S. President Donald Trump’s rhetoric about a “Hispanic invasion,” Customs and Border Protection-West Texas tweeted that its agents “have returned to their regular duties.” These duties include implementing a policy that treats asylum-seekers as “invaders” and criminals—instead of as vulnerable civilians exercising their human rights—and that deprives asylum-seeking civilians of their liberty while also aiming to keep refugee families on the Mexico side of the border.
Public officials who carry out these commands, including the 6,600 U.S. troops now deployed to assist in the task, are not only enabling policy that harms civilians and that is widely seen as inhumane and immoral. They are also violating the law. The U.S. Constitution guarantees due process, equal treatment, and humane treatment for all people in the country, not just U.S. citizens. Beyond that, these agents are being asked to commit crimes that violate international human rights law. If they follow these orders, they are vulnerable to prosecution.
The United States’ current asylum policy violates not just U.S. Constitutional provisions, but potentially also three international treaties that the United States has signed and ratified: the 1967 Refugee Protocol, which guarantees the human right to seek asylum; the Convention Against Torture, which prohibits deporting asylum-seekers to places where they may face bodily harm; and the Geneva Convention on the protection of conflict-affected civilians, which requires humane treatment for civilian detainees, even in war.
The 1951 Refugee Convention also establishes the right to seek asylum as a fundamental human right and criminalizes the forced return of asylum-seekers to places where they would face persecution, torture, or violence. The convention states that these rights are to be applied “without any geographic limitation”—meaning, among other things, asylum-seekers should need not cross at an official port of entry nor seek asylum in the first country they reach, as the United States has started requiring.
The United States has ratified the 1967 protocol to this treaty, which incorporates much of the original version. It also establishes a positive obligation to receive asylum-seekers, process their claims, award refugee status to those with a well-founded fear, and provide succor and assistance in the interim. According to both the United Nations and U.S. human rights organizations, detention of asylum-seekers as a group, simply for crossing a border at the wrong place, violates the human right to seek asylum, as well as asylum-seekers’ right to freedom of movement. Meanwhile, forcibly returning asylum-seekers to countries where they face torture—as a judge who has denied all asylum requests that have passed her desk almost certainly has done—or forcing them to remain in danger instead of crossing to safety, violates not only the Refugee Convention but also the Convention Against Torture.
Moreover, even for those asylum-seekers who might be lawfully detained due to committing a true criminal offense or posing a genuine security threat, the United States must provide them with due process (including timely, public trials) and humane conditions of detention. Yet as Stanford University Ph.D. candidate Lauren Sukin points out, migrants in detention receive far worse treatment than what is allowed for one’s worst enemies in a war under the 1949 third Geneva Convention—and, in some cases, worse than what the United States’ own enemies have inflicted on Americans.
Although the widely known third Geneva Convention governs prisoners of war, in 1949, the United States also ratified a separate, lesser known fourth Geneva Convention governing civilian wartime detainees. The civilians convention requires similar treatment for civilian detainees, including special consideration for the wounded and sick; adequate food, shelter, and facilities; due process; families kept together; and that detainees be permitted to correspond with the outside, be visited by human rights organizations, and be ministered to by those of their faith. Many U.S. detention camps fail to meet several of these criteria, including McAllen, Clint, and Paso del Norte, where an interfaith group of clergy was turned away recently after offering to minister to the detainees.
More fundamentally, under these conventions, civilians should not be detained at all unless they have committed a crime or, as individuals, represent a security threat. The vast majority of asylum-seekers do not—and collective punishment of entire groups based on their nationality is prohibited under this treaty, and many other human rights instruments besides.
Neither the POW nor the civilians convention technically applies on the southern U.S. border, since it is not an arena of international armed conflict. Still, the United States is treating the border like a conflict zone by sending in military troops and declaring a zone of military law—something only justifiable where war law applies. Further, even absent a state of full-blown war, Article 3 of the civilians convention still provides a minimal standard of treatment, including prohibiting “cruel, humiliating and degrading treatment, the taking of hostages and unfair trials.” Arguably, the facilities on the southern border don’t even meet that baseline, when children are forced to sleep on concrete without blankets, are taken from their parents to coerce parents into abdicating their human right to asylum, or are put before asylum judges without lawyers or interpreters.
Even in peacetime, the widespread and systematic violation of a civilian populations’ rights under international law is considered a crime against humanity and prohibited for all states under customary international law. According to Article 7 of the treaty where this term is now codified, “crimes against humanity” include not just the kind of atrocities many associate with the Holocaust, but a variety of other acts, when committed on civilians “pursuant to or in furtherance of a State or organizational policy.” According to the Rome Statute of the International Criminal Court, acts that might be considered crimes against humanity include “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” and “inhumane acts … intentionally causing great suffering, or serious injury to body or to mental or physical health.”
Consider: Thousands of people have been imprisoned for no crime other than exercising their human right to seek asylum. Over 25 detainees have died in custody, several of them children. Those still alive have experienced overcrowding, inadequate medical care, starvation diets, separation from their family members, mental trauma, freezing temperatures, sleep deprivation, and sexual assault. Those last three have been considered torture by many courts. And according to Kate Cronin-Furman, at University College London, taken together they meet the definition of mass atrocity.
Border Patrol, Customs and Border Protection, and Immigration and Customs Enforcement agents have taken an oath to the Constitution. The Fifth Amendment requires due process for all persons accused of a crime; the 14th Amendment requires equal rights for all persons. But also, under Article 6 of the U.S. Constitution, treaties the United States has signed and ratified represent the supreme law of the land. These treaties include the Refugee Convention, fourth Geneva Convention, and Convention Against Torture. And crimes against humanity are prohibited whether or not a state has signed the Rome Statute. Agents who argue that they are “only following orders”—as I heard some say at the border—need to understand that they, and not just political leaders, can be personally held criminally liable for failing to uphold this oath.
Military troops are bound by the Uniform Code of Military Justice, which requires them to disobey unlawful orders such as subjecting detainees to inhumane conditions. The United States’ Manual for Courts-Martial rules out “just following orders” as a legitimate defense for acts that reasonable people might see as wrong. A June poll found a majority of Americans acknowledge that the conditions at these detention facilities are inadequate and unsanitary, and 26 percent of Americans across the political spectrum would compare them to concentration camps—indeed, they fit the dictionary definition.
Civilian officials carrying out human rights violations against civilians could also be prosecuted in domestic or international court for crimes against humanity. Numerous countries worldwide have established human rights trials in the wake of a government transition to punish not only leaders but also those who carried out their orders. And even if that never happened domestically, U.S. public servants could be subject to prosecution in any country where they might travel under the Nuremberg principles, which state the “just following orders” defense does not cover crimes against humanity. Originally used to try the Nazi guards, these principles are now used to prosecute many abuses falling short of Holocaust-style death camps. And the law of universal jurisdiction allows such trials to happen anywhere.
Whether military or civilian, public servants must uphold the Constitution and the treaties the U.S. government has signed. And they must disobey orders that violate fundamental international human rights standards. They should take their obligation to refuse, possibly resign, speak out, and encourage others to do the same seriously—as some agents such Jenn Budd have already started doing. More fundamentally, U.S. leaders should not put public servants in such a dangerous position in the first place.