Migrant Worker Women Advancing Gender Equity through the USMCA

Men only, 1835 years old. 

In 2021, seeing a job posting with those words is startling. Shocking even. But more than a year into a world-changing pandemic that has pushed millions of women out of paid work, U.S. employers continue to discriminate against women, posting ads like that one. To evade legal consequences, U.S. businesses discriminate in Mexico, hiring men to work in the United States with temporary H-2 guestworker visas while turning women away. Other U.S. businesses discriminate by hiring women but channeling them into lower-paying jobs with poorer conditions than those they hire men for. Although the U.S. government knows that H-2 employers discriminate against women, it has done little to stop them. 

For more than fifteen years, since I founded Centro de los Derechos del Migrante, Inc. (CDM)—the first transnational workers’ rights organization based in Mexico and the United States—I have heard from women in Mexico about patterns of abuse in the U.S. H-2 programs. Migrant women have courageously spoken out about blatant discrimination in H-2 recruitment and hiring, sexual harassment and other violence against women at work, unfair pay, and unlawful working conditions. Women report discrimination in industries ranging from Maryland’s blue crab processors to fruit and vegetable sorting. Sex discrimination persists in H-2 labor supply chains even though U.S. law prohibits employers and labor recruiters from discriminating against women. Laws prohibiting discrimination protect all women who work in the United States, even if businesses hire them outside of the country.

Today, migrant women continue the fight for gender justice. In March, in honor of Women’s History Month, CDM and workers’ rights organizations across North America joined migrant women in filing the first viable state-to-state complaint under the new United States-Mexico-Canada trade agreement (USMCA). The USMCA’s labor chapter, Article 23, requires the United States to enforce its anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In failing to root out discrimination in H-2 recruiting, hiring, and employment and neglecting to ensure gender equity in the program, the United States is violating Article 23. 

In the complaint, we collectively make three demands:

  1. The U.S. government must end sex discrimination in the H-2 guestworker programs once and for all.
  2. The government must ensure that all workers have access to Legal Services Corporation-funded civil legal services. (Without lawyers working in solidarity with them, it is nearly impossible for migrant women to access justice through U.S. courts.)
  3. The government must investigate discrimination complaints from women in the H-2 program under Title VII of the Civil Rights Act, rather than ignoring or summarily dismissing them.

And to increase pressure on the Administration, we are filing a supplemental complaint with Professor Sarah Paoletti, a Practice Professor of Law and the Director of the Transnational Legal Clinic at the University of Pennsylvania School of Law. The supplement will address the U.S. government’s obligations under the ILO and international human rights law to end discrimination in the H-2 program.

We have reasons to be hopeful that the USMCA can serve as a tool to improve access to transnational justice for migrant workers. Unlike NAFTA—the old trade agreement with its toothless labor side accord—the USMCA has a mechanism for migrant workers and their advocates to push governments to comply with labor and employment laws—or face sanctions. Concretely, this means that the U.S. government may face sanctions if it maintains the status quo and ignores the grave abuses that the petitioners report in the H-2 program. It means that the U.S. Equal Employment Opportunity Commission must end its practice of failing to investigate and meaningfully respond to migrant women’s discrimination complaints. And it means that the U.S. Departments of Labor and Homeland Security must stop allowing H-2 employers to discriminate without consequences. In receiving and reviewing our petition, the governments are legally responsible for showing us that they meant what they said about protecting migrant workers’ and women’s rights when they signed the agreement. 

The historic process for the migrant women petitioners began in Mexico, where we filed the USMCA complaint with the Mexican government. Mexico formally accepted the complaint and is now investigating discrimination and other abuses in the agricultural and protein processing industries, the industries in which the petitioners work. Earlier this month, Mexico asked the United States to honor its obligations under the USMCA and invited cooperation in doing so. And now the Biden-Harris Administration has the opportunity to make good on the promise of the USMCA and proactively address the urgent issues we raise in the complaint.

For too long, U.S. businesses have used the H-2 programs to bypass our civil rights and labor laws. Left without government oversight, H-2 employers have enacted their sexist, racist, and ageist ideas about the kinds of workers who maximize profitability. Sex discrimination in the H-2 program harms not only migrant women from Mexico but also U.S.-based workers. 

Over the next year, as we rebuild the U.S. economy for a sustainable and equitable recovery, justice for migrant women must be at the fore of the government’s labor and employment policies and practices. And next Women’s History Month, we look forward to celebrating meaningful, sustainable reforms in the H-2 program that will end discrimination against migrant women and promote access to justice. 

We would be grateful for your support in standing with migrant worker women to fight against discrimination. Please email me (rachel@cdmigrante.org) to join the supplemental complaint on the U.S. government’s obligations under the ILO or to submit an amicus in support of migrant worker women. 

Violence, Justice, Equity: Reflections on International Women’s Day

On this International Women’s Day (IWD), the official UN theme for 2021 is “women in leadership: achieving an equal future in a COVID-19 world.” The elimination of discrimination and violence against women and girls are targets of the Millennium Development Goals and the UN Agenda 2030, which emphasizes inclusivity in its Sustainable Development Goals (SDGs), including gender equality and the empowerment of all females in Goal 5. Goal 10 aims to reduce gender and socioeconomic inequalities globally, including through the elimination of discrimination, violence, exploitation, forced marriage, and female genital mutilation.

Dating back to the first celebration in 1909 in the United States, IWD is rooted in socialist women’s leadership in struggles for labor and economic justice, such as the 8-hour workday and limits on women’s and children’s labor; political justice, such as suffrage and liberation from fascism and autocracy; a refusal to sacrifice husbands and children to wars; and breaking down false barriers between “public” and “private” life that conceal the important roles of mothers and wives. Women’s efforts against poverty and violence have also been consistent IWD themes, including the structural violence of female subordination—“a tolerance of violence against women and children” and being “subjected to a life of sub-humanity for the sheer fact alone that they were born female,” as noted on IWD 2012.

To imagine a gender-equitable future from this historical moment in 2021 requires reckoning with how women and girls have been faring. For instance, since the start of the pandemic in the US women—disproportionately women of color—have left the work force at four times the rate of men, reversing previous gains. One of the more well-known outcomes of the COVID-19 pandemic is the escalation of domestic violence and sexual and gender-based violence (SGBV), triggered by prolonged social isolation, household tension in close quarters, and increasing strains on individuals and families due to deteriorating health, socio-economic, and/or political conditions. The “Forever Wars” and other conflicts around the world have also raged on during the pandemic, adding to the world’s refugee crisis in which 75-80% of displaced persons are women and children. Trauma is understandably a common preoccupation of our time.

Working at the intersection of human rights and trauma mental health, I have spent the last year writing about SGBV and trauma-informed approaches to interviewing female survivors for purposes of investigating human rights violations such as genocide, crimes against humanity, war crimes, and mass detention of people seeking refuge from violence and poverty. Among multiple things competing for our attention, mine has been focused intensely on militarism, conflict-related SGBV, impunity, and feminist activism amidst growing societal & global inequities and increasing violence in many forms—criminal, sexual, domestic, and political—during the pandemic. In the ongoing and escalating struggle for gender justice, urgent attention to violence remains important. Among the types of violence and harm SGBV stands out for several reasons. It is the only serious crime for which many justice systems require victims to prove lack of consent to the harm inflicted. Across diverse legal systems, redress for SGBV is difficult to attain due to attribution of blame and complicity to victims/survivors as well as impunity for perpetrators. SGBV has also historically been the least punished offense committed during wartime.

In the long history of international feminist activism, it is only recently that women’s efforts led to the recognition of conflict-related SGBV as a war crime against the long-standing idea that sexual violence against women, girls, men, and boys is an expected military reward or byproduct of war. Women’s campaigning for redress of this injustice, through UN human rights and women’s rights conferences and particularly since the 1990s International Tribunals for Rwanda and the Former Yugoslavia, resulted in its designation as a crime against humanity. “From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime,” said Judge Pillay of the International Criminal Tribunal for Rwanda (later, the UN High Commissioner for Human Rights).

However, all forms of SGBV persist, supported by strong ideological underpinnings: state-supported violence, militarized masculinity, and victim-blaming alongside perpetrator impunity. These thrive in a broader context of social, economic, civil, and political inequities. SGBV is founded on sexist beliefs and compounded by other structural inequalities in the context of globalized discourses of militarized masculinity that merge sex and violence, and which are amplified through warfare. The globally pervasive threat of SGBV reduces the quality of life for targeted persons—disproportionately women, girls, and gender non-conforming persons—and is particularly acute in hyper-masculinist institutions in which sexual assault rates are often highest, such as in militaries. Conflict-related SGBV inflicts collective trauma by systematically targeting individual bodies in furtherance of broader social harms such as the mass displacement, dispossession, and extermination of entire neighborhoods and communities. Female survivors of conflict-related SGBV have reported feelings of complete insecurity and multiple losses: bodily integrity, health, loss of family and their livelihoods, disorientation and lack of belonging, profound dispossession of their personal identity, and marginalization.

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The Black and White Campaign in Turkey and its Repercussions Amidst Rising Femicides and an Increasing Hostility Towards the Istanbul Convention

Pinar Gültekin a 27-year-old University student was brutally beaten and burned to a crisp by her ex-boyfriend on 21stJuly 2020 in Turkey adding to the country’s long list of femicides. The victim was reported missing for six days before being found dumped in a bin strangled to death by her former partner for disagreeing to reconcile with him. 

While the news of Gültekin’s death ignited demonstrations all across the country and women and men alike took to the street’s, the death of Pinar and similar atrocities against women in Turkey inevitably raises a few questions. What should happen when a 27-year-old girl is strangled to death and burned to a crisp by her ex-partner? What are the repercussions of a mother being stabbed to death by her husband in a café in front of her child? What happens when a girl is stabbed and burned to her death because she resists rape? What happens when the mysterious death of an eleven-year-old girl is deemed “suicide” by the judiciary. Maybe the answer to the above-mentioned questions lies not in what happens but how it happened or who/what perpetrated the incidents. While the atrocities may be perceived by some as interpersonal their prevalence only against a particular section of the community indicates towards an institutionalisation of violence abetted by a chauvinist patriarchal society. 

Violence against women existed long before the expression “femicide” was devised in 1976 by Diana E. Russell at the first “International Tribunal on Crimes Against Women in Brussels, Belgium”. While the term is defined by the “United Nations Office in Drugs and Crime”as the gender-based homicide of women it not just refers to the killing of women but condones an entire system of Judicial administration that fails to safeguard the women and prosecute the perpetrators. The concept is similar to “rape culture” except applying only in cases of murder concerning a women’s sexual orientation, indigenous identity, dowry-related issues. However, contrary to majority perception the acts under no circumstances are unrelated and spasmodic but is abetted by a chauvinistic society exhibiting unequal power structures and conventionally defined gender roles where women often find themselves pushed to the margins. Encouraged by Right-Wing Populist Parties the above-mentioned manifestations of violence against women in Turkey has increased exponentially over the decades.

The misogynistic heteronormative dogmas embedded in the social fabric of Turkey gets exemplified by the Global Study on Homicide, 2018 conducted by the “United Nations Office on Drugs and Crime” which reportedly delineated the death of 89,000 women in Turkey in 2017. Turkey has been ranked114 of 167 countries in the “Women, Peace and Security Index, 2019” and 130thof 149 countriesin “WEF’s the Global Gender Gap Index, 2020”. The data is at face value enough to glean the status and treatment of women in the country. 

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To Detain or Not to Detain? Deciphering Detention in Non-international Armed Conflicts

Internment is a frequent occurrence in armed conflicts. Particularly in the aftermath of the litigation surrounding the Guantanamo Bay detention facility and the US’s justification for the displacement of human rights norms, questions about its authority to detain individuals in non-international armed conflicts (“NIACs”) received increased attention. This post will take a closer look at these questions – in particular, the legal basis for detention in NIACs under international humanitarian law (“IHL”) and human rights law (“IHRL”).

In international armed conflicts (“IACs”), the detention regime is sufficiently grounded in the Geneva Conventions. Articles 21 and 4A of the third Geneva Convention confer on states a right to detain prisoners of war, only so long as the circumstances that made internment necessary continue.

In comparison, in NIACs, the IHL basis itself is debatable. For one, the Geneva Conventions do not authorise detention or even prescribe procedures to challenge detention in NIACs. At most, Common Article 3 regulates the treatment of persons deprived of their liberty and Articles 5 and 6 of Additional Protocol II contemplate that internment occurs in an NIAC. This is not to say that contrary views don’t exist. Goodman constructed a case for why IAC rules on detention can be extended by analogy. Goodman reasoned that IHL itself permits States to a fortiori undertake those practices in an NIAC that they can implement in an IAC. However, this argument is not completely reasonable since some NIAC rules are arguably more restrictive, in that they divest ‘fighters’ of privileges that they would otherwise enjoy in IACs – whether it is combatant immunity or rules of targeting.

This question came up before the British High Court in the Serdar Mohammed case. The claimant alleged that his capture and detention by Her Majesty’s armed forces in Afghanistan, from 7 April 2010 till 25 July 2010, was unlawful because it exceeded the authorized period of detention as per the arrangement between Her Majesty’s armed forces and the State of Afghanistan. This amounted to a breach of his right to liberty under Article 5 of the European Convention of Human Rights (“ECHR”). In response, the Secretary of State argued that Article 5 of the ECHR was not the correct legal basis here, since IHL rules on detention in NIACs displace or modify the ECHR. To establish that IHL permits detention in NIACs, the Secretary of State theorized that the implicit power to kill those participating in hostilities in an NIACSs would have to logically encompass the power to detain. However, the Court rejected this argument noting that it was not convinced that the regulation of restrictions of right to life under IHL could be read as an ‘authorization’ to kill. Even if it is, the power to kill does not go further than justifying the capture of a person who may lawfully be killed.

The Secretary of State also suggested that the norms of IACs under the Geneva Conventions and Additional Protocols could be transposed to NIACs by analogy. However, the Court was not sympathetic to this proposition either. Mainly because the drafting history of the Geneva Conventions reflected a clear intent not to authorise detention in Common Article 3. The drafters feared that such a power would enable insurgents to claim that they would also be entitled to detain captured members of the government’s army by operation of the principle of equality of belligerency.

Upon appeal, the British Supreme Court employed alternative reasoning to authorize detention. Instead of IHL, the Court grounded its ruling in IHRL. The Court essentially followed the Hassan case, where the applicant’s brother was detained in Iraq by British forces for over 6 months in 2003.  The applicant’s primary contention was that the Geneva Conventions, in so far as they applied to the NIAC in Iraq at the time, did not permit the British forces to act in violation of Article 5(1) of the ECHR. There the European Court of Human Rights (“ECtHR”) found that Article 5(1) of the ECHR, which permits detention on six permitted grounds, can also invoked to authorize detention during international armed conflicts. The only caveat the Court added was for such detention to not be unduly broad, opaque or discretionary. The Court in Serdar Mohammad went one step further, to extend Article 5(1) to NIACs.

Fortunately, in so doing, the British Supreme Court did not displace IHL completely (an erstwhile view that met with much censure). It chose instead to marry IHRL with IHL. Nonetheless, the decision must still be viewed with caution. For one, it offers little justification for why State parties should not invoke the ECHR’s derogation clause under Article 15.

Moreover, the Court in Serdar Mohammed did not engage with the past jurisprudence of the ECtHR on detention in NIACs where the only condition on which detention was allowed was if there was a clearly worded Security Council resolution to support such detention. Even if the requirement of a resolution is seen as dispensable, it is callous to ignore the requirement of explicitness – either in the IHRL/IHL treaty or in State support (in case the position attains customary status).

With treaty language such as that in the ICCPR (illustratively, Article 9 only proscribes arbitrary arrest or detention), it is easier to cull out an IHRL basis for detention. However, this task is far more onerous when it comes to the ECHR – which does not contain harmonizing language per se. Till such time as explicit authorization is missing, States should strive to comply with the rule of derogation. To ensure effective compliance, international courts should also work towards setting a baseline below which rights cannot be derogated from, thereby protecting the integrity of the IHRL/IHL treaty and identifying the minimum rights that States are bound to afford to those within their jurisdiction.


China’s Liability for Uighur Genocide Under International Law- Part I

Introduction

In the past few months, there has been an increased focus on China’s treatment of Uighur Muslims in the north-western city of Xinjiang.  Beijing has employed an elaborate policy that seeks to prevent Uighur Muslims from practicing their religion as well as their culture. Under the pretence of re-educating the community, the Chinese authoritarian regime has detained Uighur Muslims in internment camps where they are being subjected to physical and mental torture on a regular basis. During the course of their detention, Uighur Muslims are being forced to commit acts that are in violation of their religious beliefs. Moreover, Beijing has been using its influence and economic power to bring back Uighur Muslims who have been living abroad or fled from Xinjiang so as to ensure that they are unable to practice their religion as well as raise their voice against the mass detention of their community. Once they are forcefully brought back, they are subjected to widespread torture that amounts to human rights violations. This systematic oppression of the Uighur Muslim community has been termed by many as ‘cultural genocide’.

 For a long time, the deplorable situation of Uighur Muslims was ignored by the international community. However, due to changing political considerations and rising anti-Beijing sentiment due to the Covid-19 pandemic, several countries including the US have called out Beijing over its treatment of the Uighur Muslim Community. Moreover, in an effort to seek justice for the Uighur Muslim Community, two Uighur activists groups known as the East Turkistan Government in Exile and East Turkistan National Awakening Movement have filed a complaint against People’s Republic of China before the International Criminal Court.

The complaint has been filed against top leaders of the Chinese Communist Party officials on the grounds that China’s detention of Uighur Muslims amounts to genocide and crimes against humanity. It is worth noting here that the Uighur exiles are being represented by a group of leading international lawyers based in London. According to Anne Coulon, one of the lawyers working on the case, the team is “in possession of overwhelming and very serious evidence that can support charges of crimes against humanity and genocide against Chinese Officials”. She further noted that “The seriousness of the alleged acts is such that the prosecutor should open an investigation”.

The purpose of this article is twofold: firstly, it shall discuss whether there are sufficient grounds to hold China accountable for genocide as well as crimes against humanity under public international law, and secondly, it shall attempt to establish whether China can be brought before the ICC.   

China’s Obligations under International law

Even though religious freedom is guaranteed under Article 36 of the Chinese constitution, it is impossible for Uighur Muslims to seek constitutional relief under the authoritarian regime of the Chinese Communist Party. In such a scenario, international law seems to be the only legal recourse available to the Uighur Muslim Community.

China is a state party to the 1948 Convention on the Prevention and Punishment of Crime of Genocide. Under Article I of the convention, state parties to the convention are required to punish and prevent genocide under international law. Apart from the Genocide Convention, China is also a state party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 20 and Article 27 of the ICCPR provide safeguards against religious discrimination. Similarly, Article 13(3) of the ICESR provides for the parent’s right to educate their children in accordance with their religious beliefs.

Under the Rome Statute, China can be held liable for its treatment of Uighur Muslims as per Article 6 and Article 7. Article 6 of the Rome Statute defines genocide by listing several acts such as killing, sterilization etc that are “committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group”. Similarly, China can be held liable for Crimes Against Humanity under several provisions of Article 7 of the Rome Statute. However, China is not state party to the Rome Statute and that prevents ICC from exercising jurisdiction over the crimes. The next part will analyse whether there is a way through which the international criminal court can exercise jurisdiction over the crimes or not.

Go On! Climate Change and Cultural Extinction: A Human Rights Crisis

Photo credit: UNICEF/Akash

The negative impacts of climate change on the enjoyment of cultural rights — along with the positive potential of cultures to serve as critical tools in responding to the climate emergency — must be placed on the international agenda. A cultural rights perspective is a critical component of the holistic approach needed to respond to catastrophic climate change.

To address these issues, an inter-disciplinary panel will convene in a side event / webinar via Zoom on 21 October co-hosted by UN Special Rapporteur in the field of cultural rights Karima Bennoune and the Human Rights Program of the Roosevelt House Public Policy Institute at Hunter College in New York. The following day, the Special Rapporteur will present her pathbreaking new report on climate change and cultural rights to the UN General Assembly.

Date: 21 October 2020 Time: 1:15pm – 2:45pm EDT / 5:15pm – 6:45pm GMT

Advance registration required. Click here to register.

Panelists:

Mary Robinson, Chief of The Elders; Former President of Ireland, Former UN High Commissioner for Human Rights, and Former Special Envoy of the UN Secretary-General for Climate Change

Karima Bennoune, UN Special Rapporteur in the field of cultural rights

David Boyd, UN Special Rapporteur on human rights and the environment

Joshua Castellino, Executive Director, Minority Rights Group International

Noa Petueli Tapumanaia, Chief Librarian & Archivist, Tuvalu National Library and Archives Department; Tuvalu national librarian

Mohamed Hizyam, youth activist, Maldives (video message)

Moderated by Stephanie Farrior, Distinguished Lecturer, Human Rights Program, Hunter College

Interview with Professor Mallika Kaur

Mallika Kaur is a lawyer and writer who focuses on gender and minority issues in the United States and South Asia including post 9/11 violence, racial discrimination, farmer suicides, and transitional and transformative justice. She is also a lecturer at the University of California, Berkeley, School of Law.  She writes regularly for online and print media as well as academic publications; her work has been published in Foreign Policy, Washington Post, California Law Review among others. We would also like to take this as an opportunity to thank Mallika for all the work and efforts she has contributed to INTLAWGRRLS over the past several years.

Her book titled “Faith, Gender and Activism in the Punjab Conflict: The Wheat Fields Still Whisper” was published by Palgrave Publishers a few months ago. I had the honor of interviewing her with regards to her new book. The interview is transcribed below.

Question: What was your motivation behind writing this book? Why did you specifically choose to cover Punjab’s human rights movement?

Answer: I did not in fact set out with the motivation of writing a book. It was not a part of any academic project or research agenda. It was something that came out of my own journeying. I grew up in Chandigarh, Punjab, having been a part of a community of folks who read their news in English, discussed it perhaps in Punjabi, and largely did not talk to their kids about the armed conflict at all. A seminal year in the conflict history was the Indian Army’s attack on Punjab, epicentered at Darbar Sahib (akin to Temple of David or Mecca) in June 1984. This provoked a visceral reaction from Sikhs, indeed even many non-Sikhs. Yet, within months—I was a toddler still—the justified necessity of the June massacres had taken hold in the non-Sikh psyche of India. Since then, any demands for truth-telling–about that June or the decade of mass violence that followed—have been considered suspect by the majority community and the successive governments of India.

As an adult, my legal and international human rights interest was around courts and commissions and possibility of a regional mechanism for South Asia. I was initially interested in those questions but eventually what I landed on in my work was how powerful stories are in unwrapping things that have been largely silenced for a very long time.

Punjab has been a laboratory of several nation-building projects in India: the Partition in 1947, the not so revolutionary Green Revolution in the 60s-70s, and various attempts at stifling dissent in the 80s and 90s. But these multiple upheavals that contextualize Punjab’s present have seldom been woven and written together, much less by a Sikh woman.

Through this book, I have tried to fight against this idea that the Punjab conflict was just about violence against violence with men combating on both sides. I tried to find stories of people who were non-combatants but chose the dangerous work of human rights defence. The book is trying to re-shift focus from “leaders,” combatants and an obsession with violence to a more nuanced and inclusive approach. Instead of just Indira Gandhi and other perpetrators, the book hopes the limelight comes to rest on women leaders like Paramjit Kaur Khalra, Kuldeep Kaur, Amar Kaur, unnamed women like the police officer who secretly helped inmates in one of Punjab’s many torture centers, and Baljit Kaur, who you see on the cover of the book. Within this marginalized conflict, I am looking at further neglected gender issues. For the men’s stories, I highlight the dangerous tendencies that were conveniently ascribed to all turbaned and bearded Sikh men, and then the general prohibition society imposes on men that makes it quite impossible for them to admit many emotions, much less speak about sexualized torture.

Question: How did you approach and research this topic?

Answer: The story-collection, writing, having the subjects of the story read it, all happened over many years, which was fine because this writing did not have any specific deadline of restriction. One of the benefits of doing a project entirely on your own time and dime! People were generous once they understood where the questions were coming from. They shared their personal archives including videos, legal files and other documents. The book eventually combines legal cases, scholarly analysis, community memory and personal narrative. The hybrid approach is necessary to tease the nuances lost in a more straightforward memoir, collective biography or academic examination. Further, memoir snapshots provide the reader the needed history of the author narrating the history of the conflict: exposing my vantage point and influences directly.

The book is all and not at all about Punjab. When generations of violence may have made silence more expedient than excavation, how might we learn about conflicts’ complexities of the past and their manipulated shadows in the present? Most linear, neat, cited and chronological tellings of conflicts overlook essential dynamics such as gender and trauma.

Each chapter centers on a key case from the year (or years) of its focus, starting in descending order from 1995, the supposed end of the conflict. Legal case details are available to varying extents, which is instructive: till the mid-90s, legal remedies were de facto suspended in Punjab. Case descriptions thus also draw from non-legal sources. Each case necessarily invokes additional cases. And then advocating for the need to embrace complexity and reject binary understandings, each chapter also contains an interwoven section that quickly traverses the earlier history of Punjab, starting in ascending order from 1839, the transition from Sikh rule to British colonial rule. The two timelines, descending from 1995 and ascending from 1839, converge in the final chapter, on the pivotal year, 1984.

Question: What kind of audience did you have in mind while writing the book?

Answer: The audience of this book is pretty large and varied. It includes scholars, lawyers, policy makers, activists, students, and general readers. By presenting convergences between different forms of violence–current and historical, interpersonal and mass social violence—I believe this book has already engaged a variety of readers. I have received very different reactions and reflections from people of various walks of life over the last months. Women who read between the lines when the women in the book remained silent about certain things. Men who have expressed they never thought of some basic gendered dynamics in how even the more popular stories from the Punjab conflict are spoken about.

Also, I strongly felt that since the violence was rendered so common in Punjab, I had to figure out a way of telling the story in a way that is not limited to lawyers or one academic discipline. That it could be understood by anybody who cares about human rights defenders who do the work of helping us retain our belief in humanity during the worst of atrocities! And it’s meant for those unnamed activists and defenders who may be feeling alone in the world. Despite the world today feeling ever-growing in its apathy and ever-shrinking in its attention span towards even the worst of crimes, you are not alone. Different points and places in history have felt the same and still there are people, like the protagonists of this book,  who have made choices against the tide. They felt they really got something out of it, out of this unsalaried and uncelebrated work. They regularly gained inspiration from the folks they worked with and defended. They felt a sense of collective as they became part of history. When you consider the tenacity of centennial litigants like Chaman Lal, it’s hard not to be moved!

Question: What was your approach while selecting the three human rights defenders for the book?

Answer: These three were in fact my windows on many other human rights defenders, some I named earlier, who were always at much more risk and suffered much more. The life stories of the three people you see on the cover of the book, Baljit Kaur, Justice Ajit Singh Bains and Inderjit Singh Jaijee, became trusted vehicles for traveling through Punjab’s recent history. Each of them is credited with saving countless lives.

Speaking of the approach while selecting these three, I’m reminded of a video I watched, which Baljit Kaur took in the late 80s. A Sikh man, a former Army officer is narrating how he was himself picked up, tortured and almost killed. He was speaking in perfect English so this was somebody with enough higher education. He had been treated this way as he had spoken against a young boy being killed. He mentioned that these folks fighting for justice, Baljit Kaur and her colleagues, were in fact the ones preserving the nation’s unity and integrity. Contrary to being seditious or dangerous as the politicians would have folks believe, it was human rights defenders who were providing ordinary people some hope that the legal and justice system could be the answer rather than further violence.

Unfortunately, people fighting for justice often fight very lonely battles. These protagonists had one another. And they had faith in a higher power that kept them going. And they had a lot of pride in Sikh history that they had heard of or witnessed when younger, through anti-British struggles, for example. Still, it was not like they were joined by a large number of other folks living in Chandigarh, Punjab who were enjoying the same relative privilege of upper class these three protagonists had during the 80s and 90s. So it was very fascinating to hear their stories as to how they surrounded police stations, how they compiled reports, how they visited Amnesty International and learnt how to make video footage to appropriately document what was happening at a time international human rights groups were not allowed in Punjab by the Indian government.

Question: How was your experience while interviewing people on this difficult past?

Answer: What I find fascinating especially about my three protagonists is that they are buoyant spirits, so young-at-heart in their 80s, 90s, even though they have seen such horrific things in their lifetimes. These protagonists have made more change than most of us will be able to make in our lifetime. I found this very uplifting despite the subject matter being very difficult.

Since I allowed myself a hybrid approach, and use memoir in the book as well, I put myself very explicitly into the discussions around the legal cases and this too helped me make sense of people’s trauma experiences. Some of the irrational reactions of these people started making more sense because they had gone through very unnatural set of circumstances. The whole Sikh community had been demonized for several decades. And now in India of 2020, the issues of creating an ‘enemy within,’ and what that does to social fabric, is again playing out. Where for example students, including pregnant women, who are protesting new discriminatory laws are picked up and booked indefinitely under draconian laws, themselves iterations of laws previously used in Punjab and then finally repealed on the books. How can we say the unlearnt lessons of past conflicts are not relevant to India today? I am not didactic about the parallels in the book. There is space for the reader to draw lessons for themselves.

Question: What do you think of the post-conflict scenario of Punjab in terms of violence against women and gender-based violence?

Answer: So, the first thing is that I don’t describe Punjab as post-conflict anywhere in the book because there has been no catharsis, no reconciliation, no period of transition, or justice, towards sustainable and inclusive peace. The estimates of those killed vary from police estimates of 25,000 to civil society estimates of 250,000. Even this variance speaks volumes about how the conflict has lived on; there is no closure, no semblance of transparency. Nobody was able to document the dead. Those who attempted to document it, like Jaswant Singh Khalra, whose amazing story I detail in Chapter 2, were killed. We went from this period of heightened killing and mayhem to an abrupt and strident “normalcy” in Punjab.

Coming to your question about gender and violence against women, I think the situation for women remains really bad through these subsequent decades, if not worse. Of course, across India we are dealing with shameful realities like marital rape being still legal. Dowry, being a ubiquitous feature of almost all weddings, despite being illegal. Ideas of honor and purity instead of autonomy and rights being tied to women’s bodies. And then some women’s bodies being deemed as not worthy of honor even: the Dalits of India disenfranchised by caste, or the women in conflict zones, who were blatantly immediately excluded from the changes that were proposed after the much publicized and horrific Delhi rape of 2012. Women who suffered in Punjab in the 80s and 90s at the hand of State forces have seen no reparations, not even in the form of recognition, much less apologies or restitution.

Question: What is next on your research agenda? Would you like to interview more female reformists of Punjab or write about some other aspect of Punjab region or the conflict?

Answer: I remain interested broadly in how we can make connections between different forms of violence that our communities negotiate – current and historical, in the U.S. and in home countries, interpersonal and mass social violence. I have also been writing and teaching on how lawyers specifically manage trauma, their clients’ and their own. Though most importantly right now, through COVID, I am focusing on the work that I have been doing since 2002, advocacy and crisis response for victims of gender-based violence. Working on gender-based violence as a practicing lawyer in the U.S., I am also really fascinated by comparatives. Right now in the U.S. there are a lot of discussions about alternatives to how domestic violence/ intimate partner violence response has been closely tied to increased policing, especially since the 70s. This is a complicated discussion here. Then add other contexts where feminists are fighting for the police to take domestic violence seriously. Or, even more complicated, cases in India where domestic violence laws are not protecting those they were meant to but are regularly manipulated by the upper-class litigants looking for an end-run. This is a part of my broader interest and possible future writing. And I dream of the time and headspace to write fiction someday! But really, I am presently quite consumed with working on the increased challenges faced by domestic violence survivors where I currently live. This too is a lesson from the protagonists of the book: make a difference where you can, don’t overlook the obvious local needs.

The Quest For Gender Based Asylum: Exploring ‘Women’ as a Particular Social Group

The United Nations Convention Concerning the Status of Refugees, 1951(‘Convention’) is the centerpiece of international refugee protection that provides protection to individuals who are forced to flee their homes due to a well-founded fear of persecution. The United States of America (‘US’), one of the treaty’s signatories, has adopted Article 1(A) of the Convention without any substantial reservation, understanding or declaration (‘RUDs’). Section 101(a)(42) of the Immigration and Nationality Act, 1952(‘INA’) grants asylum if an alien is unable or unwilling to return to his/her country of origin because s/he has suffered past persecution or has a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ 

Notably, both the Convention and the INA leave out ‘gender’ as a ground for persecution. However, this has not stopped women from making claims of asylum on the basis of their gender. In fact, the US records a 30-year-long quest in establishing gender as a protected category in asylum law. In the recent decision of Jaceyls Miguelina de Pena-Paniagua v. William P. Barr (‘De Pena’) the US Court of Appeals for the First Circuit recognized gender as a legal basis for granting asylum, allowing the US to finally become a safe haven for women fleeing domestic violence. The Harvard Immigration and Refugee clinic that represented the asylee, a Dominican woman escaping domestic and sexual violence, expressed that the Judge saw domestic violence for what it was–persecution for her gender, and that the decision has finally put gender on par with other grounds for asylum. 

Persecution of Women 

In order to obtain asylum, an asylum-seeker must prove past persecution or a well-founded fear of future persecution. The term ‘persecution’ has not been defined in the INA or Convention. There is no universally accepted definition of persecution, however most acts of bodily violence have been recognised as such. The Board of Immigration Appeals (‘BIA’) has defined persecution as a ‘threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.’[i]

While considering the case for women, instances of persecution can be split into two categories:

  1. The firstkind occurs within private spheres, where the persecutor is generally an individual who shares an intimate relationship with the woman, such as a romantic partner or relative. This include acts of sexual/domestic violence, economic/emotional abuse, or regressive cultural practices such as female genital mutilation, honour killings, etc. 
  2. The secondkind is where the persecution is carried out or condoned by a public or private, non-state actor, such as Governments, or militant groupswho specifically subject women of an  ethnicity to sexual violence or subjugation. This category encompasses forced population control strategies, penalties that restrict women’s reproductive freedoms, sexual assault, rape, trafficking, forced marriages, etc. 

Evidently, in both categories, women are persecuted because of their gender and their particular societal status as women.  If persecution is studied as a means of exerting control over a race, religion or particular social group, it is clear that women fit this bill.

Additionally, the asylum-seeker must also prove that she is unable or unwilling to return to, or is unable to avail protection from persecution in, her home country. Interestingly, in most cases of persecution of women, the government and the law enforcement are unresponsive to domestic violence or sexual violence, and in some cases, are even responsible for it. 

Women as a Particular Social Group 

Defining a PSG is extremely important because, depending on how narrowly or broadly it is construed, it can result in vast differences in who is granted asylum. The UNHCR Executive Committee in 1985 recognised that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society may be considered as a PSG. In 1991, the UNHCR issued guidelines on the protection of refugee women in which it reiterated the same principle. The US BIA also has provided some guidance on the matter. In the Matter of Acosta, the BIA recognised that a PSG should share a common, immutable characteristic, such as sex. It is relevant to note that sex and gender are conflated in refugee law. However one can argue that gender is also an ‘immutable characteristic’, as it fundamental to an individual’s identity or conscience. Later, ‘social visibility’ and ‘particularity’ were identified as additional factors for PSGs. 

The issue that women face while claiming membership to a PSG is that they have to prove the group’s constitution, characteristics and then establish that they fit the set criteria. This double liability makes it harder for women to seek asylum. While certain women have been successful in making a claim for asylum in the US – women who refuse to undergo the process of female genital mutilation, and victims of domestic violence, there are still gaps that can only be filled by classifying ‘women’ as an independent PSG. 

Case for the wider group of ‘women’

The decision of the First Circuit in De Pena makes an effort to classify women as a PSG. While the asylee only made a case of belonging to the PSG of Dominican women who were unable to leave or escape a domestic relationship, the court positively considered and advocated for the wider category of ‘women’ to be classified as a PSG.

The main objection in construing ‘women’ as a PSG, is that it encompasses a large number of people and this will open floodgates to a large number of women seeking asylum.[ii]But in De Pena, the court acknowledged the view of Perdomo v. Holder that if race, religion and nationality refer to large classes of persons, PSGs may do as well as they are equally based on innate characteristics. Therefore a PSG cannot be rejected because it represents too large a portion of the population as this would misunderstand the function of the protected categories. Gender, like all other grounds, only functions to recognise the reason an individual is persecuted and does not imply anything larger.[iii]

While US asylum law only recently has recognized gender as a protected status, other countries set a good example for the way forward. In 1993, the Immigration and Refugee board of Canada released guidelines for gender-related persecution. Interestingly, this has not led to an explosion of claims. Further, in 2006, the House of Lords recognized that gender alone may fall within the definition of a PSG. Such definitive cases and specific guidelines aid the cause of women asylum seekers, and go a long way in recognizing the case for women as a particular social group. 


[i]Hernandez- Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985); Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir. 1986).

[ii]Andrea Binder, Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001), p 191.

[iii]Andrea Binder, Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001), p 191.

VP Biden’s Ambitious Agenda for Women

The presumptive U.S. Democratic presidential candidate, former Vice President Joe Biden, has released his “Agenda for Women.”  It’s a tour de force of dozens of key policy priorities, both domestic and international, focused on advancing women’s rights at home and abroad.  Some key takeaways in the national security and human rights space are outlined below along with some areas where additional attention would be welcome:

ERA YesOne Biden’s his core pledges is to advocate for Congress to recognize that the necessary ¾ of the states have ratified the Equal Rights Amendment (the ERA). First introduced in 1923, approved by Congress in 1972, and then sent out to the states for ratification with a deadline of 1979 (later extended to 1982), the ERA received its 38th ratification in January 2020 when Virginia finalized its ratification. Litigation over whether the time limits placed on ratification by Congress are constitutional has been proceeding in several courts (with one suit filed by Equal Means Equal being dismissed  earlier this month for lack of standing). The House passed a resolution that eliminates the putative deadline; so far, there has been no comparable action in the Senate. The Alice Paul Institute—named for the Quaker suffragist who authored the ERA after being instrumental in gaining passage of the 19th Amendment giving women the vote—offers a history of the amendment here. Prof. Julie Suk’s take on why it failed before and how it can succeed is here. Biden co-sponsored the ERA nine times while in Congress. President Donald J. Trump, on the other hand, has opposed the lawsuits, including one  brought by three states attorneys general (Virginia, Nevada, and Illinois) to add the ERA to the U.S. Constitution.

On the multilateral plane, Biden will seek ratification of the Convention on the Elimination of Discrimination Against Women (CEDAW), a treaty dedicated to global women’s rights. Nearly all U.N members have ratified this treaty (in holding out, the United States enjoys the company of Iran, Somalia, and Sudan and a couple of small island nations—see map below). The Senate Foreign Relations Committee has debated the treaty several times, but so far the full Senate has refused to give its advice and consent to ratification, in part due to unfounded fears the treaty will be cited to promote abortions and prostitution and will undermine U.S. sovereignty. Several U.S. cities and municipalities, including San Francisco, have adopted ordinances and policies in keeping with the treaty and the “human rights cities” movement. 1200px-CEDAW_Participation.svg

When it comes to reproductive rights, Biden calls for the repeal of the 1976 Hyde Amendment, which bans U.S. federal funds (mainly Medicaid) from paying for abortions (except in cases in which the pregnancy results from rape or incest or if the woman’s life is endangered by the pregnancy). The Amendment disproportionately impacts low-income women and women of color. This marks a welcome reversal from Biden’s stance at an early Democratic debate during the primary race.  A bill to repeal the Amendment, known as the EACH Woman Act, is working its way through Congress.

Biden would also rescind the so-called “Mexico City Policy” (a.k.a. the global gag rule) that President Trump reinstated but in a more far-reaching form. Withdrawing this ruleGlobal Gag Rule would enable the federal government to support civil society organizations engaged in global health efforts around the world, even if recipients provide information on safe and legal abortion services as part of their public health work. Remarkably, as one of his first moves as President, Trump, flanked by a phalanx of beaming white men, dramatically expanded the policy. Heralding the vindictiveness that has so characterized this administration, this move followed on the heels of hundreds of Women’s Marches that drew millions around the world into the streets (my dispatch is here) and a campaign that repeatedly revealed his deep-seated misogyny. Reversing the global gag rule should be an urgent priority: research has shown that the policy dramatically undermines women’s health and, paradoxically, leads to increased abortion rates in developing countries. Although this move can be accomplished by executive action, the Global Health, Empowerment, and Rights (HER) Act (currently in the Committees on Foreign Relations and Affairs) would prevent future Republican presidents from reinstating it again.

Furthermore, as part of his broader immigration platform, Biden promises to dedicate himself to immigration reform and undo the Trump administration’s harshly punitive policies. This includes: reopening the United States to refugee resettlement (raising the admissions cap to 125,000), re-establishing a humane and expeditious asylum process for people fleeing persecution, and reinstating asylum protections for people who are escaping domestic and sexual violence. The latter requires the reversal of a decision by then-Attorney General Jeff Sessions to invoke a rarely used power and overturn a Board of Immigration Appeals decision that had allowed such survivors to demonstrate persecution on the basis of their membership in a “particular social group”—one basis for receiving refugee status. Biden will also increase the number of visas for survivors of domestic violence under the Violence against Women Act (VAWA) and for victims of crime (so-called U-visas), and expedite the process for granting these and related immigration benefits, including T visas for victims of human trafficking. It will not be enough, however, to simply dismantle these cruel Trump policies; rather, Biden should develop ways to repair the harm done, including through providing psycho-social rehabilitation to children and families traumatically torn asunder and placed in inhumane detention conditions. Biden should also explore the implementation of restitutionary immigration benefits, such as expedited pathways to asylum and family reunification.

In addition to issuing a whole plan devoted to ending violence against women, Biden has endorsed passage of the International Violence Against Women Act (IVAWA), which would make ending the epidemic of violence against women worldwide a key foreign policy priority. The proposed legislation recognizes that

“Rape and sexual assault against women and girls are used to torture, intimidate, and terrorize communities. Rape and sexual assault are used as tools of war in conflict zones, including the Democratic Republic of the Congo, Iraq, Syria, Afghanistan, El Salvador, and South Sudan.”

If enacted, the IVAWA would commit the United States to helping women and girls who are victims of violence to gain access to justice. The timing of this will be crucial; women everywhere are experiencing higher levels of domestic violence while suffering from reduced access to protective services due to the Covid-19 pandemic. These commitments reflect the fact that Biden co-authored the U.S. Violence Against Women Act in 1994 (one of the legislative achievements of which he is most proud) and helped pass the William Wilberforce Trafficking Victims Protection Reauthorization Act, which strengthened the United States’ anti-trafficking framework.  Biden released a statement on the World Day against Trafficking in Persons, July 30th, setting forth his anti-trafficking priorities.

This focus on ending VAW globally is part of Biden’s larger Women, Peace & Security (WPS) plank that will focus on supporting women’s leadership globally. This includes full implementation of the Women, Peace, and Security Act, passed by Congress in 2017, which is premised on research that including women in conflict prevention efforts, peace building processes, and post-conflict governance helps to reduce conflict and instantiate stability. The Act mandates a government-wide strategy to increase the participation of women in peace and security operations and to support transitional justice and accountability mechanisms that reflect the experiences of women and girls. 1_Qz_BwcroQlTViHAMkaJswgThe Act responds to a suite of resolutions emanating from the U.N. Security Council to the same end (starting with Resolution 1325) and builds on the United States’ National Action Plan on WPS, which was released in 2011 and then strengthened in 2016. Both plans call for effective measures to investigate sexual and gender-based violence and to bring those responsible to justice. The Trump Administration has only haltingly implemented the WPS Act, while taking a number of concrete steps in the opposite direction, as demonstrated by Ambassador Don Steinberg, who once led USAID.

Biden’s Agenda for Woman contains a whole slate of economic pledges, underscoring a recognition that economic security is a women’s issue just as much as reproductive rights or the imperative to end gender discrimination. These include support for a number of pieces of draft legislation, including:

Biden has also drawn attention to the need to better support caregivers, particularly in the Covid-19 era. The Agenda announces a whole array of measures in the health, education, and economic sectors for LGBTQI+ individuals (indeed, the list of policies to be reversed vis-à-vis this community is regrettably a long one), as well as disabled, incarcerated, native, immigrant, and veteran women and women of color.

Finally, consistent with an Obama-era Executive Order, Biden has also pledged to ensure his political appointees, and the entire federal workforce, reflect the diversity that is America. Besides his intention to choose a woman Vice President and an African American women for the Supreme Court, he also committed to work for gender parity as he builds his foreign policy and national security teams, a campaign launched by the Leadership Council for Women in National Security (LCWINS) at the start of the election season. The commitment—which other Democratic candidates also adopted—is based not only on legitimate concerns for gender equity but also on consistent research that diverse teams are stronger, more effective, and more creative. This imperative is echoed by organizations such as Women of Color Advancing Peace, Security & Conflict Transformation (WCAPS), the Athena Leadership Project, and Women in Defense (WID).

All this may explain why polls have VP Biden up 25 points over Donald Trump with women as a whole—an historic margin. This is notwithstanding Trump’s pandering to “The Suburban Housewives of America,” perhaps because Biden’s numbers are also higher in suburban polls. To be sure, gender has always been—and likely will be—an issue on the campaign trail, but the disparity between the two candidates could not be more stark.

 

The Right to Seek and Enjoy Asylum During COVID-19

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A Syrian boy poses for a picture during an awareness workshop on Coronavirus (COVID-19) held by Doctor Ali Ghazal at a camp for displaced people in Atme town in Syria’s northwestern Idlib province, near the border with Turkey, on March 14, 2020. (Photo by AAREF WATAD / AFP)

In the words of the UN High Commissioner for Refugees, Filippo Grandi, “[i]f ever we needed reminding that we live in an interconnected world, the novel coronavirus has brought that home.” Though it is a problem common to all of us, the suffering is disproportionately more for the world’s most vulnerable groups, including refugees and asylum-seekers. These vulnerabilities are exacerbated by State practices limiting asylum as a response to the pandemic. Though public health emergencies allow States to impose certain limitations, this must be done in compliance with States’ relevant obligations under international law. This post provides a short overview of the most basic but key protections afforded to asylum-seekers and refugees under international law.

Though there is no internationally agreed upon legal definition of asylum, the UNHCR defines it as a process starting with safe admission into a territory and concluding with durable solutions, i.e., voluntary return in safety and dignity, local integration, or resettlement to another location or country. “Asylum-seeker” refers to individuals who are seeking international protection and have not yet been granted asylum by the receiving State. “Refugee” refers to someone who has left their country of origin and is unable or unwilling to return because of a serious threat to their life or freedom on the grounds listed under Article 1A(2) of the 1951 Refugee Convention, i.e., race, religion, nationality, membership of a particular social group, or political opinion. Other regional instruments may provide different definitions to include other grounds for refugee status, such as a “massive violation of human rights” (e.g., the Cartagena Declaration on Refugees). Not every asylum-seeker will ultimately be recognized as a refugee, but every refugee is initially an asylum-seeker. In that regard, at the international level, refugee status entitles those who satisfy that criteria to a specific set of protective regimes laid out in the 1951 Convention and its 1967 Protocol. However, asylum-seekers are still entitled to certain protections in compliance with the receiving State’s obligations under international law, regardless of being recognized as a refugee.

The right to seek and enjoy asylum is enshrined in various international and regional instruments including the Universal Declaration of Human Rights, African Charter on Human and Peoples’ Rights, and Charter of Fundamental Rights of the European Union. The UNHCR interprets the right to asylum to include respect for the principle of non-refoulement, admission to the territories of States, and being treated in compliance with the respective human rights and refugee law standards. Individuals seeking international protection would benefit from the human rights obligations that a State owes to its citizens without any discrimination.

But what are the main parameters of such protection during a pandemic?

The recently issued Human Mobility and Human Rights in the COVID-19 Pandemic: Principles of Protection for Migrants, Refugees, and Other Displaced Persons developed by a committee of established experts and practitioners, and endorsed by a 1,000 international experts, lays out 14 key principles applicable to all persons, irrespective of their immigration status. These principles are developed to elucidate the scope of relevant human rights obligations during emergencies as States and other relevant stakeholders navigate the pandemic response.

In the same vein, the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (adopted by the UN Economic and Social Council and UN Human Rights Committee general comments on states of emergency and freedom of movement), provide complimentary guidance as they are critical in implementing the scope of limitations to human rights in public health and national emergency situations. The Siracusa Principles highlight that such limitation must be based on one of the grounds recognized by the relevant article; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim (Principle 10). Any derogation measure must be “strictly necessary to deal with the threat and proportionate to its nature and extent” (Principle 39). Additionally, certain rights are non-derogable even in the events of public emergency, including the right to life and freedom from torture, cruel, inhuman, or degrading treatment, or punishment among others.

In light of the above, key principles pertaining to States’ treatment of asylum-seekers and refugees in a pandemic can be listed as follows:

Non-refoulement

The prohibition of return (to a real risk of persecution, arbitrary deprivation of life, torture, or other cruel, inhuman, or degrading treatment) cannot be derogated from, even during a public health emergency. The cornerstone principle guaranteeing the right to seek and enjoy asylum is the principle of non-refoulement set forth under Article 33 of the 1951 Convention, which prohibits States from expelling or returning refugees “in any manner . . . where his life or freedom would be threatened.” The principle applies not only to removal, but also to refusal of entry. It applies to all refugees – even if their status has not been officially determined. The prohibition has attained the status of customary international law and is considered a jus cogens norm.

As the UNHCR clarified in its recent guidance on COVID-19 responses, imposing blanket measures to prevent refugees or asylum-seekers from admission or discriminating against certain nationals without demonstrating relevant evidence of a health risk or putting in place measures to protect against refoulement would violate the prohibition. However, in the US, the Department of Health and Human Services has implemented an order to suspend the introduction of persons into the US from certain countries and requiring their immediate repatriation. Belgium and the Netherlands have also suspended the right to asylum for newly arriving asylum-seekers due to COVID-19 despite the guidance from the European Commission stating that even though national authorities may take necessary measures to contain further spread of the pandemic, such measures should be implemented in a non-discriminatory way taking into account the principle of non-refoulement and obligations under international law. Closing borders altogether in these manners violates the principle of non-refoulement affecting the right to seek and enjoy asylum.

Measures on asylum-seekers upon entry

In all cases, non-discrimination, human rights, and dignity of all travelers must be respected. Relevant WHO regulations are given particular weight in the context of a limitation imposed on the ground of public health (Siracusa Principles, Principle 26). As defined by the WHO’s International Health Regulations, countries may impose relevant measures during pandemics as long as they are non-arbitrary, non-discriminatory, and proportionate. Similarly, medical examinations and other measures may be implemented for “travelers” (“a natural person undertaking an international voyage”) at ports of entry, but these measures cannot be “invasive.” Similarly, Article 13 of the EU Reception Conditions Directive lays out that EU Member States may proceed to a medical screening of applicants for international protection on public health grounds while such medical screening must comply with fundamental rights and the principle of proportionality, necessity, and non-discrimination. Furthermore, Article 19 of the Directive requires that applicants receive “the necessary health care, which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders.” The European Commission specified that such health care would also include relevant treatment for COVID-19.

Non-discrimination

Lack of effective realization of non-discrimination undermines the right to asylum. Core international human rights treaties prohibit “discrimination of any kind” viz. refugees and asylum-seekers. In practice, however, migrants are less likely to benefit from relevant health and financial services due to lack of legal status and access to services. Moreover, migrants are often stigmatized and blamed for spreading viruses. In other cases, COVID-19 measures are applied in discriminatory manners as seen in Lebanon, where curfews have been applied more stringently towards Syrian refugees.

Equal treatment and non-discrimination with regards to the right to health are especially crucial in the context of COVID-19. As part of the right to health, States must provide access to food, water, sanitation, and shelter to all persons (UDHR Art. 25 and ICESCR Art. 12 in particular). States must refrain from practices reinforcing stigma and xenophobia and implement public health responses inclusive of all marginalized groups (see, in particular, the International Convention on the Elimination of All Forms of Racial Discrimination Arts. 1.1, 2, 4; CERD Committee General Recommendation No. 30; and 1951 Refugee Convention, Art. 3).

Detention

Detention is a practical impediment to the implementation of the right to asylum. The UNHCR guidelines on the issue establish that a period of confinement may be imposed legitimately as a preventive measure in the event of a pandemic but that such confinement should be limited to its purpose and cease as soon as the necessary testing or treatment is complete. Detention must always be an exceptional measure of last resort and conducted in accordance with the principles of legality, necessity, and proportionality. Alternatives to detention should be considered, including regular reporting requirements, particularly when vulnerable groups are concerned. Human Rights Watch recently reported the arbitrary detention of nearly 2,000 migrants and asylum-seekers in Greece – including vulnerable groups like children, persons with disabilities, and pregnant women.

Detention constitutes a significant risk factor for contagious spread during a pandemic. Such detained people are highly vulnerable to the spread of COVID-19 mostly due to the inadequacy of detention conditions, overcrowding, limited supplies for personal cleaning, limited personal protective equipment such as masks and gloves, and poor access to health care. Detention of displaced persons is not permissible when such detentions pose serious threats to their health and life due to COVID-19. In addition to the adverse risks and impacts to the right to life and health, COVID-19 causes risk of indefinite detention as these people are neither admitted nor provided the option to return due to border closures.

Conclusion

Amidst a global pandemic, adhering to basic principles of international law vis-à-vis asylum seekers and refugees is vital. States cannot impose blanket measures banning asylum seekers and refugees from seeking and enjoying international protection and relevant considerations pertaining to immigration detention that are altogether key to the reinforcement of the right to seek and enjoy asylum. These principles impose clear obligations on States that they cannot simply choose to ignore during health emergencies – even global pandemics.

*This article reflects the personal views of the author and should not be attributed to the World Bank.