With an irony that hasn’t gone unnoticed, US President Donald Trump signed his executive order Protecting the Nation from Foreign Terrorist Entry into the US on January 27, Holocaust Memorial Day.
The order’s instructions are harsh and shocking. Not only does it suspend the US Refugee Admissions Programme for 120 days and all refugee arrivals from Syria indefinitely, it suspends all new arrivals from designated countries, which, apart from Syria and Iraq, are reportedly Iran, Libya, Somalia, Sudan and Yemen – all predominantly Muslim.
The executive order is highly problematic on several levels, and it’s good to see the UN High Commissioner for Refugees (UNHCR) and the International Organisation for Migration issue a joint statement expressing their concern. As the order came into effect, several foreign and dual nationals were detained by US authorities and others barred from boarding inbound flights from other countries. Protests sprang up at major US airports and two members of Congress went to John F. Kennedy International Airport in New York to secure the release of an Iraqi refugee who had worked for the US government in his home country.
The day after the order was signed, however, a federal judge temporarily blocked the government from deporting citizens from the designated countries and refugees who might face irreparable harm if the US breached its duty not to “refoule”, meaning to expel or return people to a place of danger. But the chaos it has created goes on.
The order’s provisions are vague, and its rationale clearly ill-conceived. It refers to the events of September 11 2001 despite the fact that no refugees were involved in hijacking and crashing any of the four planes that wreaked havoc that day. Statistically, Americans’ chances of being killed by an immigrant terrorist are vanishingly small – and in any case, existing laws and the 1951 Refugee Convention itself are already in place to keep terrorists out.
Almost by definition, refugee movements are unplanned and irregular, and when they take place on a large scale, some of those fleeing could indeed be using the refugee movement to hide and gain entry to territories from which they would otherwise be barred. This is why the 1951 Convention relating the Status of Refugees, by which the US is bound, excludes from protection anyone who could seriously be considered to have committed a war crime, a crime against peace, a crime against humanity or a serious non-political crime. Known terrorists would never qualify for refugee status (Article 1F).
One of the order’s most contentious elements is its instruction to prioritise refugees fleeing on grounds of religious persecution, so long as any applicant comes from a minority population in their home state. This has been taken to refer to Christian minorities from Iraq and Syria, but it would also logically extend to Rohingya Muslims from Myanmar and Muslims from the Central African Republic.
To be sure, a well-founded fear of persecution based on religion is a ground for refugee status, but it is is improper to prioritise this over persecution on grounds of race, nationality, membership of a particular social group or political opinion. More than that, the whole policy of targeting refugees based on nationality or religion could fall foul of Article 3 of the 1951 Convention that requires state parties to apply the provisions of the convention “without discrimination as to race, religion or country of origin”.
And of course, if any person seeking refugee status from any of these countries for whatever reason were to make it to the US, then the country’s non-refoulement obligation would mean it could not return them to the frontiers of any territory where their life or freedom would be threatened, or if it put them at real risk of torture.
It hasn’t been lost on everyone that the US has a long history of receiving refugees and asylum seekers and resettling them and it is always among the top receiving countries in the industrialised world. Many people now helping to rebuild their countries as they transition from conflict and repression found refuge in the US where they were given opportunities to study and work which prepared them to return once it was safe.
The executive order also emphasises that in future, refugees must respect the laws and values of the US, a sentiment that some European countries have recently voiced. But again, the 1951 Convention has always endorsed such an approach, via Article 2: “Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”
Indeed, the countries that benefit most from new arrivals in their society are those which take steps to best integrate refugee populations while respecting their cultural identity and freedom of religion.
Nowhere to go
A draft of the executive order that emerged a few days before the final version included an instruction that didn’t make it into the final version: its Section 6 required the US Secretaries of State and Defense to produce within 90 days a plan to provide safe zones for refugees in Syria and neighbouring states while they awaited repatriation or resettlement in another country.
The idea of safe zones has been given a wider airing of late, without any firm evidence of how they might be implemented. If civilians are left in isolated, clearly defined areas which demand protection, they are vulnerable to targeted attack. The proposals naturally raise fears of a repeat of what happened at Srebrenica in 1995, when 8,000 Bosnian Muslim men and boys were massacred in what had been declared a “safe area” two years previously.
That the US did not believe it could create such zones in the volatile conditions that persist in most of Syria is indicative of the fact that they may never be viable at all.
Refugees are, by definition, fleeing persecution, persecution that is intensified during times of armed conflict, as UNHCR’s recent guideline emphasises. Closing the gates into the US puts lives at risk in the same way as happened in the 1930s, which Holocaust Memorial Day is in part meant to commemorate. All human beings fleeing persecution and armed conflict deserve protection. What the Trump administration is doing flies in the face of that basic truth.