In my 25 years as a human rights advocate, I have learned that it is very difficult to be female in many parts of the world. In spite of this reality, Attorney General Jeff Sessions is dragging us back decades in the protection of women’s human rights. His recent rejection of the decision in the Matter of A-B shows a callous disregard for the lived experiences of women.
In many countries, girls are aborted or killed as infants solely because they are female. Some die during traditional rituals such as female genital mutilation. Other girls are married off as children, trafficked for sex, or sold as domestic servants. As adults, women face violence in their homes, the streets, or at the hands of their governments. Some women are prohibited from doing certain kinds of work by archaic labor laws developed based on stereotypes and prejudices about women. Others endure harassment and demeaning work conditions just to make a living.
It took the United Nations more than 45 years to acknowledge women’s rights as human rights and violence against women as a human rights violation. It long ago acknowledged that governments are accountable for the human rights they commit as well as those they systematically fail to prevent. Kofi Annan identified violence against women as the most widespread human rights abuse in the world. Governments around the world have slowly been adopting laws to address violence, but we see enormous difficulties in properly implementing laws to provide adequate protections.
This new recognition that legal protections should reflect the experiences of women was slowly being reflected in refugee and asylum law in the United States. Over the past two decades we have seen the definition of social group, an identified group who should be protected from persecution, extended to victims of domestic violence when their government cannot or will not protect them. These life-saving developments recognized that previous interpretations of the l aw ignored these human rights abuses against women. Domestic violence is not a family matter, it is a global epidemic and the stakes could not be higher.
Another thing I learned is that governments around the world are failing women. I have heard countless stories over the years about women calling the police or presenting themselves to prosecutors seeking protection from abusive spouses. They are taunted, ignored, and turned away. We have seen some improvement in laws and practices, but they have not stemmed the tide of abuse and women are still being injured and killed at alarming rates. In some cases, women are ignored because their husbands are police officers, military or high ranking government officials. In other cases, the women are just not believed.
I remember one particularly compelling interview when I first started doing this work. A beautiful young woman in prison in Albania told me about the violence and abuse she experienced at the hands of her husband. He bruised her, broke her bones and made her bleed until she fainted. She tried over and over again to get help from the police and the prosecutors and was routinely turned away and told it was a family matter. After a particularly brutal beating that left her unconscious, she woke to the sight of her husband preparing to sexually assault their daughter. She leapt to her daughter’s defense, attacking her husband. He died as a result of the injuries. She was prosecuted and sentenced to prison for the man’s death. This woman, repeatedly failed by her own government, would not be provided asylum by our government today if Jeff Sessions has his way. It is up to all of us to make sure he doesn’t.
Robin Phillips is the executive director of The Advocates for Human Rights. She is an attorney and has written extensively about human rights, including trafficking in women, employment discrimination, sexual harassment, and domestic violence.
I have worked with refugees and asylum seekers since 1991. I cannot even tell you how many I have had the privilege to represent, and I believe that I have only encountered two cases of fraud in more than 20 years. I have never encountered even a single client with any links to terrorism. The refugees and asylum seekers who I have met have been fleeing for their lives – sometimes from terrorists.
The Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” signed on January 27, 2017 overreaches executive branch powers (under the plenary power doctrine, immigration policy is shared between the legislative and executive). Moreover, aspects of the order are both unconstitutional and violate United States’ international legal obligations under the Refugee Convention (which we ratified in 1980). This comes at a time when there are more forcibly displaced people (65+ million) than ever before in human history.
The Executive Order violates the United States Constitution and the nation’s international obligations under the Refugee Convention to ensure that:
Refugees not returned to a place where they will be persecuted (non-refoulement);
There is an individualized determination of persecution on account of one of five grounds (race, religion, nationality, membership in a particular social group, or political opinion), NOT just religion; and
Refugees are not discriminated against.
Here are some specific reasons why the Executive Order is bad policy and should not be enforced:
1. Suspends U.S. Refugee Admissions Programs (USRAP).
The order suspends all refugee admissions for 120 days. Refugees are perhaps the most thoroughly vetted individuals who enter the United States. Refugee processing often takes up to 36 months and includes background checks, biometrics, and interviews with several federal agencies. I have met many people stuck in limbo in refugee camps, waiting to be cleared to join immediate family members in the United States. Even following the 9/11 terrorist attacks, refugee admissions were suspended for less than three months.
It does not appear that clear instructions regarding implementation were conveyed to the Border & Customs Protection — those who had to enforce the order this weekend — leading to chaos and lawsuits. Under the order, exceptions can be made on a case-by-case basis for national interest, if the person does not pose a risk and is a religious minority facing religious persecution OR diplomats OR if the person is already in transit and denying admission would cause a hardship.
The order reduces the number of refugee admissions by more than half, to 50,000. The President, in consultation with Congress, sets each year the refugee admission number. In fact, during President Obama’s administration, the United States had dropped historically low in the numbers of refugees resettled. The goal this fiscal year was to admit 110,000 refugees. The government’s fiscal year began October 1, and we have already admitted 29,895 as of January 20, 2017. Under this new Executive Order, we will admit only about 20,000 additional refugees before the end of the fiscal year on September 30. That means that 60,000 refugees who have already been vetted will remain in life and death situations.
Once resumed, the United States will prioritize the religious persecution claims of minority religious groups. Purportedly, this is to prioritize the claims of persecution of Christian minorities, but Muslims are also a persecuted minority in some countries. What does this mean for them?
The order suspending the United States Refugee Admissions Program for 120 days directs Department of Homeland Security to determine how state and local jurisdictions can have greater involvement in determining placement resettlement in their district. This will allow states and cities unprecedented authority to determine whether they will resettle any Muslim refugees. Bills have already been introduced in states such as North Dakota and South Dakota to ban all resettlement unless approved by the state legislatures.
2. Bans Syrian Refugees The order halts the processing and admission of all Syrian refugees. Indefinitely. One of the worst human rights crises on the planet is happening in Syria. Over the past few years, millions of people have fled from both the forces of President Bashar Al-Assad (supported by Russian airstrikes) and ISIS. The United States finally stepped up last year and accepted 10,000 refugees — far, far less than most Western countries. To date, the majority of refugees resettled from Syria to the United States have been women and children.
3. Bans Entry of Nationals of Muslim Majority Countries
Both non-immigrant (tourist, student, etc.) and immigrant (including legal permanent residents, at least for the initial roll-out of the order) from seven countries (some friends, some foe) — Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — are banned from entry for at least 90 days. (The order also notes that other countries and immigration benefits may be added to the banned list.) Courts have already temporarily blocked the implementation of part of this order based on the First Amendment Establishment clause (which prohibits the government from preferring or disfavoring a religion) and the Fourteenth Amendment Equal Protection clause. But part of the order also calls for the exclusion of individuals who “would place violent ideologies over American law” or “who engage in acts of bigotry or hatred, including persecution of those who practice religions different for their own.” That is incredibly vague and potentially discriminatory. Moreover, there has been enhanced screening for everyone coming from countries with high levels of terrorism since 9/11.
4. Requires In-Person Interviews for All The order suspends the Visa Interview Waiver Program (VIWP), primarily used for people who had been vetted, were considered a low-security risk, and were on renewable employment-based visas. The requirement for in-person interviews for non-immigrant visa applications will create huge backlogs at embassies and consulates and slow down the process for anyone applying for a visa (including family members of legal immigrants, asylees, and refugees). Many of The Advocates for Human Rights’ asylum clients come to the United States on visitor or student visas; this processing backlog will prevent these people the ability to escape persecution in their countries, leaving them vulnerable and unsafe.
5. Screens ALL for Immigration Benefits This is policy by fiat, going beyond congressional authority. While screening standards are already in place for identifying fraud, etc., the Executive Order directs agencies to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.” These are entirely new and subjective standards, and it is not clear how anyone could implement them.They are NOT statutory requirements for any immigration benefit (except a national interest visa).
This Executive Order is public policy based on myth. It is not what is best for our country. Every Department of Homeland Security professional that I have ever met has said that the problem is lack of resources rather than the need for new laws or regulations. Every refugee I know is a true American patriot, one who tears up when saluting the flag because they know the true price of freedom.
Educate yourself. Call your congressional, state, and local representatives. Volunteer to help refugees and asylum seekers in your hometown. Provide a safe haven for those who are forced to flee persecution is a core American value.
This Executive Order will not make us safe. Instead, it will erode the United States’ moral standing as leader of the free world.
By Jennifer Prestholdt, Deputy Director, The Advocates for Human Rights.
“India lives as one; India grows as one; India celebrates as one,” Indian Prime Minister Narendra Modi delivered these lofty words to a joint session of U.S. Congress on June 8 of this year. The rosy picture he painted of India, however, is betrayed by the reality of communal strife and intolerance on the ground. India, the world’s largest democracy, was founded as a secular liberal democracy: in essence a promise to all Indians of their fair share of prosperity and the pursuit of the good life regardless of religion, background, or creed.
Regretfully, as India celebrates its 70th Independence Day on August 15, that promise remains unfulfilled for the many Indians who are deprived of their equal rights through both government action and inaction.
India has always been a melting pot of traditions, religions, and languages and is constitutionally a secular country to account for such diversity. The increasing atmosphere of Hindu nationalism has perverted those principles with disastrous results: there have been more incidents of communal violence and a stronger culture of impunity for officials who commit religion-based crimes.
There are numerous problems for Indians seeking redress for communal violence. The United States Commission on International Religious Freedom noted that,
“NGOs, religious leaders, and human rights activists allege religious bias and corruption in these investigations and adjudications. Additionally, religious minority communities claim that eye-witnesses often are intimidated not to testify, especially when local political, religious, or societal leaders have been implicated in cases.”
Lack of Accountability: Gujarat
The involvement of Prime Minister Narendra Modi and other BJP officials in the violent riots in Gujarat in 2002 and the lack of accountability are of particular concern. While Modi, as Chief Minister of Gujarat, was responsible for coordinating the government’s response to the violent mobs, there is strong evidence to suggest that top officials actively refused to intervene in the violent riots. The tragic case of Ehsan Jafri, the Congress MP who gave terrified Muslims safe haven in his home during the Gulberg Society riots, is telling. According to eyewitnesses, Jafri made frantic calls to top Gujarati officials, including Modi himself, to no avail. Eventually Jafri offered himself to the gathering mob outside his house in an effort to save those inside his home. He was butchered by the mob while they set his home alight, killing most inside. Many BJP officials were acquitted from charges relating to the riots. Civil society activists like Teesta Setalvad have protested the judicial proceedings, citing the hostility of investigators towards witnesses and the restricted purview of the investigation.
Retaliation Against Civil Society
The draconian Foreign Contributions Regulation Act (FCRA) is being used to restrict funding and revoke licenses of NGOs that criticize the government. Activist Setalvad has been a prime target of government retaliation for her work seeking justice for the Gujarat victims and a new trial for Modi and other Gujarat officials implicated in the 2002 violence. As Ajit Saha testified, “The Supreme Court had to stay attempts to arrest her on charges of financial embezzlement through the Citizens for Justice & Peace, her NGO. Her offices and homes have been raided several times, failing each time to recover incriminating evidence.” It is alleged that the registration of Lawyers Collective, an Indian NGO dedicated to human rights issues, was suspended because of its legal assistance to Setalvad. Similarly, Greenpeace activist Priya Pillai was refused admission to a flight to London to testify to Parliament about human rights abuses in the central Indian state of Madhya Pradesh.
Another pervasive extrajudicial practice is “encounter killings.” Officially, these are deaths resulting from encounters with suspects. But in reality, these tend to be outright murders by police. As explained by Ajit Sahi, “Nearly all such encounters are suspected of being “fake,” that is, pre-apprehended men and women killed in cold blood.” The UN special rapporteur on extrajudicial, summary or arbitrary execution’s 2013 report on India noted that, “[A]ccording to the NHRC [National Human Rights Council], 2,560 deaths during encounters with police were reported between 1993 and 2008. Of this number, 1,224 cases were regarded by the NHRC as “fake encounters.”
Prime Minister Modi spoke about the ideal India in his speech to U.S. Congress in June. An India united rather than fragmented. As it is, India is riven with religious conflict and intolerance. People are killed for their communal identities in mob violence while officials either take no action or, themselves, contribute to the killing.
If India is to ever achieve the greater goal of Indian unity, its leaders must continue to acknowledge and correct shortcomings, including holding all perpetrators of violence accountable.
Additional reading by The Advocates for Human Rights:
By Adam Krok, a sophomore at Yale (class of 2019) expecting to major in Ethics, Politics and Economics. From Johannesburg, South Africa, he is 2016 summer intern with The Advocates’ International Justice Program through the Bulldogs on the Lakes program. He enjoys nothing more than a good argument or a compelling case.
Nushin Sarkarati from the Center for Justice & Accountability (CJA) was invited by The Advocates for Human Rights to present a Continuing Legal Education seminar on recent developments in litigation in U.S. courts to hold perpetrators accountable for human rights abuses around the world. Ms. Sarkarati is a CJA staff attorney whose practice focuses on Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) litigation in federal court.
The ATS is a U.S. federal law first adopted in 1789 that gives the federal courts jurisdiction to hear lawsuits filed by non-U.S. citizens for torts committed in violation of international law. Today, the ATS gives survivors of egregious human rights abuses, wherever committed, the right to bring civil lawsuits against the perpetrators in the United States. Examples of the kinds of conduct covered by the ATS include torture, extrajudicial killing, forced disappearance, war crimes and crimes against humanity, genocide, slavery, prolonged arbitrary detention and state-sponsored sexual violence.
Under the 1991 TVPA, survivors who have no available local remedies in the country where the human rights abuses happened can file a civil lawsuit in the U.S. for damages against someone who, “under actual or apparent authority, or color of law, of any foreign nation” subjected an individual to torture or to extrajudicial killing in another country. The TVPA has a 10-year statute of limitations but equitable tolling may be available depending on the facts of the case.
Ms. Sarkarati gave an overview of the history and caselaw, from the landmark ATS case Filártiga v. Peña-Irala (2d Cir 1980) to the U.S. Supreme Court’s ruling in Kiobel v. Royal Dutch Petrol (US 2013) which limits the ATS to claims that “touch and concern the territory of the United States with sufficient force.” She also discussed both the legal and practical challenges involved in litigating these cases.
While ATS and TVPA litigation in U.S. courts does not result in jail time for the perpetrators of serious human rights violations, there are other important reasons for using civil litigation as an accountability mechanism including:
Redress for victims;
Ending impunity by exposing human rights abusers;
Denying safe haven to perpetrators in the U.S.;
Documenting history and deterring future abuses;
Developing human rights precedent in domestic courts; and
This international convening to explore the standards and impact of non-governmental organization (NGO) fact-finding on human rights violations is also an appropriate setting to introduce The Advocates’ latest publication:
Human rights advocacy takes many forms, and human rights activists can be found in every corner of the world. Human Rights Tools for a Changing World was created with the express purpose of providing advocates of all backgrounds and experiences a full range of tools and resources to promote human rights in a changing world.
This manual provides practical, step-by-step guidance for individuals and community groups who want to use human rights monitoring, documentation, and advocacy in their work to change policy and improve human rights conditions throughout the world. From framing an issue in terms of internationally recognized human rights standards to submitting a detailed complaint to an international human rights body, advocates can use this manual to plan and implement their work. The manual is designed to aid advocates undertaking a variety of activities—from the relatively simple to the more complex. With background information, key questions to consider, case examples, and practitioner’s tips, this manual provides tools to combat human rights abuses and change social institutions and structures to promote the full realization of human rights.
The practice-oriented sections help advocates to do the following:
Monitor: identify ongoing human rights abuses and collect the information advocates need about these issues;
Document: analyze, present that information, and make recommendations within the framework of international human rights standards;
Advocate: choose and implement a strategy to bring the lived reality closer to the ideals proclaimed by international human rights treaties, including through advocacy at international and regional human rights mechanisms;
Address Impunity and Accountability: identify strategies and legal mechanisms i for holding perpetrators and governments accountable for human rights violations; and
Build Capacity to Improve Human Rights: develop a better understanding of the international human rights system, identify strategies for applying a human rights framework, and develop competence in setting up and effectively running an organization in safety and security.
The Advocates for Human Rights is uniquely qualified to present the human rights tools in this manual. Human Rights Tools for a Changing World is grounded in the The Advocates’ daily work in human rights fact-finding, documentation and advocacy. For more than 30 years, The Advocates has adapted traditional human rights methodologies to conduct innovative research and generate human rights reports and educational trainings designed to bring laws, policies, and practice into compliance with international human rights standards. The Advocates has monitored human rights conditions and produced more than 75 reports documenting human rights practices in dozens of countries around the world on a wide range of human rights issues.
The contents of this manual were also shaped by the requests for assistance and guidance that The Advocates routinely receives from human rights defenders and others seeking to change human rights conditions in their communities throughout the world. Partnership on projects identified and led by local organizations is a powerful means to effectively implement human rights work in the field. At The Advocates, we view our constituencies as partners and form enduring working relationships with organizations and community groups in the U.S. and around the world.
The Advocates’ participatory model of working with in-country civil society organizations to document human rights abuses and coordinate advocacy for change has also demonstrated to us the critical importance of having access to a wide range of human rights tools.Flexibility is key; there is no “one size fits all” human rights methodology. Activists need a full menu of strategies and resources so they can choose the ones that will work best in each specific context. With the right tools, real human rights improvements are eminently possible.