It hurts when migrants are not treated with respect
The public outcry was immediate, massive and powerful after the Trump administration announced its “zero tolerance” strategy in 2018, leading to the mass forced separation of migrant parents and children and mandatory incarceration of asylum seekers. Thousands of citizens, human-rights organisations and religious leaders united in condemning this policy. In contrast to this condemnation, governments around the globe stayed silent. That ominous silence speaks volumes about sharply eroding human rights all over the world.
Nevertheless, the public outcry led to denials, blame and temporary slippage in the government migration-control strategy based on deterrence. The administration reserved the option to return to the policy if numbers of border arrivals continued to soar. Sources suggest that the government did not really abolish the separation policy, with methods only becoming more subtle and mischievous.
As images and audio footage of crying children in cages and holding facilities went viral, attorneys and NGOs applied public pressure and invoked legal domestic and international measures. On the domestic level, several cases were filed on behalf of separated families. In June 2018, a federal judge in California ruled in favour of reunification of children under the age of five with parents within 14 days. At the international level, the Inter-American Commission on Human Rights, IACHR, granted pecuniary measures in August in favour of migrant children forcibly separated from their families on the basis of this policy.
IACHR is an autonomous organ of the Organization of American States that examines allegations of human rights violations of the American Convention on Human Rights, though the United States is one of the few member states that has not ratified the convention and thus does not consider itself bound by the commission’s decisions. Several Latin American national human rights organisations and law firms filed submissions on behalf of detained children to IACHR, with the commission requesting that the United States adopt necessary measures to protect the rights to family life, personal integrity and identity of families, assuring reunification and communication guarantees.
The US response was prompt and harsh. The administration, similar to leaders in China or Russia, rejected external criticism as interference in US internal affairs demonstrating disregard for international legal standards and protections for refugees. As the New York Times reported, the US ambassador to the United Nations, Nikki Haley responded to the UN High Commissioner’s criticism, by stating,
“once again, the United Nations shows its hypocrisy by calling out the United States while it ignores the reprehensible human rights records of several members of its own Human Rights Council.”
Separating asylum-seeking families is rare, and migrants and asylum seekers face horrific conditions in high-income countries that could afford more humane treatment. The wealthy countries try to send a message to those seeking protection from war, natural disaster, financial distress and persecution: Do not come, you are not welcome, and if you come, expect a long and painful asylum process.
The US is not alone. In 2017, courts in Australia ordered the government to pay $70 million plus costs to refugees and asylum seekers who had suffered physical and mental injuries in offshore Manus Island detention centers. Conditions in such centres were so dire, constituting such a massive violation of international human rights standards, that they arguably reached the threshold of a crime against humanity.
Countries have the legal obligation to provide humane treatment for asylum seekers during the asylum process. International binding standards that these states agreed to follow prohibit criminalisation of asylum seekers for entering a state’s territory, incarceration, and separation of children from their parents and caregivers, and require allocation of primary care. Yet states around the globe intentionally fail to do so, instead engaging in a race to the bottom in restricting such guarantees. The intention behind this deliberate degradation of standards is to deter asylum seekers from seeking protection. As states undercut each other in their migration-control strategies based on deterrence, they not only erode the established international asylum standard, but also destroy their own credibility in pointing out heinous violations in other states without seeming hypocritical.
Hence, few western governments publicly condemned the US family-separation policy. Civil society, human rights activists, institutions and some judges on a domestic and international level remain the leaders in this battle.
As states undercut each other in their migration-control strategies based on deterrence, they not only erode the established international asylum standard, but also destroy their own credibility