The United States was one of more than two dozen countries that helped draft the 1951 U.N. Refugee Convention, an international treaty designed to protect refugees in the aftermath of World War II. Its key provision: Refugees should not be returned to the country where they fear persecution. The treaty was amended in 1967 to also help those who were displaced by other crises around the world.
A little more than a week into his presidency, President Trump appears to be deviating from history, signing an executive order that bars refugees and immigrants from predominantly Muslim countries from entering the United States. The order suspends admissions of all refugees from Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia for 120 days. It also bars entry of any citizens from those seven countries for 90 days and promises priority to Christian refugees.
The order, signed Friday, resulted in a wave of panic, outrage and confusion among immigrant advocates and reports of detention at U.S. airports of people flying into the country.
One expert, James Hathaway, a law professor from the University of Michigan and an expert on international refugee law, believes Trump’s executive order is not only a departure from the Refugee Convention, but also a policy that parallels with some of the darkest areas of history.
In an interview with The Washington Post, Hathaway, author of “The Law of Refugee Status,” provided some context on where we were before and where we’re headed now.
How big a role did the U.S. play in drafting and enforcing the provision of the Refugee Convention?
Perhaps the most important duty of the Refugee Convention is the part that says a refugee shall never be returned to a place of risk in any manner whatsoever. Before the Second World War, that duty did not apply unless we already gave refugees permission to come to the U.S. The U.S. led the effort to not turn refugees away … refugees fleeing for their lives who cannot wait for permission. The U.S. led the effort to ensure that the Refugee Convention had an unambiguous, absolutely unamendable commitment to never turn refugees away in any manner whatsoever.
The U.S. has traditionally condemned countries that refused to protect refugees based on religion and other protective grounds, and now we’re doing the same thing. … That’s a complete and easy breach of the U.N. Refugee Convention.
Is Trump’s executive order unprecedented? If so, how?
I think what’s extraordinary about it is its arbitrariness. It wouldn’t be unprecedented for a country to find security risks and take measures in response to that. But the countries in the list make no sense. If you actually believe — at least candidate Trump seemed to believe — that Muslims were the problem, then this order did not bar most Muslims. Why would you leave out Egypt, Saudi Arabia and Turkey off the list?
(Some context: Sixty-two percent of Muslims in the world live in the Asia-Pacific region, according to the Pew Research Center. Indonesia and India have the largest and second-largest number of Muslims in their population, respectively. The White House has defended its action, saying the executive order is to strengthen national security and denying it targeted Muslims. Trump has said the goal is to screen out “radical Islamic terrorists.” Stephanie Grisham, a White House spokeswoman, told The Post’s Rosalind Herlderman that the list of “high-risk territories are based on congressional statute and nothing else.”)
It appears to be a list based on speculative assessment without any regional foundation to it. That’s the first thing. The second thing is even if you have reason to believe that a threat exists somewhere, you may not paint all people from one country with the same brush. Other countries could easily say there are some Americans who are security risks to them. Would it be fair to say, therefore, that every single American is now barred? That is irrational on both grounds.
I think what’s different is it is explicitly and patently arbitrary. This one explicitly designates entire citizens of countries as unworthy of protection in the United States without any rational basis. And that’s what’s maybe new in the bluntness of the Trump presidency policy.
You said there are parallels in the past. Can you talk about them?
The St. Louis Voyage … when a boatload of Jewish refugees were turned away by Canada, the U.S. and Cuba, one port after another, as they sailed up and down the cost of North America. Ultimately, they went back (to Europe) because they were starving.
(Some context: The St. Louis sailed from Hamburg to Havana in 1939. Aboard were 937 passengers, almost all of whom were Jews fleeing from Hitler’s Third Reich. The State Department and President Franklin Roosevelt’s White House decided to not let the refugees in and that they must wait to qualify for and obtain immigration visas. Most of the passengers eventually were taken in by other European countries; researchers for the U.S. Holocaust Memorial Museum estimate 254 died during the Holocaust)
We know what happened when people slam doors shut to refugees. It means that innocent people whose lives are on the line ultimately perished. … That we would not read the tea leaves of history and understand that the people fleeing are the enemies of our enemy is beyond comprehension to me.
We’re saying that someone that we agree would be persecuted because of who she is will not get in simply because the U.S. has put her country on a list. We’ve dehumanized that person. History teaches us that whenever we treat an entire group as less than human, disaster tends to follow. We know that we don’t dehumanize people without a risk of them dying. It sets a very, very bad example.
When the U.S. began interdicting Haitians in the 1980s, sending them to international waters back to where they would be persecuted, countries in Western Africa began to follow our example and they began to interdict refugees.
(Some context: President Ronald Reagan, through an executive order, authorized the U.S. Coast Guard to intercept and turn around ships suspected of carrying illegal Haitian immigrants. A White House official said then that no refugees fleeing political persecution will be sent back, and the Coast Guard was ordered to ask Haitians whether they are political refugees. But a legal challenge brought by the Haitian Refugee Center pointed out that refugees were sent to Haiti because of flaws in screening procedures.)
How do you think other countries would respond to Trump’s executive order?
When the U.S. or when Europe acts, people watch and they learn. If the U.S. can bar refugees, then what is to stop other countries from barring Christian and Jewish refugees? Nothing. I think you could easily imagine some countries in the Middle East saying, “If you would not respect our religion, we would not respect your religion.”
I think it actually takes away U.S. moral authority to act on the international stage. … It’s tragically a repeat of an unwillingness to understand who refugee protection works.
Was there a point in history when the U.S. was more welcoming?
After the Second World War, when this Refugee Convention was drafted, the U.S. was perhaps the leading nation in the world in terms of embracing refugees as the source of strength. The U.S., to its credit, admitted a massive number of refugees and it led to our economic recovery. Every year, for decades, we have never not resettled massive numbers of refugees. That has been part of the American culture.
With the Vietnamese refugees, we did a great job helping to lead the world and to show that we’d stand in solidarity. On Syrians, we have totally failed. It’s beyond comprehension how badly we acted under President Obama. To suggest that under President Trump, that we’d do even less, is stunningly tragic.
(Some context: According to the Pew Research Center, nearly 590,000 Vietnamese, Cambodian and Laotian refugees, who fled the new communist government, were allowed entry into the U.S. between 1980 and 1990. Historically, the number of refugees entering the country has fluctuated, with a big dip occurring in 2002 following the Sept. 11, 2001, terrorist attacks. Data from the Pew Research Center showed that numbers of refugees admitted into the U.S. every year from the 1990s to 2000 — many of whom were from Europe and Asia — were much higher than in the last decade.)