Attorney General Sessions violates international law
In yet another example of the Trump administration’s callous treatment of women, U.S. Attorney General Jeff Sessions issued a decision last week that all but eliminates the possibility of asylum in the U.S. for victims of domestic violence. The decision raises a multitude of concerns, not the least of which is Sessions’ assertion that a victim of domestic violence is not eligible for asylum unless their home state “condoned the private actions or at least demonstrated a complete helplessness to protect the victims.”
This standard, established unilaterally by Sessions, is far lower than the international standard for state responsibility to protect victims of domestic violence—the due diligence standard. This prevailing standard imposes on states responsibility for acts or omissions that result in violence against women committed by either state or private actors. Sessions’ decision, which unilaterally overturned a nearly four-year-old precedent, will result in continued suffering for domestic violence victims and put their lives at risk. This is another element of the Trump administration’s broader strategy to chip away at the established protections that guarantee women’s rights and equality for women under the law—whether it’s through imposing the domestic and global gag rules, separating women from their children at the border, or embracing those accused of domestic violence and sexual assault.
Sessions’ decision went far beyond the case under consideration, which was the individual claim of a woman who had suffered repeated abuse at the hands of her husband in El Salvador. Rather, using his vast power as head of the immigration court system—which is part of the Trump administration and not an independent branch of the judiciary—Sessions issued a broad decision that narrowed the scope of asylum protections for victims of domestic violence under every prong of the eligibility test, including the standard for state responsibility for “private” violence. In particular, Sessions’ strict new standard requires asylum applicants to “show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.”
In a leaked memo that provides interim guidelines from the head of the Asylum Division for U.S. Citizenship and Immigration Services, the Trump administration doubled down on this lower standard for private violence.
Measured against the international standard, this decision falls far short. Sessions’ standard is far narrower than the due diligence standard, which sets the contours of how a state must fulfill its obligations to victims of domestic violence. Whether a state, in this case El Salvador, has appropriately responded to domestic violence is measured by the due diligence standard, not by a new standard Sessions established by fiat.
In the 2011 Jessica Lenahan (Gonzales) v. United States case, the Inter-American Commission on Human Rights used the due diligence standard to assess whether the United States had complied with its obligations to protect Lenahan from violence, and established it hadn’t. Over decades of refinement, the law has made clear that the state bears a responsibility to protect victims and to prevent and punish acts of domestic violence, whether that violence is committed by the state or a private actor. The Inter-American Commission found that “this duty encompasses the organization of the entire state structure—including the State’s legislative framework, public policies, law enforcement machinery, and judicial system.”
This inclusive standard means that states are responsible for far more than simply cases where a state “condoned” private violence or demonstrated a “complete helplessness.” In direct contrast to Sessions’ assertion that the failure to act does not constitute a violation of a state’s responsibility, the European Court of Human Rights has found that the obligation is one of “means,” not one of results, meaning that states can be held responsible for failing to act when such action could have had “a real prospect of altering the outcome or mitigating the harm.”
International law does not just define the standard under which gender-based violence should be considered, it also clearly defines a woman’s right to be free from violence as a matter of human rights and equality, including equal protection of the law. The 1979 Convention on the Elimination of all Forms of Violence Against Women (CEDAW)—a treaty that only seven states including the U.S. have not signed—established benchmarks for women’s equality and catalyzed efforts to set criteria for state responsibility to protect women. The CEDAW Committee’s expert guidance on how parties to CEDAW can comply with their obligations makes clear that violence against women is a human rights problem requiring state intervention.
Under the treaty, the right to be free from violence is essential for achieving equality. A state does not fulfill its responsibility to women by merely having anti-violence against women laws on the books, but rather by ensuring that women’s lived experiences are free from of violence. This responsibility was codified by the U.N. General Assembly in the 1993, and again the following year in the Convention of Belem do Para, which applied this obligation to Organization of American States members who signed the treaty, including the El Salvador.
International consensus is now so broad that this standard is considered to be a norm of customary international law, meaning it is binding even on those who haven’t signed a treaty that contains those obligations. Sessions’ recent ruling not only ignores this rule of customary international law but seeks to replace it with a far less stringent standard that essentially eviscerates decades of progress.
In the Matter of A-B-, the case on which Sessions ruled, El Salvador had a clear due diligence obligation under international law to protect the victim, which they appear to have failed to uphold. In judging whether El Salvador can be held responsible for “private criminal conduct,” the U.S. must apply the international standard, not Sessions’ arbitrary and narrow standard. Sessions’ intent in this case is clear. In the decision, he makes the sweeping statement that “[g]enerally, claims by aliens pertaining to domestic violence…perpetrated by non-governmental actors will not qualify for asylum.” The decision re-establishes the notion of domestic violence as a “private matter” in the home, rather than one that a state is obligated to address.
Finally, Sessions argues that “no country can provide complete protection,” a curious, or at least curiously amateurish, legal argument. This theory of state responsibility seems to be based on the notion that since the state can never prevent all crimes, it is under little obligation to try to prevent them. Under this standard, established outside a formal judicial system without proper checks and balances, states have limited responsibility to protect citizens at all. More importantly for women, this judgment determines that women do not have a basic fundamental right to be free from violence, and that countries do not bear a due diligence obligation to prevent violence, protect women from violence, or ensure that perpetrators are held accountable for violence.
Like so many acts of the Trump administration, the decision undoes decades of progress for women’s equality—which appears to have been part of the Trump administration’s plan all along.
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