International Human Rights Law RAIO Lesson Plan
International Human Rights Law RAIO Lesson Plan
TRAINING MODULE
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International Human Rights Law
MODULE DESCRIPTION:
This module introduces you to the fundamentals of international human rights law. You
will learn about the sources of international law, including treaties and customary
international law. You will also gain knowledge of core international human rights and
international laws that are relevant to your cases.
2. Summarize the relationship between international human rights law and U.S.
domestic law.
INSTRUCTIONAL METHODS
METHOD(S) OF EVALUATION
REQUIRED READING
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1.
2. •
ADDITIONAL RESOURCES
1. United Nations. Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. G.A. Res. 39/46, U.N. GAOR, Dec. 10, 1984.
2. United Nations. International Covenant on Civil and Political Rights. G.A. Res.
2200A (XXI), UN GAOR, Dec. 16, 1966.
4. United Nations. Universal Declaration of Human Rights. G.A. Res. 217(a)(III), U.N.
GAOR, Dec. 10, 1948.••
CRITICAL TASKS
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SCHEDULE OF REVISIONS
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International Human Rights Law
Table of Contents
1 INTRODUCTION .......................................................................................................................9
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8 CONCLUSION .........................................................................................................................33
9 SUMMARY ..............................................................................................................................33
Required Reading...........................................................................................................................45
Additional Resources .....................................................................................................................45
Supplements ...................................................................................................................................45
Required Reading...........................................................................................................................46
Additional Resources .....................................................................................................................46
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Supplements ...................................................................................................................................46
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International Human Rights Law
Throughout this training module, you will come across references to adjudication-
specific supplemental information located at the end of the module, as well as links
to documents that contain adjudication-specific, detailed information. You are
responsible for knowing the information in the referenced material that pertains to
the adjudications you will be performing.
For easy reference, supplements for international and refugee adjudications are in
pink and supplements for asylum adjudications are in yellow.
You may also encounter references to the legacy Refugee Affairs Division (RAD)
and the legacy International Operations Division (IO). RAD has been renamed the
International and Refugee Affairs Division (IRAD) and has assumed much of the
workload of IO, which is no longer operating as a separate RAIO division.
1 INTRODUCTION
Recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in
the world.
Human rights are the rights to which all people are entitled by virtue of being human.
Within the large scope of human rights, some rights are considered to be of particular
significance. Although certain international instruments permit derogation of these rights
“in time of public emergency threatening the life of the nation” (ICCPR, Art 4(1)), “all
human rights are universal, indivisible, interrelated, interdependent and mutually
reinforcing, and . . . all human rights must be treated in a fair and equal manner, on the
same footing and with the same emphasis.” 1
The concept of human rights and human rights principles can be traced to antiquity, e.g.,
the Ten Commandments, the Code of Hammurabi, and the Rights of Athenian Citizens. 2
Although this module will not examine the origins of human rights concepts, it is
important to understand and recognize that the roots of international human rights law go
deep into history.
1
See, e.g., G.A. Res. 60/251, U.N. Doc. A/RES/60/251 (Mar. 15, 2006).
2
Weissbrodt, Fitzpatrick and Newman, International Human Rights: Law, Policy and Process (3d ed. 2001).
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International Human Rights Law
In early religious and secular writings, there are many examples of what we now know as
international law. There are, for example, the detailed peace treaties and alliances
concluded between the Jews and the Romans, Syrians and Spartans. The Romans knew
of a jus gentium, a law of nations, which Gaius in the second century described as law
common to all men that could be applied by Roman courts to foreigners when the
specific law of their own nation was unknown and when Roman law was inapposite.
Later, in the seventeenth century, the Dutch jurist Hugo Grotius (1583-1645) argued that
the law of nations also established legal rules that bound the sovereign states of Europe,
then just emerging from medieval society, in their relations with one another. 3
Although historically human rights violations have been a significant contributing factor
to the flight of refugees and remain an obstacle to their safe return home, you should
remember that human rights principles apply to other migration issues as well. Thus,
whether conducting protection or other adjudications, it is important for you to have a
thorough understanding of human rights laws and humanitarian principles.
This module discusses human rights protected by international law, focusing on those
that most often arise in the protection context. You should become familiar with the types
of human rights that are protected in international instruments to assist in your future
adjudications.
3
Weston, Falk and Charlesworth, An Introduction to International Law and World Order (3d ed. 1997).
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2.1 Introduction
International human rights law refers to the body of international law designed to
promote and protect human rights at the international, regional and domestic levels.
International human rights law primarily consists of treaties and customary international
law. Other international human rights instruments, while not legally binding, contribute
to the implementation, understanding, and development of international human rights
law. This module addresses refugee protection in brief because it is discussed in greater
detail in the RAIO Training Module, Introduction to the United Nations High
Commissioner for Refugees and Concepts of International Protection.
2.2 Treaties
Treaties are written agreements between two or more States, whether embodied in a
single instrument, or in two or more related instruments. Every treaty in force is binding
upon the signatories and as such must be executed in a manner consistent with the treaty. 4
After a treaty is signed, it does not go into effect immediately if it requires ratification by
the legislative branch of a State’s government. Additionally, States are permitted to make
declarations, understandings, or reservations that limit the application of a particular
treaty and may also indicate that they accept the treaty with reservations regarding certain
provisions. 5
When the United States signed the Protocol to the Refugee Convention in 1968, a
non-self-executing treaty, passage of implementing legislation in the form of the
1980 Refugee Act, some 12 years later, was required to make the treaty judicially
enforceable.
4
This module does not explore treaty enforcement mechanisms.
5
U.S. Const. Art. II § 2 provides that, with the advice and consent of two-thirds of the Senate (ratification), the
President has the authority to enter into treaties with other nations.
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Prior to World War II, treaties were less popular, and custom was often viewed as the
principal source of international law, which primarily consisted of doctrines, principles
and rules developed through the customary practice of states. 6
Declarations and resolutions made by inter-governmental bodies are not binding law.
However, they may be evidence of customary international law, which is binding on
States. For example, the Universal Declaration of Human Rights does not have the
binding force of a treaty on States, but some of its principles are binding customary
international law.
6
Weston, Falk and Charlesworth, An Introduction to International Law and World Order (3d ed. 1997).
7
Article 38 of the International Court of Justice Statutes.
8
For example, diplomatic privileges, including immunity, are widely universally accepted as customary practice.
9
See The Paquete Habana, 175 U.S. 677, 700 (1900); Statute of the International Court of Justice, Art. 38(1), 59
Stat. 1031, 1060 (1945).
10
U.S. Const. Art. VI.
11
Reid v. Covert, 354 U.S. 1 (1957).
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Customary international law, in the absence of conflicting domestic law, is binding on the
United States. 12 U.S. Courts must construe domestic statutes in a manner that is consistent
with international obligations whenever possible. 13
When a State becomes party to a treaty, it has the right to make reservations regarding
particular provisions. The United States has issued reservations upon ratification of the
International Covenant on Civil and Political Rights (ICCPR), the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the
Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment (CAT).
U.S. asylum and refugee law is rooted in international law. In 1968, the United States
acceded to the 1967 United Nations Protocol Relating to the Status of Refugees (1967
The Paquete Habana, 175 U.S. 677, 700 (1990); Matter of Medina, 19 I&N Dec. 734 (BIA 1988). “The Paquete
12
Habana, The Lola –outlines in broad fashion the role of customary international law before American courts.”
13
Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804).
14
See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
15
INA, Section 207 (f); 8 C.F.R. § 208.1(b); International Religious Freedom Act (IRFA), Pub. L. No. 105-292,
Section 602(a), 112 Stat. 2787 (1998).
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Protocol), which incorporates the 1951 United Nations Convention Relating to the Status
of Refugees (Refugee Convention). The fundamental treaty obligation to protect refugees
is Article 33 of the Refugee Convention, which prohibits the refoulement 16 of a refugee to
a country where the refugee would be persecuted. 17 For more information on international
refugee law, please refer to RAIO Training Module: Overview of UNHCR and Concepts
of International Protection.
The U.S. Supreme Court, federal courts, and the Board of Immigration Appeals (BIA)
have all recognized that it may be appropriate in certain cases to consider international
law when adjudicating requests for asylum and withholding of removal. 18 Courts have
consulted publications of the United Nations High Commissioner for Refugees
(UNHCR), which plays a supervisory role under the Protocol, for guidance on issues
related to protection. 19 It is clear, however, that existing U.S. law supersedes international
law, but international law or other guidance may inform U.S. practice. 20
Additionally, you may consider the Geneva Conventions when determining whether an
act is a legitimate act of war, or persecution. The Geneva Conventions are often referred
to as the law of war or the law of armed conflict, and enumerate basic protections for the
individual in times of war and armed conflict. The Geneva Conventions are part of a
body of law referred to as international humanitarian law.
You should first consult U.S. law for guidance on evaluating a protection claim before
seeking guidance from international law. If there is no binding U.S. law addressing the
specific legal issue, you may reference international law to help determine whether an
applicant meets the definition of a refugee.
International human rights law may provide guidance in the following situations:
16
Refoulement- The return by a State, in any manner whatsoever, of an individual to the territory of another State in
which his or her life or liberty would be threatened, or he or she may be persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion; or would run the risk of torture.
Refoulement includes any action having the effect of returning the individual to a State, including expulsion,
deportation, extradition, rejection at the border, extra-territorial interception and physical return. Glossary on
Migration, International Organization for Migration, (2004) p. 52.
17
Article 33 of the Refugee Convention is often referred to as the “non-refoulement” provision. The United States
Supreme Court has held that this obligation applies only to refugees within the territory of the United States. See
Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).
See INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987); Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994);
18
Guidance Notes, Guidelines on International Protection, advisory opinions on specific cases and issues, and
UNHCR Executive Committee Conclusions.
20
The United States Supreme Court has previously looked to international law when faced with an issue on the
interpretation of the Immigration and Nationality Act. See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999).
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International Human Rights Law
Three of the most important international instruments pertaining to human rights are
collectively known as the International Bill of Human Rights:
• The Universal Declaration of Human Rights (UDHR)
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
There are differences among States in how categories of rights are weighed, based on the
domestic balance between state, community, and individual rights. Culture and religion
also affect States’ view of these categories of rights. However, the international
community has agreed that there are certain human rights and freedoms so fundamental
to human dignity that States have entered into agreements to ensure non-derogation of
those rights.
The specific rights enumerated in various human rights instruments can be divided into
several categories:
• Individual security rights: protects individuals against crimes such as murder,
massacre, torture, and rape
• Due process rights (5th and 14th Amendment to the United States Constitution):
protects individuals against abuse of the legal system, such as imprisonment without
trial, trial with a jury, and excessive punishment
• Liberty rights (1st and 4th Amendment to the United States Constitution):
protects freedom of belief, freedom of religion, freedom of movement, freedom to
assemble, and freedom of association
• Political rights: protects an individual’s liberty to participate in politics, including
activities such as communicating, protesting, voting, and serving in political office
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• Equality rights: protects equal citizenship, equality before the law, and non-
discrimination
• Social rights: protects the right to access education for all citizens and prevents
severe poverty or starvation
Subsequent international human rights treaties have expanded upon the Universal
Declaration of Human Rights. Some States have adopted instruments at the regional level
reflecting human rights concerns specific to that region. Many States have also adopted
constitutions and other laws which formally protect basic human rights and incorporate
some of the categories listed above. In the International Human Rights Matrix, below,
further examples are provided that correlate to the International Bill of Rights.
Background
In the aftermath of World War II, Eleanor Roosevelt spearheaded the U.S. involvement in
the creation of the United Nations, as well as the drafting of the Universal Declaration of
Human Rights (UDHR). Eleanor Roosevelt’s diplomatic efforts with the Soviet Bloc
countries in particular assisted greatly in the final acceptance of the UDHR. On
December 10, 1948 the United States voted in favor of the resolution to adopt the
Declaration before the United Nations General Assembly.
As the cornerstone of the international human rights movement, the UDHR was drafted
as ‘a common standard of achievement for all peoples and nations.’ It was the first time
in history that one document designated the basic civil, political, economic, social and
cultural rights to which all humans are entitled. It has since been widely accepted by the
international community as the fundamental standard of human rights that all States
should respect and protect. 21
Legal Force
Many scholars assert that all of the rights enumerated in the UDHR have become
customary international law.
21
From the Universal Declaration of Human Rights Homepage, found at the United Nations Human Rights: Office
of the High Commissioner for Human Rights website.
22
Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J.
Int’l & Comp. L. 287, 290 (1995/1996). Hurst Hannum, Associate Professor of International Law, The Fletcher
School of Law and Diplomacy, Tufts University, wrote this article based on a report he prepared as Rapporteur of
the Committee on the Enforcement of International Human Rights Law of the International Law Association.
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Nevertheless, others have argued that, while certain of the rights identified in the UDHR
may constitute customary norms, other rights, especially certain economic and cultural
rights, have not achieved this same status. 23
You should pay particular attention to certain rights preserved in the UDHR, one of
which is the right to seek asylum, explained below. 24 Please see the International Human
Rights Matrix, below, for additional rights contained in the UDHR.
(1) Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising
from non-political crimes or from acts contrary to the purposes and principles of
the United Nations.
Of particular note is that while Article 14 provides that individuals have the right
to seek and enjoy asylum, it has not been interpreted to mean that everyone has the
right to be granted asylum. Article 14 was carefully worded to protect States’
sovereign right to control the entry of aliens into their territory. 25
23
See, e.g., Restatement of the Foreign Relations Law of the United States (Third) § 701, Reporters’ Notes 4-6
(1987).
24
Art. 14, Universal Declaration of Human Rights. G.A. Res. 217(a)(III), U.N. GAOR, Dec. 10, 1948.
25
See Martin, "Refugees and Migration," United Nations Legal Order, Vol. 1, Schachter and Joyner, eds.
(Cambridge: Cambridge University Press 1995).
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On October 5, 1977 the United States signed both the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR), and ratified the ICCPR on June 8, 1992. The ICCPR and the
ICESCR implement and expand protection of the rights set forth in the UDHR.
5.1.2 International Covenant on Civil and Political Rights (ICCPR) (Opened for
signature 16 December 1966)
The ICCPR proscribes certain conduct by States in order to protect civil and political
rights of individuals or groups of individuals. Some of the rights that often arise in the
context of protection adjudications and that are addressed in the ICCPR are listed in the
International Human Rights Matrix below.
It is important to remember that not all human rights violations constitute persecution.
Some human rights violations constitute persecution on their own, while others might
constitute persecution only when considered along with other factors or cumulatively. A
more detailed discussion about the grounds for persecution can be found in the RAIO
Training Modules: Refugee Definition and Definition of Persecution and Eligibility Based
on Past Persecution.
Certain rights listed in the ICCPR known as non-derogable rights. These are rights
deemed so important that they must be protected under all circumstances, even in time of
public emergency that threatens the life of the nation. No derogation or violation of these
rights is permitted.
In contrast to the provisions in the ICCPR, the provisions in the ICESCR are generally
viewed as goals to which the parties agree to aspire. Article 2 provides that the States
party to the ICESCR should undertake steps, to the maximum of available resources, to
achieve progressively the full realization of the rights recognized by the ICESCR. A few
key economic, social, and cultural rights are listed on the International Human Rights
Matrix, below.
Core Rights
26
This is a non-exhaustive list.
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Non-Derogable Rights
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a contractual obligation
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to be compelled to testify
against oneself
Economic Rights
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Social Rights
Cultural Rights
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language
In addition to the International Bill of Rights, there are other human rights treaties and
universal instruments, including regional treaties. Listed below are some examples of
these instruments. The legal status of each instrument listed below varies as there are
some which the United States has not yet ratified.
For the purposes of determining inadmissibility, the INA adopts the definition of genocide as developed in the
27
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• American Convention on Human Rights [also known as the Pact of San Jose, Costa
Rica] (22 November 1969) signed by the United States on June 1, 1977, but not
ratified.
• African [Banjul] Charter on Human and Peoples' Rights (27 June 1981)
• Council of Europe Convention for the Protection of Human Rights and Fundamental
Freedoms (4 November 1950) and its Protocols
5.2.3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT)
The United States became party to the Convention Against Torture (CAT) on October 21,
1994.
Definition of Torture
States that are party to the CAT are required to fulfill the following obligations:
• take effective legislative, administrative, judicial, or other measures to prevent acts of
torture in any territory under its jurisdiction (Art. 2)
• not expel, return, or extradite a person to another State where there are substantial
grounds for believing that the person would be in danger of being subject to torture
(Art. 3)
• make torture a punishable offense; take into custody individuals who torture; and
submit cases of torture to the proper authorities for prosecution (Arts. 4-7)
U.S. Ratification
The United States Senate ratified the CAT on October 27, 1990. The Senate Resolution
consenting to ratification of the CAT offers a number of reservations and
28
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (27 June 1987).
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“understandings” regarding the United States’ obligations under the CAT. 29 President
Clinton deposited the United States instrument of ratification with the United Nations
Secretary General on October 21, 1994. For a discussion on the definition of “torture” as
modified by the U.S. “understandings,” see RAIO Training Modules, Refugee Definition
and Definition of Persecution, and Eligibility Based on Past Persecution (which notes
that torture inflicted on account of a protected ground always rises to the level of
persecution) and the Asylum Division lesson plans on Reasonable Fear of Persecution
and Torture Determinations and Credible Fear.
No Exceptions
Article 2 of the CAT provides no exceptions for the use of torture, stating specifically
that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of
war, internal political instability or any other public emergency, may be invoked as a
justification of torture,” nor may an order from a superior officer of public authority be
invoked as justification.
As noted above, Article 3 of the CAT prohibits the expulsion, return, or extradition of a
person to a country where there are substantial grounds for believing that the person
would be in danger of being tortured. This provision is very similar to the non-
refoulement obligation (Article 33) in the 1951 Convention relating to the Status of
Refugees (Refugee Convention), but with some important distinctions, as described
below.
• Motive for Torture Irrelevant—unlike the non-refoulement duty in the Refugee
Convention, the CAT does not require that the threat of torture be tied to any of the
five grounds identified in the refugee definition, or any other ground.
• Public Official or Person Acting in an Official Capacity – the severe pain or
suffering must be inflicted by or at the instigation of or with the consent or
acquiescence of a public official. 30
• No Bars to Withholding—the CAT contains no bars to protection based on criminal
or terrorist conduct. For instance, an “aggravated felon” is not barred from obtaining
protection under Art. 3, if the individual can establish that it is more likely than not
that he or she would be tortured if deported to another country.
• Standard of Proof—the United States has adopted an important “understanding” of
Article 3. The United States understands the phrase, “where there are substantial
grounds for believing that he would be in danger of being subjected to torture” in
Article 3 to mean “if it is more likely than not that he would be tortured. 31 Thus, the
29
Senate Executive Report, 101-30 (1990).
30
8 C.F.R. § 208.18(a)(1).
31
Senate Executive Report, 101-30 (1990).
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standard of proof required for protection under Article 3 is identical to the standard of
proof required to obtain withholding of removal under section 241(b)(3) of the
Immigration and Nationality Act (INA) (based on likelihood of persecution).
• Forward Looking—there is no protection offered based on past torture alone.
Evidence of past torture may be substantial evidence of the likelihood of future harm
but the applicant must show a risk of torture in the future.
• No Provisions for Adjustment of Status—the United States’ regulations
implementing the CAT do not allow those individuals granted protection under
Article 3 of the CAT to adjust their status to permanent residence. Furthermore, an
individual granted such protection could be returned to his or her country of
nationality at such time as the likelihood of torture is diminished.
Implementation
On October 21, 1998, President Clinton signed legislation that required the Department
of Justice to promulgate regulations to implement the United States’ obligations under
Article 3 of the CAT, subject to any reservations, understandings, declarations, and
provisos contained in the United States Senate resolution to ratify the CAT. 32
Pursuant to the statutory directive, the U.S. Department of Justice published an interim
regulation that allows individuals to seek protection under the CAT. 33
The definition of torture is relevant to your work because harm rising to the level of
torture is always persecution, provided it is on account of one of the five protected
grounds for asylum and refugee status determinations.
An individual must be granted withholding of removal under the CAT if it is more likely
than not the individual would be tortured in the country to which the individual would be
removed, and no mandatory bars to withholding apply (including conviction of an
aggravated felony, persecution of others, terrorist activities.) Withholding of removal is
country specific, which means the individual could be removed to a third country, so long
as he or she would not be tortured there. 34
32
Section 2242(b) of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. 105-277). Prior to this, the
INS considered requests for protection under Article 3 through an informal process, in which asylum officers
conducted interviews and the INS Office of General Counsel made determinations on whether protection was
required.
33
64 Fed. Reg. 8478 (February 19, 1999).
34
8 C.F.R. § 208.16(c) and (d).
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would be tortured in the country to which he or she has been ordered removed. Deferral
of removal is more easily terminated than a grant of withholding of removal. 35
You do not make decisions on eligibility for withholding or deferral of removal under the
CAT. Within RAIO, officers are tasked with conducting “credible fear of torture” and
“reasonable fear of torture” screenings in certain administrative removal cases. Those
who are found to have a reasonable fear of torture are referred to an immigration judge to
apply for withholding or deferral of removal under the CAT. 36 You are conducting a
screening determination rather than an ultimate determination on eligibility. In a
“reasonable fear of torture” screening where CAT applies, you will determine only if
there is a reasonable fear of torture or not. You will not determine eligibility under CAT.
Additional information about CAT screenings can be found in the Asylum Division
Training Module: Reasonable Fear of Persecution and Torture Determinations.
6 GENEVA CONVENTIONS
6.1 Introduction
The Geneva Conventions were especially designed for the protection of individuals in
times of war or armed conflict. Their application to protection law is important because
many refugees and asylees have fled countries that are engaged in civil war. An
understanding of international norms governing the conduct of combatants may assist
you in evaluating whether the harm an applicant has experienced in the context of
warfare may be considered persecution or is harm incidental to armed conflict.
35
8 C.F.R. § 208.17.
36
8 C.F.R. § 208.31.
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Familiarity with the Geneva Conventions will also enable you to determine whether
applicants who served as combatants have taken actions that violate international law.
While the Geneva Conventions may provide guidance in evaluating asylum and refugee
eligibility, the BIA has held that neither the Fourth Geneva Convention nor customary
international law provides potential relief from deportation that can be sought over and
above that which is provided by the INA. 37
The most important international instruments governing conduct during warfare are the
Geneva Conventions of 1949. With the exception of Article 3 in each convention, the
Geneva Conventions apply to international armed conflict, that is, war between two or
more nations. The Protocols, however, apply to civil war and colonial domination.
• Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (1949)
• Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea (1949)
• Geneva Convention Relative to the Treatment of Prisoners of War (1949)
• Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(1949)
• Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
The Protection of Victims of International Armed Conflicts (Protocol I) (1977)
Protocol I applies specifically to “armed conflicts in which peoples are fighting
against colonial domination and alien occupation and against racist regimes in the
exercise of their right of self-determination.” Art. 1, para. 4.
• Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977) 38
Protocol II expands on Article 3, common to all four of the Geneva Conventions, and
applies to armed conflicts that take place in the territory of a contracting party
“between its armed forces and dissident armed forces or other organized armed
groups which, under responsible command, exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military operations
and to implement [the] protocol.” Art. 1, para. 1
37
Matter of Medina, 19 I&N Dec. 734 (BIA 1988)
38
In Matter of Medina, 19 I&N Dec. 734, 736, n. 3 (BIA 1988), the BIA noted that the Protocol was signed by the
United States and 101 other nations and that President Reagan submitted it to the Senate on January 29, 1987, but it
has not been ratified. For a list of current countries that have signed, ratified or acceded to the Protocol, see U.N.
Treaties website.
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International Human Rights Law
You are more likely to encounter refugees and asylum-seekers who come from countries
where civil war or some other form of internal strife has affected the civilian population
than countries involved in international armed conflict. Therefore, Article 3, which
applies in the case of internal armed conflict (i.e., civil war), is the most relevant to
protection adjudications.
The provisions governing conduct during armed conflict may provide guidance in
evaluating the harm an applicant experienced in the context of the conflict and whether
the harm constitutes persecution or harm incidental to armed conflict. Additionally, these
provisions may help to define persecutory activities if the applicant was a combatant.
Relevant portions of Article 3 include, but are not limited to the following:
• persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat [out of combat] by
sickness, wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, color, religion or faith,
sex, birth or wealth, or any other similar criteria
• Prohibition of the following acts with respect to the above-mentioned persons:
violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture
taking of hostages
outrages upon personal dignity, in particular humiliating and degrading treatment
passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized peoples
Article 3 also requires the collection and care of the wounded and sick.
7.1 Introduction
There are a number of international instruments establishing and defining basic standards
for the treatment of refugees, the most important of which are the 1951 United Nations
Convention Relating to the Status of Refugees (Refugee Convention) and its 1967
Protocol Relating to the Status of Refugees (Refugee Protocol). The Refugee Convention
sets out the rights of refugees and establishes the standards for their treatment in the
countries that receive them. The Refugee Protocol was drafted to remove the geographic
and time limitations of the Convention, which was drafted in the post-World War II
context.
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International Human Rights Law
The history, principles and foundation of international refugee law, including the
instruments pertaining to refugees and stateless persons, will be discussed in greater
detail in the RAIO module, UNHCR Overview and Concepts of International Protection.
In this module, you will find a non-exhaustive list of potentially useful instruments that
may be relevant in your work.
8 CONCLUSION
This lesson plan is designed to provide you with information on the fundamental
principles of international human rights law and its relevance in protection adjudications,
as well as a basic understanding of humanitarian law and the sources of international law.
You are not expected to know all of the international rights documents or principles that
could arise in the context of protection adjudications, but you should be familiar with the
core human rights instruments and the rights they protect. When adjudicating a protection
case, you may consider if any international law instrument can help you evaluate
eligibility for the benefit sought.
9 SUMMARY
9.1 Sources of International Law
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International Human Rights Law
Treaties are part of the “supreme law” of the land. Customary international law is part of
the U.S. law where it does not conflict with existing domestic laws.
Asylum and refugee law is rooted in international law. If there is no U.S. law addressing
a specific legal issue, international law may assist in determining how the United States
should interpret the issue. International law may assist you in evaluating, among other
things:
• whether particular acts constitute persecution
• whether punishment for a particular crime constitutes persecution or legitimate
prosecution
• whether a crime is considered political
The most important international instruments pertaining to human rights are collectively
known as the Universal Bill of Human Rights. The Universal Bill of Human Rights
includes the following:
• The Universal Declaration of Human Rights (UDHR)
• The International Covenant on Civil and Political Rights (ICCPR)
• The International Covenant on Economic, Social and Cultural Rights (ICESCR)
Some scholars assert that all of the rights enumerated in the UDHR have become
customary international law. States around the world have broadly accepted the UDHR
and its provisions, resulting in the establishment of common human rights norms.
The ICCPR proscribes certain conduct by States in order to protect civil and political
rights of individuals or groups of individuals. Certain rights listed in the ICCPR are know
as non-derogable rights, which means that these rights are so important that they must be
protected under all circumstances, even in times of public emergency.
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International Human Rights Law
Provisions in the ICESCR are generally viewed as goals to which parties agree to aspire.
Parties to the ICESCR agree to take steps to the maximum of available resources to
guarantee rights regarding standards of living, employment, education, scientific and
cultural rights, and certain social rights.
In addition to the International Bill of Human Rights, there are other core human rights
treaties and universal instruments, including regional treaties.
9.5.1 Convention Against Torture and Other Cruel, Degrading or Inhuman Treatment or
Punishment (CAT)
The United States became party to the Convention Against Torture (CAT) on October 21,
1994. The CAT permits no exceptional circumstances justifying the use of torture. States
that are party to the CAT must take effective legislative, administrative, judicial, or other
measures:
• to prevent acts of torture in any territory under its jurisdiction
• to prevent the expulsion, return, or extradition of an individual to another state where
the individual is more likely than not to be subject to torture
• to make torture a punishable offense, take into custody individuals who torture, and
submit cases of torture to the proper authorities for prosecution
In contrast to the 1951 Convention relating to the Status of Refugees, the CAT:
• requires action, consent, or acquiescence by a public official
• requires custody and specific intent
• gives no weight to the public official’s motive for torture
• has no bars
• has an identical standard of proof required to obtain withholding of removal
• is only forward looking, and offers no protection on past torture alone
• has no provisions permitting individuals subject to CAT to adjust status
The four Geneva Conventions and their two Protocols are the most important conventions
governing conduct in the context of armed conflict. Article 3, which is common to all
four conventions, governs internal armed conflicts (i.e., civil war). Article 3 prohibits
certain acts of violence against individuals who are not involved in the hostilities or have
laid down their arms, and requires care for the sick and wounded.
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International Human Rights Law
9.7 International Laws Pertaining to the Rights of Refugees and Stateless Persons
There are a number of basic international instruments that establish and define basic
standards for the treatment of refugees. The most significant are the 1951 United Nations
Convention relating to the Status of Refugees, and its 1967 Protocol relating to the Status
of Refugees.
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Practical Exercises International Human Rights Law
PRACTICAL EXERCISES
Practical Exercise # 1
Read the three scenarios below and respond to the following questions for each fact
pattern:
Anna is from a Pakistani tribal background where forced marriages are common.
When she was young, she saw her sisters and brother being forced into marriages.
She has seven sisters and three of them got married at the same time. When one of
her sisters refused to marry, she witnessed her father put an axe to her sister's
throat. All her sisters had to go through with the marriages and today none of the
arranged marriages has worked out.
One of her sisters was raped by her husband resulting in her becoming pregnant
with her first child. Her parents didn't consider the forced intercourse to be rape
because under their cultural law, the husband is seen to have a right over his wife.
Anna’s sister is now divorcing her husband and trying to rebuild her life, which has
resulted in Anna's parents disowning Anna’s sister.
Scenario #2 Ismael
When Ismael was 14, he was recruited into the Sierra Leone Army. He remained a
soldier for almost three years. He is currently studying in the U.S.
In his testimony, he described his first combat experience. "When we got there we
were in an ambush, the rebels were attacking where we were in a bush. I did not
shoot my gun at first, but when you looked around and saw your schoolmates,
some younger than you, crying while they were dying with their blood spilling all
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over you, there was no option but to start pulling the trigger. I lost my parents
during the war, they told us to join the army to avenge our parents."
Scenario #3 Michal
Practical Exercise # 2
Complete the table below by listing violations of human rights for each country.
Identify whether the group believes the human rights violations are serious enough
to flee the country and seek international protection?
Brazil
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Practical Exercises International Human Rights Law
Spain
Egypt
Practical Exercise # 3
Read through the fact patterns below and be prepared to discuss each scenario in
terms of the following questions:
• Does the harm suffered by the applicant violate fundamental human rights?
• Which human rights are implicated? Locate the appropriate articles of the
international agreements.
• Which violations are most likely to be relevant to asylum adjudication, i.e.
those that cause an individual to abandon his or her country and seek
asylum?
Fact Pattern 1
Mohamed was a religious student affiliated with the al Hawza religious seminary,
which was considered by the former Iraqi government to promote opposition to the
regime. In addition, his older brother Mustafa was a member of the Daawa Party, a
Shi'a religious organization banned by the former Iraqi regime. In 1989, his brother
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Following the end of the Gulf War in February 1991, the Shi'a in southern Iraq rose
up against Saddam Hussein. Mohamed, then only 15 years old, took part in the
uprising, and helped to free his older brother Mustafa from detention. One week
later, the Iraqi army moved in to put down the rebellion. During the fighting that
ensued, Mohamed helped carry the wounded and also took up arms, killing at least
one Iraqi soldier. The Iraqi regime mercilessly crushed the rebellion, capturing and
killing thousands of perceived opponents, including women and children. His
brother fled the country, eventually obtaining asylum in Sweden.
Authorities soon came to Mohamed's home and forced him and his family into a
van. They were taken to a security center in town to be separately interrogated.
Mohamed and his father were detained in a small cell with about 20 other
prisoners. He was beaten and questioned about his involvement with the Intifada,
and the whereabouts of his brother. He and his mother were released a week later,
but his father "disappeared." Every few months, Mohamed would be called into the
police station and interrogated about his brother's whereabouts. He was often
beaten. Although Mohamed wanted to leave Iraq, he feared being caught and
punished for trying to leave the country without permission, which he knew he
would never receive.
Finally, Mohamed decided to take the risk and leave the country. He fled to
Turkey, where he was granted refugee status by UNHCR. His rights in Turkey,
however, were very restricted. He was not authorized to work and was not entitled
to any public welfare. In 2000, he decided to travel to the United States, where his
uncle lived and applied for asylum in the US.
Fact Pattern 2
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Practical Exercises International Human Rights Law
of detergent. After the plane took off, he told the pilot that they had a bomb and
demanded that he fly the plane to Thailand. Many passengers were afraid at first,
but later realized that Naw intended them no harm. When the plane landed in
Thailand, Naw demanded that the Burmese Government hold free and fair
elections, which the Burmese Government refused to do. Naw soon released all of
the passengers unharmed and surrendered. He was sentenced to five years in prison
in Thailand for the hijacking, but was pardoned after three years.
Fact Pattern 3
The applicant is a 40-year-old married, male native and citizen of Afghanistan. The
applicant and his father began helping the mujahidin in 1981. The applicant and
father donated food and medicine while he helped the mujahidin by posting up
mujahidin fliers two to five times a month. His older brother had been an actual
member of the mujahidin since 1981 and was serving as a driver, transporting
weapons and the wounded. His brother lived with the mujahidin on the outskirts of
Kandahar but would come home for a visit after dark once a month.
After his brother came home for one of his brief visits, someone reported his
brother's presence to the authorities. The following morning agents from KHAD,
the Afghan secret police, came to his house looking for his brother after he had
already departed. The agents immediately handcuffed the applicant and his father
and then searched the house. The agents then beat him and his father with the butts
of their guns and asked where the applicant's brother was. He and his father were
blindfolded and taken to a KHAD building.
The applicant was held without a trial and was not informed of any charges against
him. Applicant was then subjected to interrogation sessions. He indicated that the
first session began with nonviolent questioning about who gave him the mujahidin
fliers, where his brother was, and where the mujahidin who supplied the fliers
were. He stated that the KHAD agents thereafter subjected him to sleep
deprivation, beatings, and electric shocks applied to his fingers. He said that he was
often rendered unconscious by the abuse and would wake up back in his cell.
According to the applicant, the interrogations occurred once or twice a week.
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the army. He stated that he deserted after 4 months in the army because he did not
want to fight against other Moslems. The applicant left the army he and went to
Pakistan with the help of the mujahidin. One of his father's friends who was in
Pakistan provided the money which he used to travel to the United States.
Fact Pattern 4
The applicant is the son a Christian minister in China. In the fall of 1966, when the
Cultural Revolution began, the applicant's father became a target of the Red
Guards. He was forbidden from continuing his ministry and his income was
terminated. Near the end of the year, the Red Guards ransacked the respondent's
home, destroying walls and furniture and confiscating papers and personal effects.
The applicant's father became a prisoner in the building of the Young Men's
Christian Association.
The applicant was 8 years old when the Cultural Revolution began. When his home
was ransacked in late 1966, he was locked in a room with his grandmother and kept
there for over 6 months. He was not allowed to attend school and was interrogated
on a continuing basis. When he cried, the Red Guards kicked and bit him and
deprived him of food. In mid-1967, he was released from the house arrest and
returned to school. Because of his family background, he was abused and
humiliated. On one occasion, he fell asleep during a speech regarding the need to
criticize one's parents. Rocks were thrown at him. They struck his head and he
suffered a serious loss of blood. His injuries required a month of intensive
treatment.
In 1970, and again in 1972, the applicant was sent to rural villages for reeducation.
He was harshly treated and denied medical care for a bad cut to his leg in 1970, and
for a month-long high fever he suffered in 1972, which was caused by abusive
treatment. From 1973 to 1975, the respondent endured a number of exiles designed
to "reeducate" him. During this time, he was forced to do labor in the fields.
Fact Pattern 5
The applicant is a 27-year-old native of Punjab, India and a devout Sikh. Since the
early 1980s, a part of the Sikh community in Punjab has been fighting to establish a
Sikh state independent of India. Beginning in February 1988, Sikh separatists
repeatedly demanded assistance in their campaign from the unwilling family of the
applicant. They forced themselves into the home of the applicant's family, ate their
food, and slept under their roof. The Indian police learned of the apparent support
of the family for the separatists and arrested the applicant in June 1989. Despite the
applicant's assurances that he did not support the separatists, the police interrogated
and beat him for two-and-a-half hours, until he lost consciousness. The police then
revived him with water and resumed the beatings. They kept him detained for two
days.
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The Sikh separatists continued to visit the applicant's home at least once every six
weeks. In January 1990, the police arrested him again and imprisoned him for six
days. On each of the six days, the Indian police tightened a wide leather belt around
his torso until he lost consciousness. The police finally released applicant when the
leaders of his village intervened on his behalf. After the applicant’s release, the
separatists continued to visit his house. Fearing that the police would arrest and
torture him again, applicant fled from his home to stay with relatives in another part
of India. While staying with his relatives, he received letters from his family that
stated that the police had returned to his house.
Applicant decided to flee India for the United States when he learned that the police
had interrogated and beaten his brothers.
Fact Pattern 6
Because of this refusal the Yugoslavian secret police contacted his employers and
caused him to lose several jobs as a chef, and to be turned away when seeking
employment while others less qualified were hired. It became impossible for him to
obtain employment in the occupation for which he was trained. Eventually, he
secured a job as a cook on a merchant vessel because the growing Yugoslavian
merchant marine was unable to secure qualified personnel. He sought asylum when
he reached the United States.
Fact Pattern 7
Applicant is a citizen of China. Applicant and his wife were forced to flee from
their commune because they had two children and did not agree to stop having
more children. He stated that he disagreed with China's family planning policies
because "in the countryside, especially in the farming areas, we need more
children." He indicated that the Government wanted him to go to a clinic to be
sterilized, that he thought the operation would harm his body, that he did not want
to he sterilized, and that if he returned to China he would be forced to submit to the
operation. His wife was ordered to submit to a sterilization operation after the birth
of their second child but was able to postpone the operation due to illness.
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Other Materials International Human Rights Law
OTHER MATERIALS
There are no Other Materials for this module.
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Supplement A
International and Refugee Adjudications International Human Rights Law
REQUIRED READING
1.
2. •
ADDITIONAL RESOURCES
1.
2. •
SUPPLEMENTS
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Supplement B
Asylum Adjudications International Human Rights Law
REQUIRED READING
1.
2.
ADDITIONAL RESOURCES
1.
2. •
SUPPLEMENTS
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