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It’s rare for politicians to keep their election promises. It’s even rarer for them to do so within the first fortnight of their administration. And yet, here we are. Turns out that when the former presenter of The Apprentice declared that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on,” it wasn’t just hot air.
The Donald signed an executive order on January 27th which forbids travellers, migrants and refugees from Iraq, Iran, Libya, Somalia, Yemen, Sudan and Syria from entering the United States, enhancing what was already one of the most vigorous vetting systems in the world.
The order also permits the administration to prioritise refugee claims on the basis of religious persecution so long as the applicant belongs to a religious minority in their country of origin. This effectively would permit the US to put prioritise Christians from the Middle East over Muslims.
Personal stories poured in of people affected by the travel ban. A 5-year-old US citizen handcuffed and separated from his mother for hours. Translators for the US military during the Iraq War refused entry to the country they served. A four-month-old Iranian baby in need of heart surgery in the US temporarily barred from American soil.
One cannot help but feel a sense of irony. The United States directly or indirectly bears responsibility for thousands of refugees fleeing these seven nations, six of which are in the midst of internal conflict. American military intervention in Iraq, its role in the short-sighted NATO invasion of Libya ten years later, its befuddled dithering in Syria and its contribution, both material and physical, to conflicts in the Middle East and North Africa have destabilised the region and helped create and maintain conditions that cause refugees to flee violence and persecution. I digress.
The practical inconsistencies have been pointed out countless times since the order was signed. Not one immigrant or refugee from the seven banned nations has conducted an act of terror on American soil since 9/11, yet the September 11th attackers’ countries of origin can still travel freely to the United States. Rather predictably, the venn diagram of Trump’s business interests in the region and the countries not included in the ban overlap to a one. In any event, the ban is here, and regardless of the nationalities included, it should be opposed on universal grounds.
International human rights law forbids discrimination based on ethnicity, religion or nationality. This is enshrined in almost every human rights treaty. It is one of the founding principles of the human rights corpus, formed largely in reaction to the discriminatory resettlement programmes and violence of the Second World War. What is therefore so troubling is that Trump’s executive order was signed on Holocaust Memorial Day. One hopes that he is not placing himself on the wrong side of history.
States also have an obligation under international refugee law not to return refugees to countries where they might be placed in harm’s way. The principle of non-refoulement, according to the United Nations High Commissioner for Refugees, “prohibits States from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.” Given that violence with a sectarian element has engulfed over half of the seven nations on which the travel ban is imposed, this is a no-brainer.
Trump’s travel ban exposes the impotence of international human rights without robust enforcement mechanisms. The United States has signed but not ratified the American Convention on Human Rights, meaning that it is not under the jurisdiction of the Inter-American Court of Human Rights which rules on violations of the Convention in the Americas. And while the US is a ratified State Party to the International Convention on Civil and Political Rights, the decisions of its overseeing committee are not legally binding. Rather depressingly, there is no international legal mechanism to metaphorically slap America on the wrist for betraying its human rights obligations.
And so it falls to the traditional institutions to hold power to account: the courts and the media. This, I believe, is where the Trump administration’s actions have been most shocking.
Trump’s hostility towards the media is well-documented. In his first press conference as President, he condemned Buzzfeed and CNN as ‘fake news’, consequently refusing to answer their questions. He performed a similar routine in the joint press conference with Theresa May, refusing to answer a tough question from the political editor of BBC News, Laura Keunssberg, seemingly for no reason at all. For a supposed strong-man, he has incredibly thin skin.
For me, however, the most distressing aspect of Trump’s travel ban has been his clashes with the judiciary. When a federal judge in New York temporarily blocked parts of the executive order, the President steamrolled the decision and continued to suspend travel from the seven countries in question.
When the US Attorney General Sally Yates refused to defend the executive order and claimed it was unconstitutional, she was fired from her position. In an extraordinary statement from the administration, Yates was accused of ‘betraying the Department of Justice.’ The gravity of this comment needs time to sink in. The White House essentially decried the highest legal office in the country as treasonous for not complying with the President’s orders. This is an incredibly disturbing precedent to set.
It seems as though the US is headed for a full-blown constitutional crisis. A federal judge in Seattle recently put a nationwide halt to the travel ban, with the President consequently accusing him of being a ‘so-called judge.’ In an even more astonishing comment, Trump laid the blame for a hypothetical terror attack at the feet of the judiciary: “Just cannot believe a judge would put our country in such peril. If something happens blame him and the court system.” The administration has since stated that it intends to fight the judge’s decision in the highest courts.
The independence of the judiciary is one of the founding principles of the United States. Its constitution allows for the separation of powers for precisely this purpose: to restrain the power of the executive if he or she acts unlawfully. Trump is willingly eroding this separation. He has indicated that he will gladly bypass Congress by governing through a combination of executive orders and 140 characters.
The travel ban has demonstrated his hostility towards the courts if they act as nothing other than a rubber-stamping office. With no international legal recourse, the fragility of the separation of powers under a belligerent executive branch and frequent attacks on the media, I cannot help but feel as though our defences against Trump’s human rights and constitutional violations have been shown to be rather toothless. Our faith must be placed in the resilience of the rule of law and the weight of public opinion around the world.
