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US Foreign Policy

Human Rights in US Foreign Policy

Michael E. Flynn

Kansas State University

Updated: 2021-12-01

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Lecture Overview

  1. Historical Background

  2. What are human rights?

  3. Institutionalizing human rights

  4. Trends in human rights performance

  5. Current and historical human rights issues in US foreign policy

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Key Questions

  1. How have theory and history shaped the place of human rights in US foreign policy?

  2. How do human rights issues intersect with other policy areas?

  3. What are the difficulties associated with humanitarian intervention?

  4. What are some of the pressing human rights issue in the world today?

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Historical Overview

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Historical Overview

Origins of US human rights policy

  • Classical liberalism

  • Abolitionist movement

  • Women's rights movement

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Historical Overview

United Nations Universal Declaration of Human Rights

  • Provides an explicit listing of human rights to which all human beings are entitled

  • Also reflects ideas and rights with origins in a wide range of cultural and religious traditions

  • To right: Eleanor Roosevelt, Chair of the UN Human Rights Commission

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Historical Overview

  1. Life, liberty, and security of person
  2. No slavery or forced servitude
  3. No torture, cruel and unusual punishment, unhuman or degrading treatment
  4. Recognition as a person before the law
  5. Equal protection before the law
  6. Right to effective remedy by national tribunals
  7. No arbitrary arrest or punishment
  8. Fair and public hearings by an independent and impartial tribunal
  9. Presumed innocence until guilt is proven
  10. Protection from arbitrary interference in an individual's private, family, or home life, and in personal correspondence
  11. Freedom of movement, both within and between countries
  12. Freedom from persecution and access to asylum
  13. Right to a nationality and to chanve nationality
  14. Freedom of consensual marriage and to raise a family
  15. Right to own property
  1. Freedom of thought, conscience, and religion
  2. Freedom of opinion and expression
  3. Freedom of peaceful assembly and association
  4. Freedom of political participation and assembly
  5. Access to essential economic, social, and cultural rights necessary for individual development and dignity
  6. Right to work, without discrimination, for fair pay, and in favorable conditions
  7. Right to join trade unions
  8. Right to rest, leisure, and limited working hours
  9. Access to basic standards of living, including healthcare, food, clothing, and housing
  10. Right to equally partake in the cultural and scientific life of the community
  11. Right to enjoy a social and international order that facilitates the realization of these rights
  12. Limitations on these rights only to the extent that they are necessary to secure the ability of others to enjoy their rights
  13. Nothing in the UNDHR will be interpreted as a license to destroy or harm the freedoms outlined herein
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Historical Overview

Human Rights Treaties and Covenants

  • The Universal Declaration is a general list with broad recognition, but it's not binding in any way

  • Actual implementation and practice is a different story

  • There are several treaties that actually involve countries committing to protect various rights in a substantive way

  • This means ensuring that domestic political institutions and laws align with international human rights law

  • This is where the rubber meets the road

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Historical Overview

  • United States has a poor track record when it comes to ratifying human rights treaties

  • US has signed 23 of 49 total agreements

  • It's only ratified 17 of 49 agreements

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US Human Rights Treaty Commitments by Topic Area
Category Total Agreements Total Ratified
International Bill of Human Rights 4 1
Prevention of discrimination on the basis of race, religion, or belief; and protection of minorities 1 1
Women's Rights 5 0
Slavery 4 1
Torture and Ill-treatment 4 1
Children's rights 3 2
Freedom of association 2 0
Employment and forced labor 7 1
Education 1 0
Refugees and asylum 2 0
Nationality and statelessness 2 0
War crimes and genocide 3 1
Law of armed conflict 6 4
Terrorism and human rights 5 5
Total 49 17
Note: Data obtained from University of Minnesota Human Rights Library http://hrlibrary.umn.edu/research/ratification-USA.html
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Institutionalizing Human Rights

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Institutionalizing Human Rights

Domestic roadblocks to human rights

  • US is championing international human rights, but there are domestic roadblocks

  • Much of this effort conflicts with treatment of minority Americans at home

  • Segregation at home is threatened by international institutions that can enforce human rights agreements

  • To right: James Byrnes, Secretary of State 1945-1947

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Notes on Byrnes, Multilateralism, and Human Rights:

  • Secretary of State. Also a staunch segregationist.

  • Brynes served in the House, Senate, and briefly as an associate justice on the US supreme court (though his tenure is the shortest on record). He played an important role in blocking anti-lynching legislation, blocking support for black colleges and universities, and also in maintaining white control over Democratic Party politics in South Carolina.

  • The State Department and various US officials worried that the Untied Nations Commission on Human Rights might have the power to investigate human rights abuses within the US. Also worried that it might be able to compel the US to impose equal protections for blacks and other minority groups. Also sought to prevent the commission from having the power to investigate petitions brought by various minority groups.

  • US immediately sought to weaken these institutions for fear that they would be used against the US. They also sought to limit petitions to come only from member states (i.e. not from individuals or non-governmental organizations).

  • This is exactly what happened---the National Negro Congress brought a petition to the UN on June 6, 1946 that outlined the oppression of black Americans (See Anderson 2003, 80-81).

Institutionalizing Human Rights

Bricker Amendment

  • Really a series of amendments

  • First, introduced by Senator John Bricker (R-OH)

  • Two key parts

    • No treaties can conflict with the Constitution (Duh)
    • Strips the president of the power to negotiate executive agreements (Oh...)

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Institutionalizing Human Rights

Humphrey-Cranston Amendment (Section 502B of the 1974 Foreign Assistance Act):

Except under extraordinary circumstances no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons or other flagrant denials of the right to life, liberty, and the security of the person.

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Institutionalizing Human Rights

Harkin Amendment (Section 116 of the Foreign Assistance Act of 1974):

No assistance may be provided under this part to the government of any country which engages in consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.”

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Institutionalizing Human Rights

Assistant Secretary of State for Human Rights and Humanitarian Affairs

  • Position created in 1976

  • Raised profile of human rights issues in State Department

  • Began practice of drafting annual country reports on human rights performance

To right: James M. Wilson, first Assistant Secretary of State for Human Rights and Humanitarian Affairs

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Institutionalizing Human Rights

Undersecretary of State for Civilian Security, Democracy, and Human Rights

  • Position created in 2012

  • Replaced Undersecretary for Global Affairs and Democracy

  • First elevation of human rights in State Department since 1976

To right: Maria Otero, first Undersecretary of State for Civilian Security, Democracy, and Human Rights

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Trends in Human Rights

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Trends in Human Rights

Torture: Purposeful inflicting of extreme pain, whether mental or physical, by government officials or by private individuals at the instigation of government officials

Political Imprisonment: The incarceration of people by government officials because of: their speech; non-violent opposition to government policies or leaders; religious beliefs; non-violent religious practices including proselytizing; or their membership in a group, including an ethnic or racial group

Extrajudicial Killings: Killings by government officials without due process of law. They include murders by private groups if instigated by the government. These killings may result from the deliberate, illegal, and excessive use of lethal force by the police, security forces, or other agents of the state whether against criminal suspects, detainees, prisoners, or others.

Disappearance: Cases in which people have disappeared, political motivation appears likely, and the victims have not been found. Knowledge of the whereabouts of the disappeared is, by definition, not public knowledge. However, while there is typically no way of knowing where victims are, it is typically known by whom they were taken and under what circumstances.

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Current Issues

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Current Issues

The US is routinely cited for lots of different issues, but some of the most common and/or big ones are

  • The War on Terror (Torture, Extrajudicial Killings, etc.)
  • Military interventions and Responsibility to Protect
  • Police brutality/excessive use of force
  • Death penalty
  • Migrant communities
    • Refugees and asylum seekers
    • Family separations
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Rights Abuses and the War on Terror

Major issues:

  • Torture of individuals suspected of, or linked to, terrorist activity

  • Indefinite imprisonment of suspects in Guantanamo Bay, Cuba

  • CIA black sites and rendition program

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Notes

  • During the 1990s the Clinton Administration coordinated with other countries' militaries and intelligence services to construct a network of secret prisons to be used for torture and interrogation of suspected terrorists.
  • After September 11 attacks the Bush Administration dramatically expanded this program

  • Ran from 2001-2005 with the involvement of about 54 countries, including many democracies.

  • Roughly 780 people imprisoned at Guantanamo Bay since 2001

  • 40 Still remain in custody
  • Overwhelmingly citizens of Afghanistan, Saudi Arabia, Yemen, and Pakistan
  • Ages ranged from 13 - 89, with 21 children
  • According to the ACLU over 200 FBI agents reported abusive treatment of detainees
  • Of the 780 individuals who were detained, Human Rights Watch reports 731 have been released without changes, many after having been imprisoned for years.

Sources:

Rights Abuses and the War on Terror

Anwar al-Awlaki

  • A prominent leader of al-Qaeda forces in Yemen

  • Assassinated by a US drone strike in Yemen on September 30, 2011

  • He was an American-born US citizen

  • So was his 16 year old son, who was killed by a drone strike two weeks later

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Military Intervention and R2P

Responsibility to Protect (R2P):

  • Calls for other nation states to ensure fundamental human rights are respected around the world

  • Fundamental question: Can military intervention stop human rights abuses and/or improve conditions on the ground?

  • The results aren't great

  • Military intervention can worsen human rights abuses

  • Post-conflict reconstruction is really, really complicated

To right: August 2014 protests in Libya after Libyan Parliament voted to request UN intervention, three years after the NATO invervention that toppled the Gaddafi regime.

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Immigration, Asylum, and Refugees

  • US offers to let in people who may be persecuted in their home countries.

  • Groups are classified as one of two types.

    • Asylum Seekers
    • Refugees

  • Trump Administration has sought to reduce access across the board, including general immigration, asylum seekers, and refugees

  • Refugees and Asylum seekers are been particular targets

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Immigration, Asylum, and Refugees

So what do these terms mean?

Refugee According to 8 U.S. Code § 1101(a)(42)(A)

Any person who is outside their home country and who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Asylum

Meet criteria for refugee status, but apply after they are in the United States, or at a port of entry.

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Notes

Must apply for asylum within one year of arriving in US. Refugee definition: Under Section 101(a)(42) of the INA, a refugee is an alien who, generally, has experienced past persecution or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Note five protected groups: Race, religion, nationality, social group, or political opinion. Individuals who meet the statutory definition may be considered for either refugee status under Section 207 of the INA if they are outside the United States, or asylum status under Section 208 of the INA, if they are already in the United States or present themselves at a U.S. port of entry. Criteria for asylum and refugee admissions is the same, but there is no cap on asylum seekers like there is on refugee status. Cap is set on refugees each year, but there is no limit on asylum seekers.

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Immigration, Asylum, and Refugees

Southwest border

  • This is the border between the US and Mexico

  • Trump campaigned in 2015-2016 on cutting down on migration from Mexico and central America, claiming broad patterns of violence and crime for which there's little evidence

  • Escalated existing deterrence strategies employed by previous administrations to reduce migration

  • But what does it take for deterrence to work?

    • Is the threat credible?
    • What is the cost-benefit calculus of immigrants?
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Family Separations

  • Trump Administration institutes policy to separate children from their parents when they're apprehended
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Family Separations

  • Trump Administration institutes policy to separate children from their parents when they're apprehended

  • "But Obama did this!"

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Family Separations

  • Trump Administration institutes policy to separate children from their parents when they're apprehended

  • "But Obama did this!"

  • No, not really—Not as a systematic policy tool:

    • Children could be separated from parents when parents were criminally charged after apprehension or where officers suspected human trafficking
    • Trump administration institutes a "zero-tolerance" policy, meaning all unlawful entrants will be systematically subject to criminal prosecution.
    • Systematically charging unlawful entrants with a crime means children are then treated as unaccompanied minors
    • This meant that individuals would be detained, and if they were accompanied by children, those children would be detained separately from parents.
    • Obama Administration housed women and children together while cases were pending. Families could be detained indefinitely (Please note that this is still a violation of human rights).
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Notes

Family separations:

  • Policy really spearheaded by then Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein (see https://www.vox.com/2020/10/7/21506059/trump-family-separations-sessions-rosenstein)
  • Explicitly directed US Attorneys to prosecute families with children as young as infants
  • Trump administration began to actively prosecute anyone who crossed the border illegally—even if they had children.
  • This meant that individuals would be detained, and if they were accompanied by children, those children would be detained separately.
  • Obama Administration has previously expanded detention facilities for families, housing women and children together while cases were pending. this was explicitly intended to deter other migrants from attempting to come up to the US. Families could be detained indefinitely.

  • So what’s different?

    • the 1997 Flores agreement, unaccompanied children could be held only for a specified period of time. A 2016 court ruling determined that this time limit applied to families, too.
    • Obama Administration detained families in ICE detention facilities, which were not technically prisons. This differed from the Trump Administration'ss approach which referred adults caught crossing the border for criminal prosecution.

    • Obama Administration also did not prosecute first-time offenders for crossing the border illegally.

    • From NYT: Technically, there is no Trump administration policy stating that illegal border crossers must be separated from their children. But the “zero tolerance policy” results in unlawful immigrants being taken into federal criminal custody, at which point their children are considered unaccompanied alien minors and taken away…Unlike Mr. Obama’s administration, Mr. Trump’s is treating all people who have crossed the border without authorization as subject to criminal prosecution, even if they tell the officer apprehending them that they are seeking asylum based on fear of returning to their home country, and whether or not they have their children in tow. See: (https://www.nytimes.com/2018/06/16/us/politics/family-separation-trump.html)

    • Attorney General Sessions framed the issue as smuggling: ““If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law,” Sessions said at a law enforcement event in Scottsdale, Ariz. “If you don’t like that, then don’t smuggle children over our border.” See: http://time.com/5314769/family-separation-policy-donald-trump/

    • From NYT: “The situation was even more complicated when children were involved. A 2008 law meant to combat the trafficking of minors places strict requirements on how unaccompanied migrant children from Central America are to be treated. Minors from Mexico or Canada — countries contiguous with the United States — can be quickly sent back to their home countries unless it is deemed dangerous to do so. But those from other nations cannot be quickly returned; they must be transferred within 72 hours to the Office of Refugee Resettlement at the Department of Health and Human Services, and placed in the least restrictive setting possible. And the Flores ruling meant that children and families could not be held for more than 20 days.” See: https://www.nytimes.com/2018/06/16/us/politics/family-separation-trump.html

    • In 2018 articles came out discussing how Homeland Security “lost” 1,500 children. Unclear how many were actually lost versus cases where status could not be verified due to someone not answering the phone.

    • Across all administrations, human rights groups and immigration activists have highlighted the poor conditions within detention facilities. The argument is that even though the government says they’re not prisons, they’re basically prisons. More recently, the family separation policy has

Family Separations

Fallout

  • Zero-tolerance officially in effect from April 2018-June 2018

  • Preceded by an undisclosed "pilot program" in El Paso, Texas in 2017

  • Policy affected more than 5,500 children

  • Many parents have been deported to home countries, and some have opted to leave children in the United States with friends or family members. In many cases US authorities did not keep records of who children's parents were, making reunification difficult or impossible.

  • More recently children have been released from US custody into Mexico without an accompanying adult and with no family members residing in Mexico. Most initially end up under the care of Mexican child welfare workers.

  • More than 550 children were expelled into Mexico in this way

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Notes

Lecture Overview

  1. Historical Background

  2. What are human rights?

  3. Institutionalizing human rights

  4. Trends in human rights performance

  5. Current and historical human rights issues in US foreign policy

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