From Nation State to Failed State: International Protection from Human Rights Abuses by Non-State Agents
Columbia Human Rights Law Review, Vol. 1, No. 31, pp. 82-121, Fall 1999
Posted: 8 Nov 2000
Both international human rights norms and international refugee law protect individuals whether they are victimized by the state or by entities other that the state, including death squads, insurgent armies, family-based political cliques and individuals. To begin with, eight major international human rights treaties, including the 1951 Convention relating to the Status of Refugees, obligate signatory states to protect individuals from abuses by non-state actors within their jurisdiction. Nevertheless, restrictive trends have surfaced in both European and U.S. asylum jurisprudence. In Europe, a minority of states deny asylum to refugees fleeing persecution by certain non-state actors, particularly those operating in so-called "failed state" situations, such as sub-clans in Somalia, or civil war factions in Afghanistan. Although in the United States victims of non-state persecution are not disqualified from persecution, highly technical judicial standards of causation tend to disfavor individuals fearing non-state abusers, whether insurgent groups or domestic batterers.
In contrast to limited notions of state accountability in the refugee case law of a minority of countries, countervailing progressive trends in regional human rights law fully recognize victims of "unofficial abuses" as worthy of international protection. Notably, in 1989, the Inter-American Court of Human Rights found Honduras liable for its failure to prevent a young man?s disappearance and presumed murder by a death squad. And in 1996, the European Court barred Austria from deporting a Somali asylum seeker who feared torture by a sub-clan leader in his native land.
The worrisome gap in effective refugee protection for victims of non-state agents calls for the fuller realization of an international human rights regime capable of protecting individuals from stable, repressive, conflicted and failed states alike.
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