BROOKINGS Commentary What does the 2024 election mean for human rights? Kelebogile Zvobgo September 18, 2024

 BROOKINGS

Commentary

What does the 2024 election mean for human rights?

Kamala Harris and Donald Trump offer different visions for the country and the world, including about people’s fundamental freedoms and human rights.

Kelebogile Zvobgo

September 18, 2024

The issue of “freedom”—an American promise that has not been realized for all people—is evidently on the ballot in the 2024 U.S. presidential election. The Democratic and Republican parties’ candidates for president, Kamala Harris and Donald Trump, are advocating for very different policies regarding women’s reproductive rights, people of color’s voting rights, children’s right to be safe at school, and many other pressing issues that matter to Americans.

Who Americans elect in November will affect not only them and their rights but will also affect multitudes around the world. As with her domestic policy agenda, Vice President Harris’s vision for U.S. foreign policy presents a sharp contrast to the one former President Trump is offering the world, especially with respect to human rights. Three issue areas illustrate this difference: immigration, international law institutions, and Israel-Palestine.

The 2020 election and a change in U.S. foreign policy

When then-Senator Harris and former Vice President Joe Biden ran for office in 2020, they promised to restore U.S. leadership in the world. Many international affairs experts agreed that the United States was worse off than it had been four years earlier because of Trump’s foreign policy. Trump had withdrawn U.S. membership in multilateral agreements like the Paris climate accord and the Iran nuclear deal and snubbed international institutions such as NATO, the World Health Organization, and the World Trade Organization. These and other “America First” moves resulted in the United States being less respected around the world, less safe, and weaker economically.

Biden and Harris’s return to international cooperation—which included rejoining international agreements and reassuring allies of U.S. support—garnered high approvals from international affairs experts, the public, and world leaders in their first days in office and in the months and years following. Echoing leaders from around the globe, European Commission President Ursula von der Leyen declared, “The United States is back.”

In addition to strengthening international ties, Biden and Harris pledged to “revitalize our national commitment to advancing human rights and democracy around the world”—a commitment that Trump did not share. Indeed, Trump’s government violated the human rights of many people across the world, including through discriminatory, and sometimes violent, travel, immigration, and asylum policies.

Immigration

Immigration is often considered a domestic policy issue, but it is also part of foreign policy, especially when political leaders like Trump frame immigrants as threats to national security. Immigration policy also impacts people’s human rights, which are protected by international and domestic law.

The Trump administration discriminated against people from Muslim-majority countries and African countries, banning travel from several; separated undocumented migrant children from their parents at the U.S. southern border as part of a “zero tolerance” policy; and failed to intervene as migrant women were forcibly sterilized in Immigration and Customs Enforcement (ICE) detention centers.

These policies violated, among others, the right to non-discrimination and equal protection, which is codified in international human rights agreements that the United States has ratified, including the 1966 International Covenant on Civil and Political Rights. Article 26 of the treaty prohibits discrimination and requires countries to “guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The 1948 Universal Declaration of Human Rights also upholds the human right to freedom of movement (Article 13) and the human right to seek and find asylum from persecution in other countries (Article 14).

The Biden-Harris White House ended Trump’s travel bans; created an interagency task force to reunify migrant families; ended family separations; and agreed to a settlement allowing reunified families to stay and work in the United States and receive social services while their asylum claims were processed. The administration also closed some ICE facilities where detainees had been abused.

If Trump wins in November, he is likely to revisit the policies that Biden reversed. Already, Trump has committed to bringing back and expanding the travel ban. Though the public opposed the travel ban (and the family separation policy), the public sees Biden, and thus Harris, as weak on immigration and border security issues compared to Trump.

Trump’s and Harris’s stances on immigration have different foundations. Trump appears to be more interested in addressing symptoms, as seen with his “Remain in Mexico” policy. Meanwhile, Harris is interested in addressing root causes, such as political instability, drug trafficking, gang violence, and a lack of economic opportunity in different countries around the world, including in Mexico and Central America—problems that, if addressed, would likely decrease the number of people who feel they must leave their home countries. For undocumented immigrants already in the United States, Harris has promoted an “earned pathway to citizenship,” but she has not said precisely what this would look like or entail.

International law institutions

In 2020, the Trump administration levied sanctions—a combination of asset freezes and travel restrictions—to punish and obstruct the work of officials at the International Criminal Court (ICC). The ICC is the world’s only international court that can hold individuals criminally accountable for atrocity crimes, including war crimes and crimes against humanity. It is a defining feature of the international system that builds on the legacy of the Nuremberg and Tokyo trials after World War II and the tribunals for Rwanda and the former Yugoslavia after the Rwandan genocide and the Balkans conflict.

Trump’s sanctions came after the ICC’s chief prosecutor at the time, Fatou Bensouda, elevated probes in Afghanistan and Palestine from preliminary examinations to full investigations—investigations in which U.S. and Israeli personnel are respectively included, alongside the Taliban, Hamas, and other armed groups. The Afghanistan probe dates back to 2003, while the Palestine probe dates back to 2014. Because both Afghanistan and Palestine are court members, alleged atrocities committed on their territories are within ICC jurisdiction—regardless of the perpetrators’ nationalities. Nonetheless, Trump (and later Biden) rejected the court’s jurisdiction over U.S. and Israeli forces because the United States and Israel are not ICC members. Over the years, and especially in recent months, Israeli Prime Minister Benjamin Netanyahu has joined Trump’s and Biden’s condemnations of the court for what they perceive as a false moral equivalence between Israeli and Hamas actions.

While objecting to the court’s investigations in Afghanistan and Palestine, Biden rescinded Trump’s sanctions on ICC officials a few months into his term, in response to pressure from allies. Biden also decided to assist the court in its investigation into alleged Russian atrocities in Ukraine, though Russia, like the United States and Israel, is not an ICC member.

Similar to Trump, Biden has seemed to want it both ways—immunity for the United States and its friends and scrutiny for its foes. While broadly consistent with a decades-long practice of selective cooperation with and opposition to the ICC, this policy ran its course long ago. To lead the world, the United States must follow the rules it applies to others—and survey research suggests that the U.S. public recognizes this. Most Americans support the United States joining the ICC.

Harris has emphasized her commitment to the rule of law—the idea that laws should apply to everyone, equally. But it is not clear if she would apply rule of law principles on the world stage. It is very unlikely that as president she would accept ICC jurisdiction over Americans, discarding the playbook that Republican and Democratic presidents have used for more than 20 years. But Harris could accept ICC jurisdiction over Israel, partly depending on whether her party supports it. Congressional Democrats have been split on whether to support the ICC, whose current chief prosecutor, Karim Khan, has applied for arrest warrants for Hamas and Israeli leaders for war crimes and crimes against humanity. Congressional Republicans, by contrast, oppose the court’s probe into Israelis and they want to revisit sanctions.

In the spring, a bipartisan group of senators and House representatives passed an appropriations bill—which President Biden signed into law—that stipulated a hold on aid to Palestine if the Palestinian Authority cooperates with the ICC’s investigation as it relates to Israel. Attempting to impede an international court’s investigations in this way would seem contrary to the rule of law but it is not clear if Harris would veto a similar bill in the future. Especially when bundled with the broader U.S. federal budget, Harris might see vetoing congressional action against Palestine and the ICC as too costly.

A Harris presidency could, nonetheless, mean stronger action in the Israeli-Palestinian conflict—a human rights and foreign policy arena where Harris seems to differ from both Trump and Biden.

Israel-Palestine

The same year Biden rescinded the ICC sanctions, the administration ran for a seat on the United Nations Human Rights Council (UNHRC), a body the Trump administration had exited in 2018. The UNHRC is “an intergovernmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and making recommendations on them.” The United States won the bid and took up its seat on the council in 2022 for a three-year term that ends this year.

As a UNHRC member, the United States has supported important resolutions addressing human rights crises in Ukraine, Syria, Myanmar, South Sudan, Nicaragua, and many other countries. But the Biden-Harris administration’s record at the UNHRC is checkered. For instance, the administration has voted against resolutions that criticize and demand accountability for suspected illegal conduct by Israeli forces in Palestinian territory.

Similarly, at the U.N. Security Council, the United States has vetoed or abstained from resolutions calling for a cease-fire in the Israel-Hamas war. Moreover, at the International Court of Justice, the U.N.’s judicial body, the United States has denied allegations that Israel is committing genocide against Palestinians, even as the court itself said Israel has plausibly violated its obligations under the 1948 Genocide Convention.

Though broadly consistent with the decades-long U.S. policy to defend Israel (even when Washington and Jerusalem disagree with each other), these recent moves at the U.N. (and continued U.S. military aid to Israel) seem to ignore the U.S. public’s growing opposition to the war in Gaza. Since the October 7 terrorist attack, when Hamas fighters killed about 1,200 Israelis and took an estimated 250 hostages, Israeli forces have killed tens of thousands of Palestinians in Gaza, where famine is now spreading.

While maintaining Israel’s right to self-defense, Harris has drawn attention to the suffering of Palestinians and applied pressure on Israeli officials, notably Netanyahu, to “finalize the [cease-fire] deal as soon as possible.” Some Israeli leaders have criticized her for this and accused her of putting the cease-fire talks in jeopardy, but Harris empathizes with Palestinians and Israelis (compared to Biden who seems more empathetic to Israelis) and she insists on acknowledging both sides’ pain.

It is noteworthy that it is Harris who suggested that Biden denounce Islamophobia, in addition to antisemitism, shortly after October 7. And it is Harris who connected what happens abroad with what happens at home, bringing up the crisis in Gaza in a speech commemorating the 59th anniversary of Bloody Sunday, when U.S. Civil Rights Movement activists were attacked by law enforcement on the Edmund Pettus Bridge in Selma, Alabama. Senior administration officials have reportedly held Harris back, diluting if not muting her views. But she has continued to speak out.

For example, after Netanyahu’s visit to Washington in July, Harris said, “We cannot allow ourselves to become numb to the suffering, and I will not be silent.” Moreover, in her acceptance speech at the Democratic National Convention, Harris advocated both for Israel’s security and “dignity, security, freedom, and self-determination” for Palestinians—all fundamental principles of human rights enshrined in the Universal Declaration of Human Rights.

Trump has distorted Harris’s position, however, claiming the vice president hates Israel (and Arabs). An avowedly staunch supporter of Israel, he views criticism of the country as anti-Jewish. In addition, his policy proposals have historically favored Israel at Palestinians’ expense. What’s more, Trump has advocated for crackdowns on pro-Palestinian protests in the United States, including the deportations of demonstrators.

Looking forward

Harris hasn’t yet said how exactly she would resolve the many foreign policy problems the United States faces, including the Israeli-Palestinian conflict. Though she opposes an arms embargo on Israel, she has not indicated if as president she would maintain all of Biden’s policies. Neither has she suggested what concessions Israel should make if and after hostages are repatriated and a cease-fire agreement is reached. U.S. presidents have long advocated for a two-state solution but to no avail. It is hard to predict how transformative a Harris presidency would be, for this part of the world and elsewhere. But it could mark the beginning of a change in Washington and U.S. human rights and foreign policy. In using the language of human rights, Harris has signaled to a greater degree than Trump that she would uphold human rights principles and institutions, at home and abroad.

Author

Zvobgo

Kelebogile Zvobgo

Visiting Fellow - Foreign Policy, Strobe Talbott Center for Security, Strategy, and Technology

@kelly_zvobgo