The State Has a Duty to Protect: When It Fails, That's Persecution

Last updated: 5 October 2026

Photo: Marche contre les violences sexistes et sexuelles - Jeanne Menjoulet

Under international law, every state has a duty to protect the people on its territory. This is one of the oldest ideas in human rights. The right to life, the right to be free from torture, the right to bodily integrity — these rights only mean something if the state actually defends them. When a government fails to protect its citizens from serious harm, that failure is not just a policy problem. In refugee law, it can be persecution. The state duty to protect is therefore the legal bridge between "private" violence and asylum.

This article explains the international legal basis of the state's duty to protect, the "due diligence" standard, the leading UK Horvath test, the US framework, and the EU Qualification Directive. It then shows how these rules apply in real countries — domestic violence in Albania, Georgia, India, and Pakistan; LGBTQ+ persecution in Russia and Uganda; persecution of minorities in many other places. For asylum decision-makers and expert witnesses, this is the heart of most non-state actor claims.

Why State Duty to Protect Matters

The state is the most important guardian of human rights. International law gives the state a monopoly on the use of force, but in return demands that the state use this power to keep people safe. If a private person beats, kidnaps, or kills another, the state must investigate and punish. If the state instead looks the other way — or worse, helps the attackers — the victim is left with no protection. In refugee law, this kind of state failure makes private violence into persecution.[1]

This is why almost every modern asylum claim involves a careful study of state protection. It is not enough for the applicant to say "this person threatened me". The decision-maker also asks: "What did the state do? What could the state do? Is the protection real, or only on paper?" The answers turn legal theory into the lived reality of asylum claims.

The International Legal Basis

Several treaties and instruments form the basis of the state's duty to protect. They share a common core: the state must take reasonable steps to keep people safe from serious harm, no matter where the harm comes from.

UDHR and ICCPR: The Universal Foundation

Article 3 of the Universal Declaration of Human Rights (UDHR) 1948 says simply: "Everyone has the right to life, liberty and security of person." Article 5 adds the prohibition of torture and cruel, inhuman or degrading treatment. The UDHR is not a treaty itself, but its provisions are reflected in the International Covenant on Civil and Political Rights (ICCPR) 1966.[2]

The ICCPR places legally binding duties on states. Article 6 protects the right to life. Article 7 prohibits torture and cruel treatment. Article 2(1) requires states to "respect and ensure" the rights in the Covenant. The UN Human Rights Committee, in General Comment No 31 (2004), explained that this means states must protect people from harm caused by private actors. A state that allows private violence to flourish breaches the Covenant.[3]

ECHR: Article 2 and Article 3 Positive Duties

The European Convention on Human Rights (ECHR) 1950 is the most developed regional instrument. The European Court of Human Rights has built an extensive case law on what Articles 2 (right to life) and 3 (prohibition of torture and inhuman treatment) require of states. The leading cases include Osman v United Kingdom (2000) 29 EHRR 245, Opuz v Turkey (2010) 50 EHRR 28, and Z v United Kingdom (2002) 34 EHRR 3.[4]

In Osman, the Court created the famous test: a state breaches Article 2 if it knew or should have known of a real and immediate risk to a person's life from a third party, and failed to take reasonable steps to prevent it. In Opuz, the Court found Turkey had failed to protect a woman and her mother from her violent husband, despite multiple complaints and clear warnings. The husband killed the mother. Turkey breached Articles 2, 3, and 14 (discrimination on grounds of sex).[5]

Inter-American System: Velásquez Rodríguez and Beyond

The Inter-American Court of Human Rights set the global standard for due diligence in Velásquez Rodríguez v Honduras (1988). The Court held that a state is responsible not only for what its agents do directly, but also for what private actors do if the state fails to prevent, investigate, prosecute, and punish. This four-part duty became the benchmark for the world.[6]

The Court has applied the same framework in cases of femicide (Cotton Field v Mexico, 2009), forced disappearance, and indigenous land rights. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ("Convention of Belém do Pará") 1994 codifies these duties for gender-based violence.[7]

The Due Diligence Standard

Across all these systems, the same standard appears: due diligence. A state must take reasonable measures to (1) prevent serious harm, (2) investigate when harm happens, (3) prosecute those responsible, and (4) punish them with adequate penalties. A state that does only one or two of these — for example, that has laws on paper but never enforces them — is not doing enough.[8]

The standard is "reasonable", not "perfect". A state is not the insurer of every citizen's safety. But the standard is real. If domestic violence is widespread and the police routinely tell women to "go home and reconcile", the state fails its duty. If LGBTQ+ people are murdered and police refuse to record the attacks as hate crimes, the state fails its duty. If religious minorities are mob-attacked and prosecutors decline to file charges, the state fails its duty.[9]

The UK Horvath Test: Sufficiency of Protection

In refugee law, the leading UK case is Horvath v Secretary of State for the Home Department [2001] UKHL 39. The House of Lords held that, for an asylum claim based on non-state actors, the question is whether the home state provides "a sufficiency of protection". Lord Hope and Lord Clyde set out the test: protection must be a real and effective protection, not perfect protection, but capable of keeping the claimant reasonably safe.[10]

The test has three parts. First, are the acts feared made criminal by domestic law? Second, are the police and courts willing and able to enforce that law? Third, can the claimant access this system in practice (is it geographically and financially accessible, and are they not excluded by discrimination)? If protection fails any of these tests, it is not "sufficient" — and the asylum claim can succeed.[11]

UK case law has developed Horvath in many directions. Bagdanavicius v SSHD [2005] UKHL 38 confirmed that the Horvath test applies under both the Refugee Convention and Article 3 ECHR. AH (Algeria) [2015] EWCA Civ 1003 stressed that police willingness, not just police presence, matters. The principle is settled: the test is real protection, not formal protection.[12]

The US Framework: Acosta and Successor Cases

The United States approaches the same problem through a slightly different doctrine but reaches a similar result. In Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), the Board of Immigration Appeals held that persecution can come from non-state actors when the government is unable or unwilling to control them. This formulation — "unable or unwilling" — has become the core US standard.[13]

The standard has been applied to gang violence (Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)), domestic violence (Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), later vacated in Matter of A-B- 27 I&N Dec. 316 (AG 2018) and partially restored under later policy), and persecution of LGBTQ+ people. US courts use the same "due diligence" idea, even if they don't always use the term.[14]

EU Qualification Directive: Articles 6 and 7

EU law has codified the state duty to protect more clearly than any other system. Directive 2011/95/EU (the "Qualification Directive") states in Article 6 that actors of persecution include "non-State actors, if it can be demonstrated that the [state]... [is] unable or unwilling to provide protection". Article 7 then defines what "protection" must look like:[15]

• The state must be able to provide protection.
• Protection must be effective and of a non-temporary nature.
• Protection is generally provided when the state takes reasonable steps to prevent persecution, including operating an effective legal system.
• The applicant must have access to this protection.

The CJEU has interpreted Article 7 strictly. In Salahadin Abdulla and Others (Case C-175/08), the Court said that protection means more than the absence of formal threats; it requires real measures and a functioning system. National courts across the EU have followed this guidance.[16]

State Duty to Protect: By Region and Instrument

When State Protection Is Insufficient

State protection commonly fails in three ways. First, the police refuse to investigate, often because of corruption, prejudice, or political interference. Second, there is no functioning shelter or witness protection system, so even people who report attacks have nowhere safe to go. Third, the courts are paralysed by impunity: prosecutors decline to charge, judges acquit, or sentences are token.[17]

State Protection Failure: Country Examples

The chart below shows the share of women victims of intimate partner violence who said the police did not help them in selected countries, drawn from OSCE-led surveys, FRA data, and World Bank Women, Business and the Law reports. These figures are widely used in expert reports for asylum cases.

Specific Examples: Where the State Fails

Domestic Violence: Albania, Georgia, India, Pakistan

In Albania, despite 2006 and 2020 amendments to the Family Violence Law, women who report violence to the police are often returned home with the words "settle this in the family". GREVIO's 2023 baseline report on Albania documents systemic failures in police response and shelter capacity. In Georgia, a 2014 case in which a woman was murdered by her ex-husband while under "police monitoring" exposed the gap between laws and practice; reforms since then remain partial.[18]

India's 2005 Protection of Women from Domestic Violence Act is comprehensive on paper. In practice, less than 1% of cases reach conviction, and police regularly refuse to file First Information Reports. Pakistan has provincial DV laws (Sindh 2013, Punjab 2016, KPK 2021), but rural women have almost no access to them, and customary "jirga" systems often override formal law.[19]

LGBTQ+ Persecution: Russia and Uganda

Russia's 2023 Supreme Court ruling designating the "international LGBT movement" as extremist effectively means the state itself is the persecutor; private mob attacks happen with police encouragement. Uganda's 2023 Anti-Homosexuality Act criminalises same-sex relations with the death penalty for "aggravated homosexuality" and creates a climate where mob violence flourishes.[20]

Minorities: Multiple Countries

Pakistan's blasphemy laws are weaponised against Christians and Ahmadis through mob violence; the state often fails to prevent attacks. Iran fails to protect Bahá'ís. Iraq has not held those responsible for the 2014 Yazidi genocide accountable. Myanmar continues to fail Rohingya. In each case, a working state apparatus exists — but it does not function for these communities.[21]

What CEDAW Says About State Failure

Discrimination under the Convention is not restricted to action by or on behalf of Governments. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.
CEDAW Committee, General Recommendation No 19 (1992), para 9

The Inter-American Court has put it even more starkly: "An illegal act which violates human rights and which is initially not directly imputable to a State... can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention" (Velásquez Rodríguez, para 172).[22]

Why This Matters for Asylum

The state duty to protect is the bridge between human rights law and refugee law. When a state fails its duty, the resulting harm — by gangs, families, mobs, or armed groups — counts as persecution under the Refugee Convention. This is the door through which the vast majority of modern asylum claims pass.[23]

Decision-makers must remember that the test is not absence of laws, but absence of protection in practice. A country with progressive legislation and signed treaties may still fail its citizens. Conversely, a country with weak laws but strong, accessible institutions may provide adequate protection. The analysis is functional, not formal.[24]

Conclusion: Protection Means Real Protection

The state duty to protect is not a slogan. It is a binding rule of international law backed by 75 years of treaties, court decisions, and expert commentary. UDHR, ICCPR, ECHR, the Inter-American Convention, EU Directives, and UK and US case law all converge on the same point: states must take reasonable, real, effective steps to prevent serious harm to people on their territory.

When the state fails, the failure has consequences. People die who should have lived. Women are tortured by partners the police would not arrest. LGBTQ+ people are murdered by mobs the state encourages. And those who survive, who flee, and who reach safer countries — they bring their stories, their evidence, and their claim to refugee protection. For expert witnesses and asylum decision-makers, holding the line on state duty is the difference between protecting refugees and returning them to harm.