Human
Rights
Brief
Volume 20 | Issue 1 | Fall 2012
hrbrief.org
Articles and Features
2
The Death Penalty and the Absolute Prohibition of Torture and Cruel, Inhuman, and Degrading Treatment or Punishment
Juan E. Méndez
7
Improving Human Rights in Mexico: Constitutional Reforms, International Standards, and New Requirements for Judges
Víctor Manuel Collí Ek
15
Human Rights in the United States: Legal Aid Alleges that Denying Access to Migrant Labor Camps is a Violation of
the Human Right to Access Justice
22
The Club-K Anti-Ship Missile System: A Case Study in Perfidy and its Repression
29
Panel on Kiobel v. Royal Dutch Petroleum
31
Coverage of the 146th Period of Sessions of the
Inter-American Commission on Human Rights
Reena K. Shah and Lauren E. Bartlett
Robert Clarke
Columns
36
Regions
48
Criminal Courts and Tribunals
55
Regional Human Rights Systems
60
Intergovernmental Organizations
Also in this Issue
62
Center News and Faculty Updates
67
Alumni Profile
A Legal Resource for the International Human Rights Community
American University Washington College of Law
Center for Human Rights and Humanitarian Law
Executive Director | Hadar Harris
Directors | Robert Goldman | Claudio Grossman | Diane Orentlicher | Herman Schwartz | Richard J. Wilson
T
Letter
Letter from
from the
the Editors
Editors
he human rights world is constantly evolving. New issues arise
daily. New norms arise after years of work by advocates. But
despite progress and despite this evolution of the field, much
remains the same. Persistent issues continue to affect the world’s most
vulnerable groups. Persistent work by advocates continues to challenge
governments and other entities to address the needs of victims and
future victims. And the Human Rights Brief continues to be a resource
of legal analysis for the international human rights community.
In looking back, we would also like to express our gratitude to
Lindsay Roberts and Christopher Tansey, Co-Editors-in-Chief for 20112012. We would also like to thank the entire 2012-2013 HRB staff for
transforming their passion for human rights into the excellent student
writing included here. Finally, without the support of the Co-Directors
The Human Rights Brief is a publication of the Center for Human
of theRights
Center
for Human Rights and Humanitarian Law, most especially
and Humanitarian Law at the American University Washington
Executive
Director
Harris,ofwhose
help and may
guidance
are invaluCollege of Law.Hadar
No portion
this publication
be reprinted
able, without
the Brief
notwritten
be possible.
thewould
express
permission of the Human Rights Brief.
As we have been preparing this first issue of the Human Rights
Brief’s twentieth volume, we find ourselves looking back at how much
has changed and evolved in human rights law since the Brief’s first
publication, how much work remains to be done, and how the Brief
can continue to be a part of moving the human rights field forward.
In preparing our first issue as co-editors, we looked back at Volume 1,
Issue 1, and the writing of the founding members of the Brief—whose
chief promoters, Claudia Martin and Diego Rodríguez, we are honored to have as faculty at American University Washington College of
Law—on disability rights, the crisis facing the Inter-American Human
Rights System (IAHRS), and war crimes tribunals. The resonance of
this inaugural issue was striking in the weeks we prepared for publication. During this time, the United States Senate lamentably voted
against ratification of the United Nations Convention on the Rights of
Persons with Disabilities; the Inter-American Human Rights System
held hearings and meetings around the hemisphere as part of a reform
process that may very well decide its future—a topic which will be
given in-depth coverage in Volume 20, Issue 2; and the International
Criminal Tribunal for the Former Yugoslavia sentenced Zdravko
Tolimir to life in prison for his role in the Srebrenica massacre.
Toas conclude
our letter for
for publication,
this twentieth
volume,
to honor
articles submitted
may
be sentweto:want
Human
and thank
those
Brief staffers
who
haveAmerican
precededUniversity,
us. Like the
rest of
Rightsall
Brief,
Washington
College
of Law,
4801
Massachusetts
Avenue, N.W.,
Telephone:
the human
rights community,
weWashington,
are who weD.C.
are 20016.
because
of the hard
However, hope is found in the astounding human rights work
described in this issue’s articles and the resiliency of the people affected.
Juan E. Méndez, UN Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, summarizes
his most recent report on whether the death penalty constitutes torture.
Professor Méndez is a tireless advocate for torture victims and his work
shines an international spotlight on an issue that remains a longstanding
human rights issue in many countries, including the United States.
In his article on Mexico’s landmark constitutional reforms, Víctor
Manuel Collí Ek explores the process undertaken by his home country
to conform to the recommendations of the Inter-American Court of
Human Rights to strengthen human rights guarantees for all Mexicans.
Perhaps the IAHRS is not as weak as some have argued.
Maryland Legal Aid attorney Reena Shah and Local Human
Rights Lawyering program director Lauren Bartlett write about access
to justice and other human rights issues faced by migrant farmworkers
in the United States and the efforts by advocates to explore international recourse for the deprivation of individuals’ rights. Through their
advocacy, the plight of U.S. migrant workers is being presented to the
world human rights community.
Finally, the Brief is honored to include a winning entry from the
2011 International Humanitarian Law Student Writing Competition,
authored by Robert Clarke from the University of Western Australia.
His article looks forward at the human rights implications of an
emerging missile system.
The Brief is continues to contribute to the global human rights
conversation reporting on developments in international human rights
and humanitarian law and provides concise legal analysis of cutting
edge human rights issues. Our dedicated staff is working hard to bring
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The Death Penalty and the Absolute Prohibition of
Torture and Cruel, Inhuman, and Degrading Treatment or
Punishment
by Juan E. Méndez*
A
Introduction
I therefore believe that further
investigation into this evolving
standard is needed in order to
reexamine the legality of the
death penalty under international law, and to determine its
implications for the global trend
towards abolition.
s the United Nations Special Rapporteur on Torture
and other Cruel, Inhuman, and Degrading Treatment
or Punishment, I have the responsibility every year to
select two emerging issues that contribute substantially to the
debate on the prohibition of torture. The conclusions of these
studies, along with my recommendations to States, are included
in thematic reports. One of these reports is presented in March
before the Human Rights Council, and another in October before
the UN General Assembly. My most recent thematic report,
presented in October 2012 to the General Assembly, explores
the death penalty as it relates to the international prohibition of
torture and cruel, inhuman, and degrading treatment (CIDT).
Although it may still be
con­sidered that the death penalty is not per se a violation of
international law, my research
suggests that international
standards and practices are in
fact moving in that direction.
The ability of States to impose Juan E. Méndez, Courtesy
the death penalty without vio- Washington College of Law
lating the prohibition of torture
and CIDT is becoming increasingly restricted. Taking this into
account, I have called upon all States to consider whether the use
of the death penalty, as applied in the real world today, fails to
respect the inherent dignity of the human person, causes severe
mental and physical pain or suffering, and constitutes a violation
of the prohibition of torture or CIDT.
To date, the death penalty has generally been treated under
the international standards and regulations governing the right
to life, and in accordance with Article 6 of the International
Covenant on Civil and Political Rights (the Covenant); under
certain circumstances, it has been considered a lawful sanction
under international law. International law decidedly encourages
abolition of the death penalty but does not require it. There
is evidence, however, of an evolving standard within regional
and local jurisprudence and state practice to frame the debate
about the legality of the death penalty within the context of the
fundamental concepts of human dignity and the prohibition of
torture and CIDT. Regional and domestic courts have increasingly held that the death penalty, both as a general practice
and through the specific methods of implementation and other
surrounding circumstances, can amount to CIDT or even torture.
Overview of the Death Penalty and the Prohibition
of Torture and CIDT
Article 6 of the Covenant protects the right to life but allows
the use of the death penalty under specific conditions. Among
these conditions, the death penalty “may be imposed only for
the most serious crimes,” and must be in accordance with both
the law in force at the time of the commission of the crime and
the provisions of the Covenant.1 Furthermore, the death penalty
may only be imposed “pursuant to a final judgment rendered by
a competent court” and may not be carried out against pregnant
women or invoked for crimes committed by persons below the
age of eighteen.2 The Covenant also notes that Article 6 may not
be invoked to prevent or delay the abolition of the death penalty
by States Parties.3
* Juan E. Méndez was appointed UN Special Rapporteur on Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment
on October 6, 2010, and started his three-year mandate on November
1, 2010. He is a Visiting Professor of Law at the American University
Washington College of Law and the author of several publications,
including the recent book written with Marjory Wentworth, Taking
A Stand: The Evolution of Human Rights, (2011). In 2009 and 2010
he was the Special Advisor on Prevention to the Prosecutor of the
International Criminal Court. He is also Co-Chair of the Human
Rights Institute of the International Bar Association. Until May 2009
he was the President of the International Center for Transnational
Justice (ICTJ) and in the summer of 2009 he was a Scholar-inResidence at the Ford Foundation in New York. Concurrent with his
duties at the ICTJ, the Honorable Kofi Annan named Prof. Méndez his
Special Advisor on the Prevention of Genocide, a task he performed
from 2004 to 2007.
Article 7 of the Covenant, however, expressly prohibits the use
of torture or cruel, inhuman, or degrading treatment or punishment.4 Under Article 1.1 of the Convention against Torture (CAT),
torture is defined as “any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person,”
2
by, or with the instigation or consent of a public official or person
acting in an official capacity, so as to intimidate, punish, or obtain
information from the person, among other motives.5 Article 16.1
of the CAT prohibits other acts
of cruel, inhuman, and degrading treatment (CIDT) committed
by, or with the instigation or
consent of public officials, that
cause pain and suffering but do
not reach the level of severity of
torture nor carry the same motive
requirements.6 Under Article 1.1
of the CAT, however, the definition of torture does not include
“pain or suffering arising only
from, inherent in or incidental to
lawful sanctions.”7 Some States
and other international actors argue that, similar to Article 6 of
the Covenant, Article 1.1 of the CAT provides an exception for the
death penalty when conducted in accordance with the laws of the
State imposing the sanctions.
of execution might constitute torture or CIDT, holding instead that
the death penalty, in all cases, “must be carried out in such a way
as to cause the least possible physical and mental suffering.” 13
It has been argued that
various other methods of
execution constitute CIDT
or torture, although there has
not been a clear consensus
in international opinion and
practice. Such has been the
case of execution by hanging,14 which some international and domestic judicial
bodies have indicated may
constitute CIDT or torture.15
Similarly, the Human Rights
Committee decided in 1994 that lethal injection did not amount
to torture or CIDT and has yet to review its decision despite the
emergence of new forensic evidence that indicates otherwise.16
Several methods of execution have
been explicitly deemed violations of
the prohibition of torture and CIDT by
international or domestic judicial bodies
and have been prohibited by a number of
States retaining the death penalty.
The fact that a number of execution methods have been
deemed to constitute torture or CIDT, together with a growing
trend to review all methods of execution for their potential to
cause severe pain and suffering, highlights the increasing difficulty with which a state may impose the death penalty without
violating international law.
As emphasized by various international judicial bodies,
however, this interpretation may change over time.8 The proper
understanding of Article 1.1 of the CAT should be that the “lawful sanctions” exception refers to sanctions that are lawful under
both national and international law, and that practices initially
considered lawful under domestic law may still violate Article
1 if they constitute violations of international human rights law.
The “death row phenomenon” is a relatively new concept
that has emerged within the context of the implementation of
the death penalty and the prohibition of torture and CIDT. The
phenomenon refers to a combination of circumstances that produce severe mental trauma and physical suffering in prisoners
serving death row sentences, including prolonged periods waiting for uncertain outcomes, solitary confinement, poor prison
conditions, and lack of educational and recreational activities.
The prohibition of corporal punishment offers an example of
such an evolving standard. Once considered to be a lawful form
of sanction, numerous decisions by treaty bodies and regional
and domestic courts have held that various forms of corporal
punishment violate Article 1 of the CAT. It is now widely
accepted that corporal punishment amounts per se to CIDT or
torture, and no longer qualifies as a “lawful sanction.”9
Actual Practices of Capital Punishment
Aside from the issue of whether capital punishment constitutes a per se violation of the prohibition of torture and CIDT,
specific methods of execution and other circumstances related to
the implementation of the death penalty, including the so-called
“death row phenomenon,” often constitute violations in and of
themselves. Evolving state practice and international opinion,
including responses to new developments in forensic science,
highlight the extreme difficulty of implementing the death
penalty without violating the prohibition of torture and CIDT.
Several methods of execution have been explicitly deemed
violations of the prohibition of torture and CIDT by international or domestic judicial bodies and have been prohibited by
a number of States retaining the death penalty. The European
Court of Human Rights has held that death by stoning constitutes torture,10 and the United Nations Commission on Human
Rights described stoning as a particularly cruel and inhuman
means of execution.11 Similarly, the Human Rights Committee
has held that execution by gas asphyxiation constitutes CIDT,
pointing to the length of time that this method takes to kill a
person and the availability of other, less cruel methods.12 The
Committee refrained from deciding what other specific methods
Courtesy NixBC
3
The European Court of Human Rights has held that prolonged
periods of time spent on death row awaiting execution violate
the prohibition of CIDT.17 This decision, however, was based not
only on the length of time spent on death row, but also on the
personal circumstances of the inmate, including age and mental
state.18 The Inter-American Court of Human Rights and InterAmerican Commission on Human Rights have similarly held that
prison conditions, together with the anxiety and psychological
suffering caused by prolonged periods on death row, constitute
a violation of the prohibition of torture and CIDT.19
practice accepted as law.” This is usually determined through
state practice applied under a sense of legal obligation or opinio
juris. Evidence of state practice and opinio juris can be found
in the signing and ratification of treaties, policy statements, and
the votes and resolutions of political decision-making bodies.
The growing trend toward the abolition of the death penalty
as imposed on certain individuals, and the regulation of the
particular methods of implementation, reflect the irreconcilable
conflict between the lawful imposition of the sanction and the
prohibition of torture or CIDT under international law. A report
presented in July 2012 by the UN Secretary-General on the
death penalty evidences and highlights this trend.25 The report
states that approximately 150 of the 193 Member States of the
UN have abolished the death penalty for all crimes and that in
those States that retain it there is an observable trend among
many of them to restrict its use or to call for a moratorium
on
executions. 26
Another
document
that
provides evidence of this trend and, at the same time,
constitutes a reflection of the
international movement toward
abolition is the 2011 UN General
Assembly Resolution calling for a
moratorium on the use of the death
penalty with a view to achieve its
abolition.27 In August 2012 the
UN Secretary-General reported to
the UN General Assembly on the
developments of the implementation of that resolution and noted
that several States had either
abolished the death penalty, introduced amendments to abolish it,
stopped its application for certain
crimes, or had adopted a moratorium on the executions.28
The Death Penalty as a Violation Per Se
In certain cases, international law expressly considers the
death penalty to be a violation per se of the prohibition of torture
or CIDT. These standards hold that executions of persons belonging to certain groups, such as juveniles,20 persons with mental
disabilities,21 pregnant women, elderly persons, and persons sentenced after an unfair trial,22 are
considered particularly cruel and
inhuman, regardless of the specific methods of implementation
or other attendant circumstances.
[T]he conflict between the
application of the death penalty and
the prohibition of torture and CIDT is
most evident in the growing number
of regional and domestic opinions
and decisions that have held the death
penalty in all cases to constitute
CIDT or even torture, regardless
of the methods or circumstances of
implementation, or the particular
individuals upon which it is imposed.
Although international law
does not attribute a different value
to the right to life of these particular groups, it holds that the imposition of the death penalty in such
cases per se constitutes CIDT.
These standards are based on the
established belief that the execution of such persons is inherently cruel. The prohibition on
the execution of juveniles is also
considered a jus cogens norm,
an imperative rule that binds all
States.23 Similarly, an increasing
number of regional and domestic courts, including the InterAmerican Court of Human Rights
and the United States Supreme Court, have held that the mandatory death penalty, where judges have no discretion to consider
aggravating or mitigating circumstances with respect to the crime
or the offender, violates due process and amounts to CIDT.24
Yet, the conflict between the
application of the death penalty
and the prohibition of torture
and CIDT is most evident in the
growing number of regional and domestic opinions and decisions that have held the death penalty in all cases to constitute
CIDT or even torture, regardless of the methods or circumstances of implementation, or the particular individuals upon
whom it is imposed.29 The European Court of Human Rights,
for example, has held that the death penalty constitutes CIDT or
even torture, citing various resolutions of the European Human
Rights System that call for the abolition of the death penalty,
and stating that the definition of torture must evolve with
democratic society’s understanding of the term.30 Similarly, the
African Commission on Human and Peoples’ Rights has consistently encouraged the abolition of the death penalty in Africa,
expressing concerns that executions will constitute a violation
of the provisions of the African Charter on Human and Peoples’
Rights (African Charter), specifically Article 4, which states that
human beings are inviolable, with every human being entitled to
respect for his life and the integrity of his person, and Article
5, which guarantees the right to respect of the dignity inherent
in a human being. In its resolutions, the African Commission
urged States Parties that retain the death penalty to consider
International standards holding the death penalty in certain
cases to constitute CIDT, as well as the regulation of specific
methods of execution and other surrounding circumstances,
highlight the difficulty with which States may implement the
death penalty without violating the prohibition of torture or
CIDT. Concurrently, these standards and practices also illustrate
a developing global trend to reconsider capital punishment in all
cases as a violation per se of the prohibition of torture or CIDT.
The Possible Emergence of a Customary Norm
The prohibition of torture is a non-derogable customary
and jus cogens norm that no State is allowed to ignore. The
Statute of the International Court of Justice defines customary
international law in Article 38(1)(b) as “evidence of a general
4
with experts to determine the existence of such customary norm
or the status of its development.
establishing a moratorium on executions, with a view to abolishing this practice.31
In Gregg v. Georgia 32 (1976), U.S. Supreme Court Justice
William J. Brennan argued in his dissenting opinion in the case
that allowed for reinstatement or the death penalty that it is a
moral principle that “the State, even as it punishes, must treat its
citizens in a manner consistent with their intrinsic worth as human
beings—a punishment must not be so severe as to be degrading
to human dignity.” Similarly, a significant number of domestic courts have held that
the death penalty per se
violates the prohibition
of torture and CIDT,
including the South
African Constitutional
Court,33 the Canadian
Supreme Court,34 and
the Constitutional Courts
of Albania, Hungary,
Lithuania, and Ukraine.35
These decisions are consistent with the abolition
of the death penalty in a
number of U.S. states based on the justification that the death
penalty itself constitutes an extreme form of physical and psychological suffering, thereby violating the prohibition of torture
and CIDT.36
Conclusions
The report examines the growing trend in international law
to frame the debate about the legality of the death penalty within
the context of the prohibition of torture and CIDT. I argue that a
customary norm considering the death penalty to be a violation
per se, if not already established, is currently in the process of
development.
Even if this norm has
not yet been established,
I argue that the rigorous conditions applied
to the imposition of the
death penalty under
international law make
retention of this punishment by states costly
and impractical. These
regulations include strict
due process guarantees,
restrictions on the specific methods of execution, prevention of
the “death row phenomenon” and other related circumstances,
and the prohibition on the execution of certain individuals. Even
with such conditions in place, however, states cannot guarantee
that the prohibition of torture will not be violated in each case.
U.S. Supreme Court Justice William J. Brennan
argued that it is a moral principle that “the State,
even as it punishes, must treat its citizens in a
manner consistent with their intrinsic worth as
human beings—a punishment must not be so
severe as to be degrading to human dignity.”
It can be said, therefore, that there is an evolving standard in
international law to consider the death penalty in all cases as a
violation per se of the prohibition of torture and CIDT. Although
my report does not aim to determine the existence of such a customary norm, I firmly believe that a customary norm prohibiting
the death penalty under all circumstances is at least in the process of formation. In the exchange before the General Assembly
on October 23, 2012, I advocated the creation of a special rapporteurship within the United Nations on capital punishment
that would undertake, among other things, a broad consultation
I believe it is necessary for the international community to
discuss this issue further and for states to reconsider whether the
death penalty per se fails to respect the inherent dignity of the
human person and violates the prohibition of torture or CIDT.
I have also called on all states currently employing the death
penalty to strictly observe the standards and conditions imposed
by Article 7 of the Covenant and Articles 1 and 16 of the CAT
in regards to the particular methods of implementation of execution and other related circumstances.
Endnotes
International Covenant on Civil and Political Rights, art. 6, para.
2, Dec. 16, 1966, 6 ILM 638, 993 U.N.T.S. 3.
2 Id. art. 6, para 5.
3 Id. art. 6, para 5.
4 Id. art. 7.
5 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art. 1, para. 1, G.A. Res.
39/46, 39 U.N. GAOR Supp. (No. 51), U.N. Doc. A/19/51 (1984),
entered into force June 26, 1987.
6 Id. art. 16, para. 1.
7 Id. art. 1, para. 1.
8 See Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Promotion and Protection of
all Human Rights, Civil, Political, Economic, Social and Cultural
Rights, Including the Right to Development, sec. 3 The Death
Penalty in the Light of the Prohibition of Cruel, Inhuman and
Degrading Punishment, U.N. Doc. A/HRC/10/44 (Jan. 14, 2009)
(by Manfred Nowak).
9 Nigel S. Rodley, Integrity of the Person, in International
Human Rights Law
10 98 Eur. Ct. H.R.
(Oxford University Press ed., 2000).
at 8 (2001).
11 Human Rights Council Res. 2003/67, Question of the Death
Penalty, E/CN.4/RES/2003/67 at ¶ 4(i) (Apr. 24, 2003); Human
Rights Council Res. 2004/67, Question of the Death Penalty, E/
CN.4/RES/2004/67 at ¶ 4(i) (Apr. 21 2004); Human Rights Council
Res. 2005/59, Question of the Death Penalty, E/CN.4/RES/2005/59
at ¶ 7(i), 4(h) (Apr. 20 2005).
12 H.R. Comm., Chitat Ng v. Canada, Comm. No. 469/1991, 49th
Sess., U.N. Doc. CCPR/C/49/D/469/1991 at ¶ 16.4 (Nov. 5 1993).
13 Id. at ¶16.2
14 See Aitken v. Jamaica, Merits, Reparations, and Costs, Inter-Am.
Ct. H.R. (ser. C) No. 58/02, ¶ 138 (Oct. 21, 2002).
15 See In re Ramadan, Application for Leave to Intervene as Amicus
Curiae of United Nations High Commissioner for Human Rights
(2007); Republic v. Mbushuu, High Court of Tanzania (Jun. 22 1994).
16 E.g., Cox v. Canada, Communication No. 539/1993, U.N.
Doc. CCPR/C/52/D/539/19930 (1994); e.g. Zimmers et al., Lethal
Injection for Execution: Chemical Asphyxiation (2007).
1
5
17
Soering v. UK, 161 Eur. Ct. H.R. (ser. A) (1989).
Id.
19 See Rep. Inter-Am. Ct. H.R. no. 55/02, Merits, Case 11.765,
Paul Lallion, Grenada, October 21, 2002 paras. 86-90; Rep. No.
58/02, Case 12.275, Merits, Denton Aitken, Jamaica, October 21,
2002, paras. 133-134; Hilaire v. Trinidad and Tobago, Inter-Am. Ct.
H.R, Series C, No. 94, paras.167,168 (Jun. 21 2002).
20 For the case of Juveniles see Domingues v. United States, Rep.
Inter-Am. Ct. H.R, No. 62/02, paras. 84-87 (2002) and Roper v.
Simmons, 543 U.S. 551 (2005).
21 See UN Comm. H.R., E/CN.4/RES/2003/67; Atkins v. Virginia,
536 U.S. 304 (2002).
22 See Baboheram-Adhin v. Suriname, Comms. Nos. 148-154/1983
(1985); Pratt v. Jamaica, Comms Nos. 210 & 225 (1986) (1987);
Bader v. Sweden, Eur. Ct. H.R. Application no, 13284/04 (2005).
23 Domingues v. United States, Rep. Inter-Am. Ct. H.R, No. 62/02,
para. 84 (2002).
24 Woodson v. North Carolina 428 U.S. 280 (1976); Hilaire v.
Trinidad and Tobago, Inter-Am. Ct. H.R, Series C, No. 94, paras.
167,168 (2002).
25 Report of the Secretary-General, Questions of the Death Penalty,
Human Rights Council Twenty First Session, A/HRC/21/29 July 2,
2012, para.60.
26
Id. at paras. 6-16.
U.N. G.A. Res. A/RES/65/206 Marc 28, 2011 para.3.d.
28 U.N. Secretary-General, Moratorium on the Use of the Death
Penalty, A/67/226, paras. 6-10 (2012).
29 Supra note 10; see also Manfred Nowak, Is the Death Penalty
an Inhuman Punishment? In Jurisprudence of Human Rights Law
– A comparative and interpretive approach, eds. Turku, Finland:
Institute for Human Rights, Abo Akademi Univ. (2000).
30 Al-Saadoon v. UK, application No. 61498/08, para. 115 (2010).
31 A.C.H.P.R. Res. 42(XXVI) 99 and A.C.H.P.R.
Res.136(XXXXIIII)08.
32 Gregg v. Georgia, 428 U.S. 53, 229 (1976) (dissenting).
33 State v. Makwanyane, 1995 SA no. CCT/3/94 (1995).
34 United States v. Burns, [2001] S.C.R. 283, 289 (Can.).
35 Cited in Ocalan v. Turkey, Eur. Ct. H.R no. 46221/99, para. 159
(2005).
36 Tsakhia Elbegdorj, Pres. of Mongolia, Speech on Capital
Punishment at the State Great Khural (Jan. 14, 2010), available at http://www.president.mn/eng/newsCenter/viewNews.
php?newsId=122 (2010); Representación Permanente de España
ante la ONU, 28 Abril 2011, Ginebra, MA/MSS/N° 14572011.
18
27
6
Improving Human Rights in Mexico:
Constitutional Reforms, International Standards,
and New Requirements for Judges
by Víctor Manuel Collí Ek*
I
Introduction
n Mexico, the defense of human rights is rapidly
evolving due to a series of constitutional amendments
passed in 2011. On June 10, 2011, provisions of the
Mexican Constitution changed profoundly, due to modifications of eleven articles, which came to be known as
the 2011 Human Rights Amendments (HRA 2011). The
amendments transformed the way human rights will be
defended in Mexican society.
This article will focus on two broad issues. First,
it will address how the modifications affected the
Constitution in terms of its composition, articles, and
concepts, as well as the reasons for these modifications.
Second, this article will examine the most important
effect of the modified amendments on the defense
of human rights, namely the creation of a new juridical
system of human rights protection that includes national
and international standards.
Mexican Congress
to date in Mexico. The main theme of the modification focused
on the enhancement of human rights protection through the
adoption of, among other mechanisms, the pro homine principle
and international human rights standards.
The first section will explain the constitutional reform process
and the main reasons for its existence. The second section
will explain the political background that should be taken into
account to understand the HRA 2011. The third section will analyze the most important concepts of the amendment, in order to
make a connection between articles that were changed, and the
reasons for the changes. The final two sections will discuss the
immediate effect of the amendments, that is—the new juridical
system of human rights protection—which was established
through an interpretation of the Mexican Constitution by the
Supreme Court in the context of the Radilla-Pacheco case.
This reform process had two stages. The first round of
debates took place in the House of Representatives on April 23
and 28, 2009, and in the Senate on April 7 and 8, 2010.2 During
these debates, the wording of “Human Rights and their guarantees”3 was adopted, and the following were established as state
obligations and non-derogable rights: the promotion of human
rights in Mexican education, the respect of human rights in
extradition treaties and in the prison system, and the suspension
or derogation clause.4
The second round of debates took place in the House of
Representatives on December 14 and 15, 2010, and in the Senate
on March 3 and 8, 2011. This round changed the reference from
“Human Rights Treaties” to the more inclusive “International
Treaties,” added the prohibition against sexual discrimination,
changed the wording of “freedom of religion” to “foster any
religious belief,”5 included these within the set of non-derogable
rights, and transformed the Investigative Authority of the
Supreme Court into the Human Rights Commission.
Constitutional Amendment Process
On June 10, 2011, eleven articles (1, 3, 11, 15, 18, 29,
33, 89, 97, 102, and 105) of the Mexican Constitution were
modified1 in one of the most significant constitutional changes
* Víctor Manuel Collí Ek is a researcher at the Legal Research
Center of the Universidad Autónoma de Campeche, México. He also
teaches Constitutional Law there, and is currently working on a
project entitled “La Vigencia de la Constitución en la Interpretación
de la Suprema Corte de Justicia de la Nación como Tribunal
Constitucional” with a grant from the National Council of Science
and Technology (CONACYT). This article is a product of that research.
He can be reached at [email protected].
Broader Picture: The Political Background
of the State Reform Ideology
The HRA 2011 must be seen as part of the broader aim to
enhance constitutional mechanisms to better protect human
7
declaration of the amparo effects, and d) to establish a broader way
to activate the amparo procedure, among others.9
Following the HRA 2011 amendments, a fourth constitutional amendment aimed at strengthening the democratic
electoral process was enacted on August 9, 2012. It prioritized
Congress’s treatment of bills proposed by the president, meaning that they will be immediately analyzed by Congress. It also
established new processes to replace the president; new forms of
inclusive democracy, such as referenda and plebiscites; and the
inclusion of independent candidates.
In sum, Mexico has witnessed four bedrock modifications
during the last five years under the State Reform ideology—in
criminal procedure, political and democratic participation, and
human rights recognition and protection—all with the goal
of greater citizen participation and inclusion. The HRA 2011
should be viewed within the framework of these broad changes
designed to strengthen Mexican democracy and provide background for the existence of a national will to improve human
rights protections.
Mexican Supreme Court
rights in Mexico that began several decades ago as part of a
general state reform. This concept was evident in political
speeches, doctrinal studies, and the media, but it was not until
2007 that concrete and practical developments resulted.
The Constitutional Amendment of HRA 2011
At Last, Human Rights
In connection with this social movement, the Mexican
Congress enacted the State Reform Legislation (SRL),6 which
aimed to establish a legislative mechanism to carry out profound
changes in Mexico. The SRL initiative occurred over a one-year
period in 2008. Through the new legislation, the SRL created
an Executive Committee for the Negotiation and Construction
of Agreements, composed of Representatives and Senators. The
Committee was tasked with studying the following themes: the
scheme of State and Government, democracy and the electoral
system, federalism, the judiciary,
and social guarantees. During the
year that it was active, the SRL
process did not create effective
change, but it has continued to
influence discussions on constitutional reform, and was a contributing factor in the HRA 2011
reforms, as well as other reforms
leading up to the HRA 2011.
The constitutional amendment changed the language used
in Title 1, Chapter 1, of the Mexican Constitution, which
before HRA 2011 was called “De las Garantías Individuales”
(Individual Rights) and is now called “De los Derechos
Humanos y sus garantías” (Human Rights and their guarantees).
This is the first change to this Chapter since 1917, when the
Constitutional Assembly, convened by the First Chief Carranza
of the Constitutional Army, created the Constitution.
Before settling on the term
“human rights,” the drafters of
HRA 2011 discussed using the
terms “individual rights” or “fundamental rights.” “Individual
Rights” referred to a nineteenth
and early twentieth century state
discourse that espoused the idea
that rights are given to subjects.
Under this notion, the state had
the power to give rights to citizens, and take them away. Since
this was not the aim of HRA
2011, the term “human rights” was preferred. Also the idea of
“individual” excluded the existence of collective social rights,
which does not occur when “human rights” is used.
The HRA 2011 must be seen as
part of the broader aim to enhance
constitutional mechanisms to better
protect human rights in Mexico that
began several decades ago as part of
a general State reform.
The only modification made
under the SRL, and the first
major constitutional amendment
enacted, is the “Justice Reform”
of 2008.7 This reform addressed issues of the adoption of an
adversarial criminal system, an alternative mediation process, new
tasks for the prosecutor, a presumption of innocence, and special
procedures against organized crime. Following this early reform,
a second important constitutional amendment passed four days
prior to HRA 2011, on June 6, 2011.8 This amendment reformed
the writ of amparo, which is the only constitutional procedure
available to citizens to defend human rights violations. The writ
of amparo protects citizens and their basic guarantees, and protects the Constitution itself by ensuring that its principles are
not violated by statutes or actions of the state that undermine the
basic rights enshrined within it. The main elements of the amparo
amendment were: a) to protect human rights in international
treaties, b) to establish “class action,” c) to establish a general
Likewise, “fundamental rights” was also deemed inappropriate. The use of this terminology prompted a discussion about the
standard of protection under HRA 2011. “Fundamental rights,”
prior to the amendment, was understood in Mexico only to refer
to those human rights included in the Mexican Constitution,
and excluding those enshrined in international treaties. This
narrow view of “fundamental rights” was explicitly adopted
by the Mexican Supreme Court in 2009, when it answered the
question of what human rights the Human Rights Commission
could defend through the Action of Unconstitutionality.10 The
Court responded that “fundamental rights” included just those in
8
the Mexican Constitution, given the Mexican Supreme Court’s
interpretation of the Constitutional Supremacy principle—an
interpretation that would be modified—that allowed the Court to
affirm those human rights included in the Mexican Constitution
but denied it the power to defend human rights only found in
international treaties.
proposal referred only to human rights treaties, this change,
made by the House of Representatives on December 15, 2010,
is an advantage of the reform because it increases the breadth
of the guaranteed rights.15 Thus, the new Article 1 now accepts
the application of customary international law and human rights
standards to Mexican laws and allows human rights advocates
to use international standards as a tool for asserting human
rights violations.
Given the deficiencies of the terms “individual rights” and
“fundamental rights,” the term “human rights” was finally
adopted by HRA 2011,11 as it better enshrined the desired standard of protection than did “individual rights” or “fundamental
rights.” Using “human rights” overcame the objections inherent in
the concept of “individual rights” namely, that these rights are not
created by the state, but are simply recognized, which implied
the idea of rights inherent
to people, not the idea of
inherent individual rights.
There was also no reference
to individuality or collectivity. Furthermore, using the
term “human rights” created an open system for
human rights protection and
improvement of their enjoyment by Mexican citizens,
which sometimes would have
been obstructed in Mexico by
the use of the wording “fundamental rights.” “Human rights”
refers to constitutional rights,
and also allows for the direct
enforcement of international legal instruments that may provide
more effective mechanisms for the defense of human rights than
would the use of “fundamental rights.”
Additionally, the reform established the principle of pro
homine, which signifies applying the greatest protection for the
individual and now states that “rules on human rights shall be
interpreted in accordance with the Constitution and international
treaties on the subject, at all times favoring the broadest protections for people.”16 Prior to
the adoption of this principle,
courts applied a much more
restrictive interpretation of
the Constitution, limiting
the ability of human rights
protection for citizens as in
Action of Unconstitutionality
22/2009.17 By adopting the
pro homine principle in the
legislation, the Mexican
Congress created an opportunity for the courts to reevaluate the standard of
review used in courts to create superior protections for
human rights. The amendment accomplished this in the second paragraph of Article 1 by
explicitly stating the pro homine principle, and requiring that all
rules must be consistent with the Constitution and international
treaties, thus broadening the standard of protection.
“In the Unites States of Mexico, all
persons shall enjoy the rights recognized by
the Constitution and international treaties
to which the Mexican State is party, as
well as guarantees for their protection, the
exercise of which may not be restricted
or suspended, except in cases and under
conditions established by this Constitution.”
The Heart of the Amendment: Article 1
The third paragraph of Article 1 established clear obligations for the state to promote, respect, protect, and guarantee the
human rights of all citizens. To fulfill these obligations, the state
must undertake all measures in accordance with principles of
universality, interdependence, indivisibility, and progressiveness.
By applying international standards through HRA 2011, courts
should interpret the new text to create a state obligation to prevent,
investigate, punish, and remedy violations of human rights, a task
that involves implementing specific regulatory legislation.18
In addition to a new and improved title, new language in
the amendment substantially changed Article 1 of the Mexican
Constitution. It now states, “In the Unites States of Mexico, all
persons shall enjoy the rights recognized by the Constitution and
international treaties to which the Mexican State is party, as well
as guarantees for their protection, the exercise of which may not
be restricted or suspended, except in cases and under conditions
established by this Constitution.”12
The rephrasing of Article 1 of the Constitution is at the heart
of the overall constitutional amendment reforms of 2011, meant
to be a systematic change in the conception, recognition, and
protection of human rights. The first change was for the owner
of rights, altered from “Men”—as the Constitution had referred
to it since its creation—to “Person,” avoiding, with this alteration, gender reductionisms.13
Educational Effect
To ensure the realization of the new human rights protections, the amendment highlighted the importance of implementing an educational19 program on the reforms, aimed at the entire
population.20 This is now required through the modification
of Article 3, which now states, “The education provided by
the state tends to harmoniously develop all the faculties of the
human being and promote, at once, the love of country, respect
for human rights, and awareness of international solidarity, independence, and justice.”21
Furthermore, the essential modification in wording from
“fundamental rights” to “human rights,” and the adoption of the
concept of the “person,” rather than “man,” opened the window
for a new interpretation of the rights of persons. The amendment states that “all people will enjoy the human rights recognized in this Constitution and in international treaties to which
the State of Mexico is party,”14 which requires the adoption of
international standards of human rights. Given that the original
This educational dimension is important, because as Lynn
Hunt, Amartya Sen,22 and others scholars argue, there are two
main dimensions for human rights as instruments for society.
First, increased education helps protect people’s liberty against
9
state oppression by increasing knowledge and the ability to
make effective legal demands, and furthermore, can help provide inspiration for legislation. Second, education is an instrument for acculturation, meaning that education about human
rights is a tool that provokes change in cultural
perceptions. This, in turn,
helps people develop into
engaged citizens who may
defend and enforce their
rights and demand that
the state comply with
its obligations.
that a secondary law must be adopted by the Mexican legislature
to give effect to these rights, but this has not happened yet.
Individual Reforms to
Individual Rights
In addition to the broad
changes in the language of
Article 1 that increase protection for human rights,
HRA 2011 also reformed
and improved constitu- Inter-American Court of Human Rights
tional protections for specific human rights. For
example, the Representatives in the second round of constitutional modifications recommended that the last paragraph of
Article 1 use the more specific term “sexual preferences,” rather
than just “preferences,” to avoid misunderstanding and increase
protection for lesbian, gay, bisexual, and transgendered persons’
(LGBT) human rights: “Any discrimination on the grounds of
ethnic or national origin, gender, age, disability, social status,
health status, religion, opinions, sexual preference, marital, or
any other status, that threatens human dignity and is intended
to nullify or impair the rights and freedoms of individuals is
prohibited.”23
Not only does this amendment increase protection for LGBT
individuals in Mexico, but it also places Mexico among the
vanguard in this hotly debated issue.24 Two years earlier, the
Supreme Court declared constitutional a legal amendment in
the Federal District of Mexico City that expanded the definition
of marriage to same-sex couples and gave them the option to
become adoptive parents.25
Additionally, Article 15 proposed adherence to future international treaties only to the extent that they comport with
human rights standards
enshrined in the Mexican
Constitution and international treaties previously
adopted. This created
a level of supremacy for
human rights norms over all
domestic law. The reformed
article states, “The signing
of agreements or treaties
that alter human right recognized by the Constitution
and international treaties to
which the Mexican State is
party is not authorized.”29
The HRA 2011 reforms
to Article 18 sought to promote and protect human
rights standards in the
prison system by declaring that “the prison system is organized
on the basis of respect for human rights.”30
Finally, HRA 2011 reformed Article 33 of the Constitution,
regarding the deportation process, to recognize certain rights
for aliens. The reform curtailed the discretion of the executive
branch to order deportation by first requiring a hearing and by
establishing a legal framework for this process.31 The new text
now reads: “[F]oreign persons are those who do not possess the
qualifications set out in Article 30, and shall enjoy the constitutional rights and guarantees recognized by this Constitution.
The Executive of the Union, after a hearing, may expel foreigners from the country based on the law, which will regulate the
administrative procedure, as well as the location and duration of
the detention.”32
Through these reforms, the new Mexican Constitution offers
a large umbrella of protection for human rights and creates new,
effective tools for human rights defenders and advocates.
Human Rights ‘Suspension Clause’
In addition to improved protection for LGBT individuals, HRA 2011 also reformed Article 11 by altering the first
paragraph and adding a second paragraph containing further
modifications.26 These reforms addressed refugee and asylum
issues and gave specific rights to these groups of people under
the concept of the “Person” as the rights holder. 27 These newly
created rights for refugees and asylum-seekers adopted by the
Constituent Assembly came from a new recognition of the obligations imposed on Mexico through international treaties and
declarations, such as the American Declaration of the Rights
and Duties of Man, the American Convention on Human Rights,
and the Convention Related to the Status of Refugees. Thus, the
new text of Article 11 established that: “[I]n the case of persecution for political reasons, everyone has the right to seek asylum;
for humanitarian reasons they will receive refuge. The law will
regulate their origins and exceptions.”28 It is important to note
Under the new amendments, a key human rights protection was the modification of Article 29 that created a class of
non-derogable rights. The modification of Article 29 proposed
new rules about the human rights suspension clause; it granted
Congress and the Standing Committee33 the authority to approve
the suspension of certain rights. Under Article 29 as amended,
the President must make the request in coordination with the
Secretary of State and the Attorney General’s office; it must
be limited in time and not directed against a particular person.
Furthermore, it is compulsory that the Supreme Court review
the constitutionality of the decrees issued by the Executive during the suspension. This review requirement is a fundamental
guarantee within the suspension clause because, in addition to
the review requirement, there is an explicit set of non-derogable
rights that are not subject to suspension.34
10
Like the non-derogable rights laid out in the American
Convention on Human Rights, Article 29 of the Mexican
Constitution states as non-derogable the rights of non-discrimination, recognition as a person before the law, life, personal
integrity, protection of the family, name, nationality, childhood,
political rights, freedom of thought, conscience and religion, ex
post facto laws, prohibition of capital punishment, prohibition
of slavery and servitude, prohibition of forced disappearance,
and torture. Furthermore, Article 29 creates judicial guarantees
essential for the protection of these rights. It is noteworthy that
although the list includes the right to freedom of thought, it does
not include the right to freedom of expression.35 This exclusion
is important given the democratic nature of Mexico, taking into
account that democracies are set up with the participation of the
people who need to be free to express themselves, especially in
emergency-type situations.
comply, in all actions that fall within their official capacity, with
the recommendations of the Human Rights Commissions.
The reform also introduces an interesting and beneficial idea
regarding the work of the State Human Rights Commissions.
The reforms grant State Commissions autonomy from state legislatures, which better enables the State Commissions to protect
human rights. Finally, the new amendments establish that the
appointment of the president of both the National Commission
and the State Commissions shall comply with a transparent process through public consultation, ensuring the autonomy of the
organizations and creating public accountability.44 This new rule
will help alleviate concerns of corruption and coercion.
A New Model of Jurisdictional Defense: Debate in
the Supreme Court
As has been explained, prior to the amendments, the Mexican
Supreme Court45 only recognized those rights written into the
Constitution. The amendment now explicitly states that the
Constitution recognizes the human rights enshrined in international treaties and standards and creates an unprecedented
window of opportunity for the courts to expand rights, but it also
leaves the courts with new questions to solve. The imposition
of international standards on national mechanisms, specifically
standards for the recognition and defense of individual human
rights, prompted a series of questions about the relationship
between national institutions and international requirements.
The (Uncomfortable) Authority to Investigate
The Authority to Investigate, which grants authorization for a
judicial investigation of serious human rights violations, has been at
the center of a number of cases within the Mexican Supreme Court
because of its contentious nature.36 The highly negative societal
response to the Court’s decisions in the Lydia Cacho37 and ABC38
cases is illustrative of the uncomfortable nature of this authority.
Both cases generated negative reactions to the decisions of the
Court; due to this, the Court requested the removal of this authority
because then it would not have had to deal with these cases.
A primary question centered on the relationship and interaction between international jurisdictions, represented primarily
by the Inter-American Court of Human Rights (IACtHR),
and the national judiciary. The specific concern regarded the
“diffuse control 46 of conventionality47 ex officio”48—that is,
how human rights in international treaties will be defended in
Mexican courts, and how they will react.
In an attempt to deal with these concerns, the constitutional reform amended Articles 97 and 102.39 The power of the
legislature to initiate an investigation, previously located in
Article 97, is now located in Article 102, which governs the
National Commission of Human Rights.40 The new Article 102
provides that an investigation may be started proprio motu by
exhortation by the Federal Executive, a Chamber of Congress, a
governor, or a state legislature.41 Throughout the debate process,
the Senate articulated its reasons for the reforms, stating that
“with the development and full implementation of a public body
with the characteristics of the National Commission of Human
Rights, this attribution has no reason to exist within the Supreme
Court’s set of powers.”42 Through a dissemination of the power
to initiate investigations, these modifications attempt to increase
pressure on the Court to not shy away from human rights issues,
and also create more mechanisms for human rights defenders
to access the courts.
The question of diffuse control was discussed at the Plenary
of the Mexican Supreme Court on July 7, 2011, in the context of
the Radilla-Pacheco v. Mexico case,49 a condemnatory sentence
to Mexico from the IACtHR. For the Mexican Supreme Court,
the fundamental issue in this case was the extent of the control
of conventionality ex officio, specifically paragraph 339 of the
judgment of the IACtHR, which states:
With regard to judicial practices, this Tribunal has
established, in its jurisprudence, that it is aware that
the domestic judges and tribunals are subject to the
rule of law and that, therefore, they are compelled to
apply the regulations in force within the legal system.
But once a State has ratified an international treaty
such as the American Convention, its judges, as part
of the State’s apparatus, are also submitted to it, which
compels them to make sure that the provisions of the
Convention are not affected by the application of laws
contrary to its object and purpose, and that they do not
lack legal effects from their creation. In other words,
the Judiciary shall exercise a “control of conventionality” ex officio between domestic regulations and the
American Convention, evidently within the framework
of its respective competences and the corresponding
procedural regulations. Within this task, the Judiciary
Non-Judicial System
Because Mexico is a federation, there are Human Rights
Commissions both at the federal and state level. The new constitutional text articulates a need for what the bill referred to as
a strengthening of the non-judicial system for the protection of
human rights. The new articles require that the recommendations of the Human Rights Commissions may only be derogated
from if there are reasonable grounds to do so and if the action
is public. Furthermore, only the Senate, Standing Committee,
or state legislatures may classify the derogation as legal but not
in compliance with the Human Rights Commissions.43 This
ensures that the majority of state and federal officials must
11
shall take into consideration not only the treaty but also
the interpretation the Inter-American Court, final interpreter of the American Convention, has made of it.50
whether a law or act complied with the Convention? And, did
diffuse control of conventionality also mean diffuse control of
constitutionality? In other words, by giving all judges the authority to interpret and apply the American Convention on Human
Rights, would they also have the authority to interpret the
Mexican Constitution and declare certain acts unconstitutional
as well as contrary to the object and purpose of the Convention?
Answering this last question in the positive would have meant
changing the traditional structure of Mexican juridical powers.
In other words, the IACtHR stated three things. First, diffuse
control applies to all Mexican judges, regardless of jurisdiction
(federal or state). Second, they must apply control of conventionality, which means that every judge, in any case at bar, is
obliged to defend human rights found not only in the Mexican
Constitution but also in international treaties. Third, the judge
may, at will, analyze and decide a human rights violation, in any
case under his or her study (ex officio). That is the meaning of
diffuse control of conventionality ex officio.
In its July 21, 2011, session, the Supreme Court resolved these
questions by establishing a model of constitutional control and
human rights defense that included all courts.52 It united the new
Article 1 with Article 133, as well as with the arguments of the
Inter-American Court in paragraph 339 of the Radilla-Pacheco
decision, thus adopting both constitutionality and conventionality
control for all judges in the country—in essence creating a system
of review much like the system in the United States. All judges, at
all levels, have the ability to declare an act or law unconstitutional
and/or not in accordance with the American Convention, rather
than limiting this power only to the Supreme Court.
The most important part of this interpretation lies in the
implication of the diffuse51 dimension in the new amendments:
All judges—federal and state—must abide by the Mexican
Constitution, and also with international human rights law.
Through this new power given to state judges, who were historically forbidden to interpret the Constitution or apply international
law by the Supreme Court’s constitutional interpretation, the
changes mandated by HRA 2011 and IACtHR decisions, such
as Radilla-Pacheco, will be better implemented and will have
greater effect. Not only will more judges be following international human rights standards, but federal judges will have a
harder time shirking their responsibility as state judges put pressure
on them to comply.
This new and revolutionary model was only possible because
of the influence of HRA 2011, which sought to incorporate
increased protection of human rights within the Mexican Courts.
It is important to note that while some action may still only be
deemed unconstitutional by the federal judiciary under a theory
of “concentrated control,” this applies only to constitutional
controversies. Secondly, the “diffuse control” by no means
implies that all judges and courts may make general declaration
of unconstitutionality. Diffuse control simply means that judges
may sever the law that the judge considers unconstitutional in
the case he or she is currently deciding.
The Radilla-Pacheco Case and the Adoption
Diffuse Control of Constitutionality and
Conventionality
of
After the decision of the IACtHR in Radilla-Pacheco, the
Mexican judiciary engaged in a debate about the weight that
should be given to judgments of the IACtHR and the role of
national judges in deviating from the IACtHR standard of review
for claims based on human rights violations. These discussions
were spear-headed by Justice Guillermo Ortiz Mayagoitia, who
was then President of the Supreme Court.
The exercise of this diffuse control comes from two sources
and types of authority: first, from the electoral court, through
the sixth paragraph of Article 99 of the Constitution and, second, from the rest of the country’s courts by way of Article 133.
This is the most important change created by the interpretation
because for decades local judges were forbidden to review the
constitutionality of acts and law, a power previously only granted
to federal judges. Therefore, HRA 2011 dramatically expanded
the overall number of judges with the authority to interpret the
Constitution and to protect human rights in the Constitution and
in the international treaties. Finally, the pro homine principle
gives these same courts the power to determine the threshold to
protect persons under the law.
The IACtHR urged the adoption of diffuse conventionality
control, which would effectively give all judges—federal and
state—the power to declare laws or acts unconstitutional and/or
incompatible with the American Convention on Human Rights.
At the same time, however, the HRA 2011 amendments made a
provision that required the adoption of international standards
of human rights, leaving judges with less autonomy and therefore leading to a possible class of standards. The issues to be
decided, therefore, were: What should be the implication in the
adoption of conventionality control? To what extent should the
control be diffuse, meaning, should all judges be able to decide
The two last points are revolutionary concepts in Mexico
because for years it was maintained that the limited number of
judges with constitutionality control excluded the possibility of
The reform gives the opportunity to open Mexican courts to international
standards, and the adoption of the pro homine principle facilitates the change in
mind-set for the Court to pave the way to increasing the number of judges and
courts, debating, discussing and resolving complex issues of law, independent of
the federal political process.
12
diffuse control to all judicial authorities, leaving this power solely
in the hands of the federal judiciary. The reform gives the opportunity to open Mexican courts to international standards, and the
adoption of the pro homine principle facilitates the change in
mind-set for the Court to pave the way to increasing the number of
judges and courts that are debating, discussing and resolving complex issues of law, independent of the federal political process.
adoption of international standards of human rights, the pro
homine principle, a new process for using the human rights
suspension clause, and a group of rights that cannot be suspended. Furthermore, the adoption of new international treaties, a
reformed deportation process, and the differential use of the criminal system help increase and positively influence a structure more
respectful to human rights. The positive impacts on the Mexican
legal system are notable as well. The amendment requires the
observance of amparo, which protects the procedural guarantees
of human rights through the constitutional control of human rights
based on international treaties. This change endowed all Mexican
judges—both federal and state—with the power to apply international standards in human rights cases for the first time.
Conclusion
The year 2011 was a revolutionary one for Mexico. The
June 10, 2011, constitutional amendment is creating a new
atmosphere for the protection of human rights through the
Endnotes
1
PaginasPub/DetallePub.aspx?AsuntoID=105663.
11 Diario de los Debates de la Cámara de Diputados [DDCD],
23 de abril de 2009, at 360 [hereinafter DDCD].
12 C.P., art. 1, para. 1. “En los Estados Unidos Mexicanos todas
las personas gozarán de los derechos humanos reconocidos en esta
Constitución y en los tratados internacionales de los que el Estado
Mexicano sea parte, así como de las garantías para su protección,
cuyo ejercicio no podrá restringirse ni suspenderse, salvo en los
casos y bajo las condiciones que esta Constitución establece.”
13DDCD, supra note 11, at 68.
14 “todas las personas gozarán de los derechos humanos reconocidos
en esta Constitución y en los tratados internacionales de los que el
Estado Mexicano sea parte.”
15 Víctor M. Martínez Bullé-Goyri, Reforma Constitucional en
Materia de Derechos Humanos, 130 Boletín Mexicano de Derecho
Comparado [BMDC] 406, 411 (2011).
16 Constitución Política de los Estados Unidos Mexicanos [C.P.],
as amended, art. 1, para. 2, Diario Oficial de la Federación [DO],
30 de noviembre de 2012. “Las normas relativas a los derechos
humanos se interpretarán de conformidad con esta Constitución y
con los tratados internacionales de la materia favoreciendo en todo
momento a las personas la protección más amplia.”
17 Case heard by the Mexican Supreme Court on March 4, 2010,
analyzing which human rights could be protected by the National
Human Rights Commission. The Commission decided that only those
rights recognized in the Mexican Constitution could be protected.
18 According to the amendment’s second transitory article, this law,
providing redress, shall be issued one year after the decree enters
into force.
19 Instituto de Investigaciones Jurídicas UNAM, Encuesta
Nacional de Cultura Constitucional (2011), available at http://www.
juridicas.unam.mx/invest/areas/opinion/doc/EncuestaConstitucion.pdf.
20 See U.N. Human Rights Council, Report of the Special Rapporteur
on the independence of judges and lawyers: Addendum Mission to
Mexico, ¶ 22, U.N. Doc. A/HRC/17/30/Add.3 (April 18, 2011).
21 C.P., art. 3, para. 2. “La educación que imparta el Estado tenderá
a desarrollar armónicamente, todas las facultades del ser humano
y fomentará en él, a la vez, el amor a la Patria, el respeto a los
derechos humanos y la conciencia de la solidaridad internacional,
en la independencia y en la justicia.”
22 See generally Lynn Hunt, La Invención de los Derechos
Humanos (2009); Amartya Sen, The Idea of Justice (2009).
23 C.P., art. 1, para. 5. “Queda prohibida toda discriminación
motivada por origen étnico o nacional, el género, la edad, las
discapacidades, la condición social, las condiciones de salud, la
religión, las opiniones, las preferencias sexuales, el estado civil o
Constitución Política de los Estados Unidos Mexicanos [C.P.], as
amended, Diario Oficial de la Federación [DO], 30 de noviembre de
2012. The Mexican Constitution has 136 articles organized in nine
titles, with chapters inside them. It was enacted on February 5, 1917,
at the end of Mexican Revolution. Its official name is the “Political
Constitution of the United States of Mexico, which amends that of
February 5, 1857” (“Constitución Política de los Estados Unidos
Mexicanos, que reforma la del 5 de febrero de 1857”).
2 In accordance with Article 135, the process to amend the
Mexican Constitution requires two-thirds of the votes of the congressional members in attendance at the respective session. Such
amendments and reforms shall be valid when ratified by the majority
of the state legislatures. The National Congress is the only body
that can propose modifications to a bill; state legislatures are only
allowed to vote in the affirmative or the negative. For the entire
amendment process, see http://www.diputados.gob.mx/LeyesBiblio/
proceso/lxi/117_DOF_10jun11.pdf.
3 “De los Derechos Humanos y sus garantías.” Here and throughout, this article will note the original Spanish when referring to
issues where the exact wording was contentious.
4 The suspension clause creates a special procedure by which
some rights can be suspended in, for example, the case of invasion,
serious disturbance of the public peace, or any other situation that
puts society in danger or conflict.
5 “Profesar creencia religiosa alguna.”
6 Ley para la Reforma del Estado [SRL] [State Reform Legislation],
Diario Oficial de la Federación [DO], 13 de abril de 2007.
7 Reforma Constitucional de Seguridad y Justicia [Constitutional
Reform on Security and Justice], Diario Oficial de la Federación
[DO], 18 de junio de 2008.
8 Reforma Constitucional en Materia de Amparo [Constitutional
Reform on the Subject of Amparo], Diario Oficial de la Federación
[DO], 6 de junio de 2011.
9 The writ of amparo is a constitutional procedure contemplated
in Articles 103 and 107 of the Mexican Constitution. Article 103
says that this procedure is to protect against “general rules, acts
or omissions of the authorities that violate human rights and guarantees recognized for their protection granted by this Constitution
and by international treaties to which the Mexican State is party.”
Article 107 establishes the threshold for the procedure; it then is
developed in a secondary law called the “Amparo Law.”
10 Acción de Inconstitucionalidad 22/2009. Derecho a la Tutela
Judicial Efectiva [Right to an Effective Remedy], Pleno de la
Suprema Corte de Justicia [SCJN] [Supreme Court], Semanario
Judicial de la Federación y su Gaceta, 4 de marzo de 2010,
available at http://www2.scjn.gob.mx/ConsultaTematica/
13
FacultadDeInvestigacion-1-2009V1.pdf. On June 5, 2009, there was
a fire in a day care center named “Guardería ABC, Sociedad Civil”
where children died. The day care center was administered by the
Mexican State; therefore, the Supreme Court analyzed if the state
could be found liable. The Court determined that there were human
rights violations, but failed to specify who bore responsibility.
39 The former Article 97, which pertained to the Supreme Court
but because of the amendment was relocated to Article 102, which
pertains to the National Commission of Human Rights, gives
authority “to check some fact or facts which constitute a grave
violation of any individual guarantee.”
40 See Jorge Carpizo, ¿Es Acertada la Probable Transferencia
de la Función de Investigación de la Suprema Corte a la
Comisión Nacional de los Derechos Humanos?, in La Reforma
Constitucional de Derechos Humanos: Un Nuevo Paradigma 313,
331–32 (Miguel Carbonell & Pedro Salazar eds., 2011) (relating
concerns about the change).
41 Gaceta del Senado (Legislatura LXI, Año I, Segundo Periodo
Ordinario, jueves 8 de abril del 2010, no. 114) at 182.
42 Id.
43 These Commissions also play an important role in the InterAmerican System, Luis González Placencia & Julieta Morales
Sánchez, El papel de los organismos no jurisdiccionales de protección a los derechos humanos en el Sistema Interamericano de
Protección a los Derechos Humanos, Revista Iberoamericana de
Derecho Procesal Constitucional, 2011, at 81.
44 According to the amendment’s seventh transitory article, this
framework law shall be issued one year after the decree enters
into force.
45 The Mexican Supreme Court is composed of eleven justices (called
ministers) and works in two ways. First, in chambers, the justices deliberate in two groups of five; the President does not participate. Second,
in plenary, the President takes part in the deliberation with the ten
other justices. Only issues of importance and significance to the entire
constitutional system reach the plenary. See Estructura Orgánica
[Organizational Structure], Suprema Corte de Justicia de la Nación
[Supreme Court] (Dec. 2012), http://www.scjn.gob.mx/transparencia/
Paginas/trans_int_org.aspx.Inicio.aspx.
46 “Diffuse control” refers to the fact that any federal or state
judge may analyze laws according to the Constitution (control
of constitutionality) or treaties (control of conventionality).
47 Conventionality refers to whether an act or law in Mexico
is in accordance with a convention or treaty.
48 A judge is now able to analyze human rights violations without taking into account if the right is established in the Mexican
Constitution or any international treaty, and without a request from
any party in the procedure to do so.
49 Preliminary Exceptions, Background, Reparations and Costs,
Inter-Am. Ct. H.R. (ser. C) No. 777/01 (Nov. 23, 2009) (condemning
Mexico for violations of the rights to life, due process, and freedom of
expression, as well as the right to be free from enforced disappearance).
50 Id., ¶ 339 (emphasis added).
51 See supra note 46.
52 Previously, the Constitution did not authorize diffuse control of
constitutionality. See Control Difuso de la Constitucionalidad de
Normas Generales. No lo Autoriza el Artículo 133 de la Constitución.
2.- Control Judicial de la Constitución. Es Atribución Exclusiva del
Poder Judicial de la Federación. Semanario Judicial de la Federación
y su Gaceta, agosto del 1999, tesis P./J. 74/99, Página 5.
cualquier otra que atente contra la dignidad humana y tenga por objeto
anular o menoscabar los derechos y libertades de las personas.”
24 Acción de Inconstitucionalidad 2/2010, Pleno de la Suprema
Corte de Justicia [SCJN] [Supreme Court], available at http://www2.
scjn.gob.mx/red2/expedientes/ [hereinafter Same-Sex Marriage Case,
2/2010]. See generally Alejandro Madrazo & Estefanía Vela, The
Mexican Supreme Court’s (Sexual) Revolution?, 89 Tex. L. Rev.
1863, 1878–80 (2011) (explaining the Court’s decision).
25 See Same-Sex Marriage Case, 2/2010.
26 Modifications were made during the second round of the HRA
2011 amendment process. See supra note 1, and accompanying text.
27 This issue has been highlighted as a focus that must be
addressed in the Mexican context. See Human Rights Watch,
World Report 2011: Events of 2010 260 (2011); U.S. Dep’t of
State, Trafficking in Persons Report 249 (2012).
28 C.P., art. 11, para. 2. “En caso de persecución, por motivos
de orden político, toda persona tiene derecho a solicitar asilo; por
causas de carácter humanitario se recibirá refugio. La ley regulará
sus procedencias y excepciones.”
29 C.P., art. 15. “No se autoriza la celebración . . . de convenios
o tratados en virtud de los que se alteren los derechos humanos
reconocidos por esta Constitución y en los tratados internacionales
de los que el Estado Mexicano sea parte.”
30 C.P., art. 18, para. 2. “El sistema penitenciario se organizará
sobre la base del respeto a los derechos humanos.”
31 According to the reform amendment’s fifth transitory article,
this law, providing the legal framework for deportation, shall be
issued one year after the decree enters into force.
32 C.P., art. 33. “Son personas extranjeras las que no posean las
calidades determinadas en el artículo 30 constitucional y que
gozarán de los derechos humanos y garantías que reconoce esta
Constitución. El Ejecutivo de la Unión, previa audiencia, podrá
expulsar del territorio nacional a personas extranjeras con fundamento en la ley, la cual regulará el procedimiento administrativo,
así como el lugar y tiempo que dure la detención.”
33 The Standing Committee is the congressional committee that
remains active when Congress is in recess.
34 According to the reform amendment’s fourth transitory article,
this law, providing regulation to the suspension clause, shall be
issued one year after the decree enters into force.
35 This is of particular interest if we include studies on the reality
of freedom of expression in Mexico. See U.N. Human Rights
Council, Informe del Relator Especial Sobre la Promoción y
Protección del Derecho a la Libertad de Opinión y de Expresión:
Adición Misión a México [Report of the Special Rapporteur on
the Promotion and Protection of the Right to Freedom of Opinion
and Expression: Addendum Mission to Mexico], ¶ 18, U.N. Doc.
A/HRC/17/27/Add.3 (May 19, 2011); see also Konrad Adenauer
Stiftung & Poliat, Índice de Desarrollo Democrático de América
Latina 112–13 (2011).
36 According to the previous Article 97, the “Investigative
Authority” authorized the Supreme Court to investigate serious
violations of human rights, but the meaning of this authority was
always a matter of controversy.
37 Facultad de Investigación [Investigative Authority] 2/2006,
Pleno de la Suprema Corte de Justicia [SCJN] [Supreme Court],
available at http://200.38.163.175:50470/juridica/engroses/publico/
06000020.123.pdf. In this case the Mexican Supreme Court analyzed
if the detention of journalist Lydia Cacho from 2005 to 2007, after
she wrote the book “The Evils of Eden,” constituted serious violations
of human rights. The Court decided that no rights were violated.
See Aída Castro, Cronología: Caso Lydia Cacho (2008).
38 Facultad de Investigación 1/2009, SCJN, available at
http://www2.scjn.gob.mx/fi1-2009/Documentos/Informes/
14
Human Rights in the United States: Legal Aid Alleges that
Denying Access to Migrant Labor Camps is a Violation of
the Human Right to Access Justice
by Reena K. Shah* and Lauren E. Bartlett**
A
s of the year 2000, it is estimated
that there are more than 86 million migrant workers worldwide,
the vast majority of whom suffer poor
living and working conditions.1 In the
United States (U.S.), more than 3 million
migrant farmworkers,2 including at least
100,000 children,3 are estimated to labor
in fields every year, many of whom lack
access to justice, earn sub-living wages,
and exist in dehumanizing circumstances.4
Farmworkers are among the most exploited
and vulnerable populations in the United
States; yet, distressingly, they are also
the least protected by U.S. law and law
enforcement.
Legal aid5 advocates in the United
States attempt to raise awareness and
educate this starkly poor, mobile, and
isolated population about the legal protections and remedies available to them, Courtesy U.S. National Archives
only to have employers either outright deny access or prevent meaningful communication with
The complaint, which is the basis for this article, is notable
farmworkers in the migrant labor camps where migrants and
because it is the first-ever joint effort among U.S. legal aid orgatheir families often reside during the course of their employment.
nizations to utilize the Special Procedures created through the
One nonprofit law firm that provides such services, Maryland
Office of the UN High Commissioner for Human Rights to shine
Legal Aid Bureau,6 spearheaded the submission of a joint legal
an international spotlight on an entrenched local issue. It comes
aid complaint on the issue to the United Nations (UN) Special
on the heels of a new partnership between Maryland Legal Aid,
Rapporteur on Extreme Poverty and Human Rights. Advocates
Texas RioGrande Legal Aid, and the Center for Human Rights
who reach out to, and represent, migrant farmworkers argue that
and Humanitarian Law (the Center) at the American University
the lack of federal law mandating access to migrant labor camps,
Washington College of Law. One of the Center’s programs,
combined with discriminatory treatment of migrant farmworkthe Local Human Rights Lawyering Project, aims to normalers under U.S. labor laws and lackluster enforcement of those
ize human rights at the state and local levels and help legal
laws that would apply, violates a panoply of farmworkers’
aid lawyers integrate human rights into their daily work.7 Such
human rights, including their right to access justice.
partnerships are part of a larger push among social justice advocates in the United States to galvanize a domestic human rights
movement so as to bring human rights home, rather than only
applying them overseas, as has thus far been more common.
* Reena K. Shah is a long-time advocate for social justice who
currently works at Maryland Legal Aid Bureau, where she is the
Director of the newly launched Human Rights Project.
As described more fully below, the joint legal aid complaint
submitted to the UN Special Rapporteur on Extreme Poverty
and Human Rights argues that the denial of access to migrant
labor camps ostensibly equals an inability for the farmworkers
to access justice, as well as other human rights, especially the
right to health and the right to family and community. The complaint argues that the United States, as a State Party to various
** Lauren E. Bartlett, an alumna of the Human Rights Brief, is
the Local Human Rights Lawyering Project Director at the Center
for Human Rights and Humanitarian Law at the American University
Washington College of Law, and works with legal aid attorneys to
integrate human rights into their daily work.
15
ameliorate the migrant farmworkers’ plight.24 When outreach
workers attempt to bridge the gap and reach farmworkers at the
labor camps, however, employers commonly tell outreach workers
to leave the property, accuse them of trespassing, demand prior
notice before visiting, or pressure the advocates to break confidentiality and infringe on the privacy of farmworkers by naming
prospective clients who are seeking assistance. Outreach workers
also regularly experience harassment, and are threatened with
arrest or even violence by employers at the migrant labor camps.
human rights treaties, is required to protect, respect, and fulfill
the human rights of all people, including migrants. By refusing
to uphold the right to access to justice for farmworkers in the
United States, the U.S. government, as well as state and local
governments, violates human rights law, thereby allowing millions of farmworkers to continuously suffer inhumane conditions and assaults on human dignity.
Migrant Farmworkers are One of the Most
Vulnerable Populations in the United States
The effects of this employer aggression are manifold. For
example, employers’ intimidation of community service providers discourages them from providing services, and the limited
resources of legal aid organizations may be drained litigating
the camp-access issues rather than addressing the farmworkers’
underlying legal needs. If outreach workers do accommodate
employers’ demands of prior notification in the name of maintaining good relationships and avoiding conflict, the approach
effectively undermines the farmworkers’ vital privacy interest
and the confidential relationship between the service providers
and workers. Employers’ ability to limit access in this way also
precludes advocates’ ability to identify and serve victims of
domestic violence, child labor, and human trafficking.
In the United States, migrant farmworkers are among the
most vulnerable because they are among the poorest—if not the
poorest—laborers.8 Twenty-four percent of migrant farmworkers
earn less than $7,500 per year and only three percent of migrant
farmworkers earn more than $30,000 per year.9 Adding salt to
the wound, most do not receive any employment-related benefits,
such as health care, disability insurance, vacation, or pension.
Farm labor is also one of the most dangerous occupations in
the United States, with injuries and illness disabling farmworkers at a rate three times that of the general population10 and
work-related injuries causing death at a rate more than seven
times11 that of workers generally.12 Farmworkers also suffer
higher incidences of HIV infection,13 infant mortality,14 pesticide poisoning,15 dehydration,16 heat stress,17 and tuberculosis,
the last of which is contracted at a rate six times that of the general population.18 They are also subjected to deplorable living
conditions, including overcrowding,
poor ventilation and light, a lack of
indoor plumbing, and poor field sanitation and work hygiene.19
Denying access to migrant labor camps is neither an occasional nor an accidental occurrence. Employers are well aware
of the impact that outreach might have on the farmworkers and
make it a point to let farmworkers know of the consequences of
seeking assistance. A stark example,
as reported in the Charlotte Observer,
is the message that the North Carolina
Growers Association hammered home
when workers arrived for orientation: “[…] don’t complain, don’t seek
legal help.”25 The Charlotte Observer
reported that an employee of the
Association “forbids” farmworkers
from associating with Legal Services of North Carolina, whose
farmworker unit provides legal advice, and the Association
clearly warns that the price of disobedience is being “sent back
to Mexico.”26
Denying access to migrant labor
camps is neither an occasional
nor an accidental occurrence.
A language barrier compounds the
population’s vulnerability, as many are
not fluent in English. Almost eighty
percent of migrant workers are foreign
born and of those seventy-five percent are of Mexican origin.20
For most, basic communication in English, let alone navigation of
the U.S. legal system, is a challenge. Compounding the language
barrier are low levels of education among migrant workers, whose
average education level is sixth grade.21
Maryland Legal Aid, the organization that spearheaded the
complaint with the UN, represents and advocates on behalf of
agricultural workers who live or work in Maryland or Delaware.
As part of its Farmworker Program (the Program), attorneys litigate employment cases related to agriculture and non-employment matters that impact the migrant and seasonal agricultural
worker community.
Advocates Across The United States Are Arbitrarily
Denied Meaningful Access To Migrant Camps
The routine denial or lack of meaningful access to legal
advocates, health care providers, and other farmworker service
providers to the migrant labor camps, where migrant farmworkers and their families often live during the course of their
employment, make the population even more vulnerable.22 The
camps are almost always located in rural areas that are close
to the fields, far from towns and service providers. Because
farmworkers who live at these camps are often at the mercy of
employers for transportation, their ability to access community
resources, including neighborhood businesses, medical services,
and legal services, is extremely limited.23
The experiences of attorneys at Maryland Legal Aid exemplify how a lack of access to migrant camps forestalls access
to justice for farmworkers. On April 11, 2011,27 the Program’s
supervising attorney, Nathaniel Norton, and his paralegal went to
Albright Farms to reach out to farmworkers, give them information about their rights, answer questions, and make them aware
of the availability of assistance. As Mr. Norton and his paralegal
sat in their car at the end of the farm’s driveway, Mr. Albright, the
owner of the farm, and another man drove their trucks right up
next to the car at high speed and parked at the side and directly
behind Mr. Norton’s car. Mr. Albright then began screaming at
the advocates, stating that they were trespassing on the property
Farmworkers’ access to outreach workers able to come to the
labor camps and farms on which the migrants and their families
live during the course of their employment has been deemed
to be a prerequisite to the success of any program designed to
16
vulnerable, marginally protected under the law, and ripe for
exploitation.
and that they had no right to be there without permission. The
owner stated he could, “shoot people” who were on his property without permission, and that the advocates were a, “bunch
of bleeding heart liberals who were poking their noses where
they did not belong.”28 Mr. Norton explained that the Maryland
Attorney General Opinion Letter29 allowed him and other similar advocates to come on the property to do outreach. He further
explained the reason for not giving advance notice was that he
did not want to have his efforts frustrated if farmworkers were
told not to speak to outreach workers, or if their conversations
were monitored. Mr. Norton eventually left the property without
being able to complete his work.30
Law on Migrant Labor Camp Access in the United
States is Inconsistent and Discriminatory
Furthermore, the principal federal employment law for
farmworkers in the United States, the Migrant and Seasonal
Agricultural Worker Protection Act (AWPA),34 fails to mandate
access to labor camps that house migrant farmworkers, despite
the fact that U.S. federal courts have consistently held that,
(i) workers who live in employer-provided housing have constitutionally protected interests in
receiving information and visitors,
and (ii) staff of migrant services
organizations have constitutionally protected interests in accessing
workers and communicating with
them regarding their rights.35
Such blatant threats underscore
why it is critical to provide access
to migrant labor camps and protect
farmworker privacy. Without these
protections, farmworkers are dissuaded from seeking help because
of a real threat of retaliation31 and
are for all intents and purposes shut
out of the legal system. This results
in wage theft; lack of drinking water,
hand-washing or toilet facilities in
the field; lack of redress for employer
abuse; pesticide exposure; unreported domestic violence and rape;
and even illegal child labor, to name a few. The lack of oversight
gives employers a free pass to engage in a “race to the bottom,”
and to exploit to an unconscionable degree the human rights
of this extremely vulnerable population.32
Shamefully, the power differential
between the isolated and
unprotected farmworker and the
all-controlling employer creates an
“almost slave-master” relationship.
Because of the lack of federal
protections, the status of the right
to access migrant camps varies by
state. Unfortunately, very few states
have a statute that mandates right of
access to migrant labor camps. Only a handful have an Attorney
General’s Opinion, which is an exposition on the status of the
state’s law according to the Attorney General and something law
enforcement should in theory be bound by as much as any legislative act. However, regardless of the status of the law in each
state, the tendency of law enforcement to bow to the demands of
the employers, instead of upholding farmworkers’ rights, further
makes the U.S. government complicit in human rights violations
committed against farmworkers.
Shamefully, the power differential between the isolated and
unprotected farmworker and the all-controlling employer creates
an “almost slave-master” relationship.33 The control that employers
exert over farmworkers’ ability to connect with services designed
for the farmworkers’ benefit makes farmworkers an easy target
for inhuman treatment and abuse at the hands of their employers.
The farmworkers constantly face threats of violence against
security of their person. The consequences of not providing
access to justice are thus grave for a population that is deeply
The U.S. government’s silence with respect to camp access
is part of its history of systematic discrimination and exclusion of the farmworker population from legal protections.36
For example, farmworkers are denied the federal rights and
protections necessary to organize and join unions under the
National Labor Relations Act (NLRA),37 the right to overtime
pay, protections for child labor, and in the case
of farmworkers employed on small farms, even
the right to minimum wage under the Fair Labor
Standards Act (FLSA).38 Further, farmworkers
are excluded from many workers’ compensation
laws, which are under the purview of the states,
not the federal government.
While the passage of AWPA was a step in
the right direction, the law still does not allow
collective bargaining and does not apply to
smaller employers. It does, however, provide
some important protections. Most significantly,
it requires that agricultural employers disclose
terms of employment at the time of recruitment
and comply with those terms, that employers
who use farm labor contractors confirm that the
contractors are registered with and licensed by
the Department of Labor, that providers of housing meet local and federal housing standards, and
that transporters of farmworkers use vehicles that
Courtesy U.S. National Archives
17
are insured and meet basic federal safety
standards. 39
The farmworkers face tremendous
hurdles in even taking the first step toward
enforcement of their rights. The threats of
retaliation, criminal arrests, deportation,
and other related sanctions for meeting
with lawyers loom large for farmworkers;
the purpose of the threats is to control
communication, force a breach of confidentiality, and silence workers from seeking legal or other assistance.
The U.S. Department of Labor’s
(DOL) Wage and Hour Division administers and enforces labor laws, which
farmworkers can also directly challenge through lawsuits in federal district
courts. However, the U.S. government
does not adequately enforce laws pertaining to farmworkers. In fact, the U.S.
Department of Labor actions devoted
to AWPA and FLSA violations have
declined drastically over the years. In
the case of FLSA violations, between
1938 and 1990, fifty to eighty percent
of all court cases each year were brought
by the DOL (rather than through a
worker’s private right of action in court).
Since 1990, however, that percentage
has dwindled markedly to about ten to
twenty percent of all cases.40
Lack of Access to Migrant Labor
Camps Means Lack of Access
to Justice and an Inability to
Fulfill Other Human Rights
In 1974, the U.S. Congress directed the
new Legal Services Corporation (LSC)46
to study whether certain client groups
faced special barriers to accessing the justice system and had special unmet legal
needs. One of the groups studied was
migrant and seasonal farmworkers. LSC
Further, the Occupational Safety and
completed the study in 1977, concluding
Health Act, originally enacted in 1970 Courtesy U.S. National Archives
that, (i) migrant farmworkers do face speand administered and enforced by the
cial barriers that limit their access to the legal assistance delivDOL’s Occupational Safety and Health Administration (OSHA),
ered by legal aid programs, and (ii) migrant farmworkers have
is the principal federal law designed to protect employees from
specialized legal needs that cannot be adequately met through
hazards at the workplace. But for many years, OSHA did not
the regular legal services-delivery system.47
use its regulatory authority to protect farmworkers. For example,
OSHA set a field sanitation standard only after receiving a thirtyThis decades-old LSC study remains the most comprehenday deadline to do so by a federal judge, who castigated OSHA’s
sive inquiry into the special barriers to access to justice faced by
fourteen years of “resistance” as “intractable” and a “disgracemigrant farmworkers, but its findings and recommendations are
ful chapter of legal neglect.”41 Similarly, the Environmental
just as relevant today. The study identified the following factors
Protection Agency, which has the principal responsibility for
as barriers to access to justice: (1) isolation in remote locations,
approving, restricting, and banning the use of agricultural pes(2) short length of time in an area, (3) language, (4) economic
ticides, has been more responsive to the demands of pesticide
dependence upon employers, and (5) cultural isolation. The
manufacturers and growers than the safety and health concerns
study advised that, “[. . .] outreach is the principal activity that
of the farmworkers and their families.42
legal services can undertake to break down barriers which prevent access [of workers to legal services].”48
Given that the U.S. government inadequately enforces laws
designed to protect farmworkers and that the farmworkers lack
the information, knowledge, tools, and foremost the freedom
needed to enforce the laws themselves, the role of policing and
vindicating farmworkers’ rights falls on non-government lawyers bringing claims on behalf of individual clients. While it is
beneficial that the AWPA offers a private right of action so farmworkers have an ability to bring individual cases, the law fails to
provide for an award of attorney’s fees that would create a strong
disincentive for private attorneys to accept farmworker cases.43
Further, the study noted that many migrant farmworkers
do not view the legal system as a way of favorably resolving
disputes, and are hesitant to use the legal system in part because
farmworkers’ experiences with the legal system in their country
of origin also color their perspective on the U.S. legal system.
The study noted that farmworkers tend to have little knowledge
of the legal protections, that cover them in the U.S. workplace.
Farmworkers often do not know how or where to seek help with
problems, assume that the legal system is so biased against them
that a just remedy is impossible, assume that their participation in
the legal system may result in problems with the criminal justice
system, and fear that legal entanglements may jeopardize their
immigration status, even where their presence in the country
is perfectly lawful.49
Under these conditions, the only legitimate recourse for farmworkers in obtaining access to justice and enforcement of their
rights is through legal aid offices, whose charge is to provide
free legal aid to the poorest and most vulnerable. However, the
U.S. Congress limited farmworkers’ ability to attain true justice
through this route because it hamstrung publicly funded legal
aid offices both from representing undocumented workers44
and from bringing class action lawsuits.45 These restrictions, in
turn, have shut the door to any legal relief, and certainly to any
access to justice, for a significant segment of the U.S. farmworker population.
Given that the U.S. government has recognized that agricultural workers face special barriers to accessing legal assistance,
the legal system in general, and the enforcement of their rights,
it is incumbent on the U.S. government to ensure access for
outside legal advocates and other service providers as a means
of ensuring access to justice and other services essential to
18
farmworkers’ health, welfare, and dignity. Without the ability
to bring those perpetrating harm to justice, farmworkers are not
only denied access to justice and an effective remedy, but they
are also unable to fulfill other fundamental human rights. The
denial of meaningful access for service providers to migrant
labor camps leaves farmworkers extremely isolated, and without
the information that they could use to seek help to file wage
claims, report domestic violence,
seek health care, and demand
a safer work environment. The
judicial system is often the only
method of securing the right to an
adequate standard of living, the
right to health, and freedom from
discrimination.
that “[e]ach State Party shall take effective measures to review
governmental, national and local policies, and to amend, rescind
or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists[.]”61
While the ICERD in Article 1(2) does state that the ICERD “shall
not apply to distinctions, exclusions, restrictions or preferences
made by the State Party… between citizens and non-citizens,”62
General Recommendation 30 of
the Committee on the Elimination
of Racial Discrimination, which
oversees the ICERD, clearly states
that Article 1(2) “must be construed so as to avoid undermining
the basic prohibition of discrimination”63 and that State Parties
“ensure that non-citizens enjoy
equal protection and recognition before the law” in the administration of justice and “combat ill-treatment of and discrimination against non-citizens by police and other law enforcement
agencies.”64
[T]he United States is failing
to meet its obligations to migrant
farmworkers under human rights law.
Accessing justice allows for
the vindication of all human rights. Without access to justice, all
too often there is no effective remedy for real and severe harms
done. What is more, as Reginald Heber Smith, considered the
father of the legal aid system, wrote, “Without equal access to
the law, the system not only robs the poor of their only protection, but it places it in the hands of their oppressors, the most
powerful and ruthless weapon ever created.”50
Both the ICCPR and the ICERD provide for life, liberty, and security of the person; freedom of assembly and
association; non-discrimination; and freedom of movement.
The ICCPR requires that “[n]o one shall be subjected to
arbitrary or unlawful interference with his privacy, family,
or correspondence” and that in the case of such interference, “[e]
veryone has a right to protection of the law against such interference or attacks.”65 In terms of international comparative law,
the Supreme Court of Canada has also held similarly that the
State has positive obligations to protect vulnerable workers from
actions by private employers.66 Moreover, the Inter-American
Court of Human Rights has held that states must respect the
labor and employment rights of unauthorized workers on parity
with their authorized counterparts.67
Denial of Access to Migrant Labor Camps in the
United States Violates Human Rights Law
Human rights law obligates States to protect, respect, and fulfill the human rights of all persons, including the right to access
justice.51 In the United States, ratified treaties are binding on
the federal, state, and local governments through the Supremacy
Clause of the U.S. Constitution.52 The United States has ratified the International Covenant on Civil and Political Rights
(ICCPR)53 and the International Convention on the Elimination
of Racial Discrimination (ICERD),54 both of which obligate the
United States to ensure access to justice at every level of government for all people present in the country. This obligation holds
regardless of the United States’ modus operandi of exceptionalism and self-purported role as a model for other nations in terms
of human rights standards and achievements.55
Conclusion
Unfortunately, the United States is failing to meet its obligations to migrant farmworkers under human rights law. The
United States structures its systems to compound human rights
violations against migrant farmworkers, rather than uphold those
rights. As a result, migrant farmworkers are poor, exploited,
vulnerable, and unequal under the law. Furthermore, they have
limited opportunities in which to enforce their rights and challenge these conditions. Outreach to this isolated population is
the gateway for changing this situation and ensuring access to
the legal system and other services. However, the United States
fails to have a federal mandate requiring access and affirming
the human rights of farmworkers to privacy in their labor camp
homes and has a patchwork of state laws that, for the most part,
do not mandate access and lack the will to enforce migrant
farmworkers’ rights.
Under the ICCPR, States Parties undertake to, “ensure that
any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official
capacity.”56 Further, the States have agreed that, “[a]ll persons
are equal before the law and are entitled without any discrimination to the equal protection of the law.”57 In this respect, “the
law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on
any ground such as race, . . . national or social origin, . . . birth
or other status.”58 Moreover, the Human Rights Committee,
the treaty body that oversees the ICCPR, has made it clear that
human rights law extends to all people present in the United
States, regardless of their migration status.59
The joint legal aid complaint submitted by Maryland Legal
Aid argues that the U.S. government should be held accountable
for the human rights violations against migrant farmworkers
and the UN Special Rapporteur on Extreme Poverty and Human
Rights should urge the government to take federal action to correct these wrongs. Violations of human rights of farmworkers
are not just a local problem in Maryland and across the United
The ICERD also provides that “States Parties undertake to
prohibit and to eliminate racial discrimination in all its forms
and to guarantee the right of everyone, without distinction as to
race, colour, or national or ethnic origin, to equality before the
law[.]”60 The ICERD further requires through Article 2(1)(c)
19
States, but also a global problem for which the United States fails
to be the exception that upholds and vindicates farmworkers’
rights. Instead of being a model and a leader of freedom, justice,
and liberty for the rest of the world, the United States is complicit in compounding human rights violations against one of the
its most vulnerable populations.
Endnotes
1
perspective that farmworkers often put
up with dangerous conditions because they feel they have no
other option).
13 Cynthia R. Albarárn & Adeline Nyamathi., HIV and Mexican
Migrant Workers in the United States: A Review Applying the
Vulnerable Populations Conceptual Model, 26 J. Ass’n Nurses
AIDS Care 173, 173 (2011).
14 Gina Solomon, Pesticides and Human Health 39 (2000).
15 Id. at 13–17.
16 See Oxfam America, supra note 4, at 17.
17 Id.
18CDC, Prevention and Control of Tuberculosis in Migrant
Farmworkers: Recommendations of the Advisory Council for the
Elimination of Tuberculosis, 44 CDC MMWR RR-10 (1992), available
at http://www.cdc.gov/mmwr/preview/mmwrhtml/00032773.htm.
19 Fields of Tears, Economist (Dec. 16, 2010), http://www.
economist.com/node/17722932.
20 U.S. Dep’t of Labor, Findings of the National Agricultural
Workers Survey (NAWS) 2001–2002 3 (2005), available at
http://www.doleta.gov/agworker/report9/naws_rpt9.pdf.
21 Id. at 18.
22 See generally Legal Services Corporation, Special Legal
Problems and Problems of Access to Legal Services (1977).
23 Eduardo Gonzalez, Jr., Migrant Farm Workers: Our Nation’s
Invisible Population, Extension: U. District Columbia (Mar. 6,
2012), http://www.extension.org/pages/9960/migrant-farm-workers:
-our-nations-invisible-population.
24 See Elizabeth J. duFresne & John J. McDonnell, The Migrant
Labor Camps: Enclaves of Isolation in our Midst, 40 Fordham L.
Rev. 279, 282 (1971).
25 Oxfam America, supra note 4, at 50.
26 Id.
27 Interview with Nathaniel Norton, Supervising Attorney,
Maryland Legal Aid Bureau Farmworker Program, in Baltimore,
Md. (Oct. 2012). All facts related to the events this date were
related to the authors by Mr. Norton.
28 See generally Surkiewicz, supra note 12 (describing Mr.
Norton’s difficulties with denial of access by employers).
29 In a 1982 opinion, Maryland Attorney General Stephen H. Sachs
concluded that the employer-owner of a migrant labor camp cannot
deny a resident farm worker the right to receive guests and to be
visited by clergy, medical, or other service personnel, lawyers, and
the press. 67 Md. Op. Att’y Gen. 4 (1982).
30 Mr. Norton later sent a letter to Mr. Albright notifying him
of the facts of the interaction and the relevant legal issues raised.
31 See Mark Heffington, The Case for Putting an End to “Building
Good Grower Relationships”: Why it is Time to Stop Discriminating
against Our Farmworker Patients, MCN Streamline, May–June
2009, at 4, available at http://www.migrantclinician.org/files/MCN%
20MayJun09_fLR.pdf (arguing from the perspective of a medical
doctor that this practice needs to stop in order to protect workers).
32 See Surkeiwicz, supra note 12.
33Heffington, supra note 31, at 4.
34 29 U.S.C. §§ 1801–72 (2006).
35 See, e.g., Francheschina v. Morgan, 346 F. Supp. 833, 837–39
(S.D. Ind. 1972) (holding that, consistent with all previous jurisprudence, the First and Fourteenth Amendments protect migrants’
Towards a Fair Deal for Migrant Workers in the Global
Economy, Rep. IV of the Int’l Labor Office on its 92d Sess.
(2004), 3, 7, available at http://www.ilo.org/public/english/
standards/relm/ilc/ilc92/pdf/rep-vi.pdf.
2 Nat’l Ctr. for Farmworker Health, Inc., Farmworker
Health Factsheet, 1 (2012), available at http://www.ncfh.org/
docs/fs-Migrant%20Demographics.pdf.
3 Christine Ahn et al., Migrant Farmworkers: American’s New
Plantation Workers, Food First (Mar. 31, 2004), http://www.
foodfirst.org/node/45.
4 Oxfam America, Like Machines in the Fields 1 (2004), available
at http://www.spnyc.org/fairfoodnyc/pdf/oxfam2006report.pdf. See
generally Human Rights Watch, Cultivating Fear (2012), available
at http://www.hrw.org/sites/default/files/reports/us0512For
Upload_1.pdf (describing the particularly dehumanizing effect
of sexual violence or sexual harassment on farm workers than
can be particularly powerless).
5 For the purposes of this article, the terms “legal aid advocates”
or “legal aid attorneys” both refers to lawyers who work for nonprofit organizations that provide free advice and legal representation to low-income people in the United States. The term “legal aid”
also includes organizations that are funded by the Legal Services
Corporation (LSC) and those that receive no funding from the LSC.
6 The communication was also joined by Legal Aid of North
Carolina, Texas RioGrande Legal Aid, Colorado Legal Services,
and Illinois Migrant Legal Assistance Project of LAF, representing
the experiences of fourteen states. The Legal Aid Bureau, Inc., or
Maryland Legal Aid, is a statewide nonprofit law firm that has provided quality legal services to low-income individuals for the past
100 years. For more information on Maryland Legal Aid, please
visit http://www.mdlab.org.
7 For more information on the Local Human Rights Lawyering
Project, please visit www.WCLCenterforHR.org.
8 See Oxfam America, supra note 4, at 11–15 (detailing
the conditions leading to poverty among farm workers).
9 U.S. Dep’t of Labor, Findings of the National Agricultural
Workers Survey (NAWS) 2001–2002 47–48 (2005), available
at http://www.doleta.gov/agworker/report9/naws_rpt9.pdf.
10Oxfam, supra note 4, at 16 (internal citations omitted).
11 Bureau of Labor & Statistics, Census of Fatal Occupational
Injuries Chart, (1992-2011) 2 (2011), available at http://www.bls.
gov/iif/oshwc/cfoi/cfch0010.pdf (reporting the fatality rate for all
workers at 3.5 deaths per 100,000 workers); Centers for Disease
Control and Prevention, Agricultural Safety (July 13, 2012), http://
www.bls.gov/iif/oshwc/cfoi/cfch0010.pdf (finding the fatality rate
for agricultural workers to be 26.1 deaths per 100,000 workers,
which is approximately 7.45 times the rate for all workers).
12 Nat’l Ctr. for Farmworker Health, Inc., Occupational Health
and Safety, 1 (2012), available at http://www.ncfh.org/docs/
fs-Occ%20Health.pdf. See generally Margaret Reeves et al.,
Fields of Poison 2002: California Farmworkers and Pesticides
(1997), available at http://www.ufw.org/white_papers/report.pdf.
(explaining the detrimental effect that pesticides have on the health
of farmworkers); Joe Surkiewicz, Helping migrant farmworkers,
decades after “Harvest,” Daily Rec., Jul. 8, 2012, http://thedaily
record.com/2012/07/08/joe-surkiewicz-helping-migrantfarmworkers-decades-after-harvest/ (relating an advocate’s
20
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N.
Doc. A/RES/217(III) (Dec. 10, 1948), at art. 2, 6. The United States
has not signed the ICRMW.
52U.S. Const. art.VI, cl. 2.
53 International Covenant on Civil and Political Rights, opened
for signature Dec. 16, 1966, 1916 U.S.T. 521, 999 U.N.T.S. 171
[hereinafter ICCPR]. The United States issued a Declaration upon
ratification that “the provisions of articles 1 through 27 of the
Covenant are not self-executing,” meaning unenforceable under
U.S. law without separate enacting legislation.
54 International Convention on the Elimination of All Forms
of Racial Discrimination, opened for signature Dec. 21, 1965,
660 U.N.T.S. 195 [hereinafter ICERD]. The United States Senate
issued a Declaration that the provisions of ICERD are not selfexecuting, meaning unenforceable under U.S. law without separate
enacting legislation.
55 See, e.g., Judith Resnick, Law’s Migration: American
Exceptionalism, Silent Dialogues, and Federalism’s Multiple
Ports of Entry, 115 Yale L.J. 1564, 1582–84 (2006) (explaining
U.S. exceptionalism).
56ICCPR, supra note 53, at art. 2(3).
57 Id. at art. 26.
58 Id.
59 UN Human Rights Committee, General Comment 23,
The Rights of Minorities (Art. 27), ¶ 5.2, U.N. Doc. CCPR/C/21/
Rev.1/Add.5 (Aug. 4, 1994); ICRMW, supra note 51, at art. 1(1).
60ICERD, supra note 54, at art. 5.
61 Id.
62 Id.
63 Committee on the Elimination of Racial Discrimination, General
Recommendation 30, Discrimination Against Non Citizens, ¶ 2,
U.N. Doc. CERD/C/64/Misc.11/rev.3 (Jan. 10, 2004).
64 Id. at ¶¶ 18, 21.
65ICCPR, supra note 53, at art. 17.
66 Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016
(Can.); see Steven M. Barrett, Dunmore v. Ontorio (Attorney
General): Freedom of Association at the Crossroads, 10 Canadian
Lab. & Emp. L.J. 83, 83–84 (2003).
67 Juridical Condition and Rights of Undocumented Migrants,
Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶
110 (Sept. 17, 2003).
access to information and bar trespassing charges against individuals who speak to or distribute literature to migrant workers);
Folgueras v. Hassle, 331 F. Supp. 615, 623 (W.D. Mich. 1971)
(ruling that the “owner of these migrant labor camps . . . may not
constitutionally deprive the migrant laborers living in his camps, or
members of assistance organizations, or mere visitors of reasonable
access to his camps”).
36 See generally Marc Linder, Migrant Workers and Minimum
Wages: Regulating the Exploitation of Agricultural Labor in
the United States (1992) (explaining the exclusion of migrant
farmworkers from labor protection and exploring the effect this
has on individuals).
37 29 U.S.C. § 152(3) (excluding agricultural laborers from
the definition of employee as it pertains to the NLRA).
38 29 U.S.C. § 213 (detailing exceptions to the FLSA); see also
Oxfam America, supra note 4 at 39 (explaining the effect of labor
law exceptions on agricultural workers).
39 29 U.S.C. §§ 1801–72.
40 Office of Pub. Affairs, Administrative Office of the U.S. Courts,
Judicial Business of the United States Courts Table C-2 (1941-1998).
41 Farmworker Justice Fund v. Brock, 811 F.2d 613, 614 (D.C. Cir.
1987), vacated as moot 817 F.2d 890 (1987).
42 See Emily Headon, Environmental Working Group,
From Bureaucrats to Fat Cats (1999); Todd Hettenbach,
Environmental Working Group, Attack of the Killer Weeds
(1999); Shelley Davis, Advocates Criticize EPA’s Method of
Evaluating Farmworkers’ Pesticide Risks, Farmworker Justice
News, Spring 2003, at 1, 1, 5–7.
43 29 U.S.C. § 1854 (2006).
44 45 C.F.R. § 1626.3 (2011).
45 42 U.S.C. § 2996e.
46 The Legal Services Corporation (LSC) is a nonprofit corporation established by the U.S. Government to provide free legal
assistance to those who would otherwise be unable to afford it.
For more information on LSC, please visit http://www.lsc.gov.
47 Legal Services Corporation, supra note 22.
48 Id. at 35 (emphasis added).
49 Id.
50 Reginald Heber Smith, Justice and the Poor, 134–35 (1919).
51 International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families, art. 83(a), entered
into force July 1, 2003, 220 U.N.T.S. 3 [hereinafter ICRMW];
21
The Club-K Anti-Ship Missile System: A Case Study in
Perfidy and its Repression
by Robert Clarke*
T
Introduction
the protection of civilians requires an institutional separation
between them and combatants, such a divide may prevent the
repression of civilian activity which imperils that same protection.
he Club-K anti-ship missile system represents a new and
dangerous means of naval warfare, and one which existing international humanitarian law (IHL) is ill-equipped
to confront. Secreted inside the ubiquitous intermodal shipping
container and placed on the deck of a cargo carrier, the missile
system reveals itself only when the container roof opens, and the
missile rises from concealment and launches.1 As footage of test
launches and displays at defense exhibitions illustrate, the ClubK’s ease of transport and concealment offers obvious advantages
for a belligerent in an asymmetric conflict by allowing a readily available launch platform to approach high-value warships
unmolested and attack.2
Perfidy or Ruse
Question of Confidence
Although armies have employed deception since time immemorial, long-standing custom prohibits acts of treachery.4 This
juxtaposition is restated in Article 37 of Additional Protocol I of
the Geneva Convention, under which belligerents may employ
ruses of war but not “kill, injure or capture an adversary by
resort to perfidy,” that is, by exploiting the protection conferred
by IHL.5 Both Article 37 and the customary rule it embodies
apply to naval warfare, and as the San Remo Manual observes,
civilians at sea are generally
entitled to the same protection
in times of armed conflict as
those on land.6
While the only immediate victims of such an attack would be
enemy combatants who are lawful targets under IHL, the weapon’s
chameleon-like nature and
advertised method of employment indicate that it is likely to
be used to prepare and execute
an attack while feigning civilian status. Such tactics are an
example of perfidy, deliberately inducing trust on the part
of an adversary in order to
injure, kill, or capture them.3
The Club-K anti-ship missile
system represents a new and dangerous
means of naval warfare, and one which
existing international humanitarian law
is ill-equipped to confront.
Perfidy is composed of
three elements — the invitation of confidence, intention
to betray that confidence, and
fulfillment of that intention
by killing, injuring, or capturing the adversary.7 Although
it is not perfidious to merely
deploy the Club-K on a vessel, to use the weapon effectively its
deceptive qualities must be parlayed into the preparation and
execution of an attack under civilian guise. The example par
excellence is to place the weapon on a converted merchant vessel, as depicted by the manufacturers,8 and use the duo’s benign
appearance to deceive and attack an enemy warship. The nature
of the weapon therefore induces resort to tactics that exploit the
obligation of warships to distinguish themselves and to limit
attacks to military objectives, and thus constitute killing or injuring by resort to perfidy.
A well-recognized breach
of IHL, perfidy destroys the
mutual trust on which all other rules depend for compliance,
thereby sowing the seeds of further violations. In particular,
this article submits that weapons like the Club-K would lead a
belligerent, having recognized that apparently civilian vessels
have been used to attack its forces, to suspect that other civilian
vessels may be warships and attack them indiscriminately. Any
military advantage gained from the use of such weapons would
therefore come at the cost of increased risk to civilian life.
However, although it may undermine the distinction between
warships and civilian vessels, the fact that the Club-K is likely to
be used perfidiously would not necessarily inculpate the weapon’s
manufacturers. In particular, the structural discreteness
of the armed forces would make it difficult to prove a mental
nexus between the commanders who determine the method of
attack and the arms makers who provide the means. Thus, while
Potential for Deception
The essence of perfidy is the invitation of confidence—
the sowing of a belief in one’s adversary that they are legally
obliged to accord protection to the attacking party,9 of which
the feigning of civilian, non-combatant status is axiomatic.10
It is a cardinal rule of IHL, implicit in the proposition that
armed conflict is a state governed by law, that belligerents must
distinguish military objectives from civilians and attack only
* Robert Clarke, from the University of Western Australia, is the
winner of the 2011 International Humanitarian Law (IHL) Student
Writing Competition.
22
the former.11 Therefore, armed force may be used only against
vessels for which nature, location, purpose, or use makes an
effective contribution to military action and for which total or
partial destruction, capture, or neutralization offers a definite
military advantage.12
launch vessel is that depicted by the weapon’s manufacturers—a
converted merchant vessel. Although the manufacturers insist
that it cannot be placed on “any container carrier,” they do
expressly indicate that it is “designed for installation on the ships
called up for military service” rather than dedicated warships
such as “corvettes, frigates, destroyers [and] cruisers.”23 That is,
it is intended to be deployed on merchant vessels requisitioned
for naval service. Such conversion of civilian ships to military
use, including participation in hostilities, is lawful provided that
they are marked and registered as set out above.
The corollary of this rule is that those bearing arms must
distinguish themselves. Military forces on the battlefield constitute an exceptional subdivision of human society, in that as
between themselves they may do acts ordinarily considered
criminal, provided they are identifiable by insignia, open carriage of arms, and other means.13 Both rules represent the same
fundamental tenet—that warfare is a relation between states alone
and so to wage “total war,” that is, war without discrimination
between a state’s military organs and the civilian population, is
prohibited.14 All of the subsidiary protections extended to civilians flow from this legal and practical distinction between them
and combatants.
Due to their design, however, merchant vessels are easily
adaptable only to logistical, rather than combat functions.24 And
even if technically feasible, giving a merchant vessel all the
combat capabilities of a true warship would, for the reasons set
out above, imbue it with a conspicuously military appearance. To
realize the deceptive potential of the Club-K, the attacker must
rather eschew the ability to defend themselves and stake success
on the launch vessel’s civilian appearance. Notwithstanding the
long range of Club-type missiles,25 it is unlikely that the launch
vessel could otherwise safely approach a superior enemy force.
In the ordinary course of events, therefore, the abuse of confidence would be both a causal precondition of the attack and
intended as the ideal or indeed only possible avenue for success.
Therefore, to be armed and participate in hostilities, warships
must be operated by state naval forces, distinguished by external
markings, and listed on a public register.15 Warships may, in
turn, be attacked at any time. Merchant vessels are ordinarily
subject only to search and seizure but may not carry offensive
weaponry or use armed force except in self-defense.16 A merchant vessel’s legal protection therefore depends on its practical
exclusion from hostilities, and to arm it with anti-ship missiles
and thereby integrate it into a belligerent’s war effort exposes it
to attack.17 However, if weapons like the Club-K and other distinctively military features could be concealed, the vessel could
maintain both a powerful armament and the pretense that it is
legally protected, thus inviting the confidence of an adversary.
Ruses of War
If using the Club-K to kill or injure under cover of civilian
status is perfidious, there remains the question of when feigning
such status passes from ruse of war to perfidy. Ruses—deceptive measures which neither infringe a rule of law nor invite the
confidence of an adversary with respect to its protection—are
expressly permitted by Additional Protocol I.26 Submarines and
landmines, for example, use deception more or less continually,
but the analogy which the Club-K’s manufacturers draw with
them is incorrect—submarines and landmines conceal themselves using the natural environment, not by feigning civilian
status. Moreover, as stated above, use of landmines disguised as
innocuous items is prohibited.27
Betrayal and Intent
However, perfidy requires more than mere deception, and
it is not perfidious to merely place a containerized missile
launcher or other concealed armament on a vessel. The language
of Additional Protocol I, which refers to killing or injuring “by
resort to perfidy,” imports a causal link between the betrayal of
confidence and the killing or wounding of enemy personnel.18
To constitute a single transaction and thus an instance of perfidy,
the invitation of confidence must be the “proximate cause” of
the subsequent attack.19 Perfidy also has a subjective aspect, the
intention to abuse the protection conferred by IHL.20
However, the established usages of naval warfare do allow
warships to fly false flags and feign the appearance of merchant
vessels provided that they show their “true colors” before going
“into action,” “actual armed engagement,” or “launching an
attack.”28 This is in contrast to hospital ships and other vessels
having special protection, the imitation of which is prohibited
at all times.29 If IHL grants warships this license to invite the
confidence of an adversary when not participating in hostilities,
can the Club-K be used consistently therewith?
For these causal and subjective elements to be present, the
Club-K must be an effective cloak for the launch vessel’s true
nature. As discussed above, it could conceal one obvious feature, but to invite and betray the confidence of an adversary the
launch vessel would need to eschew all outward signs of military
character, whether visual, acoustic, or electronic. In this respect,
the Club-K differs from weapons which are of themselves inherently perfidious and unlawful, such as landmines disguised as
innocuous items. To be effective, the Club-K must be married to
other deceptive measures.21
Total War
Since armed forces seldom publicize the deceptive measures
they employ, such acts remain clandestine and thus incapable of
inducing reliance by others.30 One must therefore look to history for concrete state practice. For a weapon like the Club-K to
appear only at the moment it is fired is consistent with the way
that converted merchant vessels and enemy uniforms were used
for deception during World War II, but the context in which such
tactics were employed raises its own legal problems.
Warships require an extensive suite of weapons to engage
and defend against air and seaborne targets, as well as a correspondingly large crew.22 Since the signature hull, superstructure,
marks, lighting, and electronic emissions of a dedicated warship
would deprive the Club-K of deceptive value, the only suitable
23
At sea, both sides employed converted merchant vessels
which literally dropped the façade concealing their armament
moments before opening fire.31 British “Q-ships,” for example,
masqueraded as merchantmen to provoke German submarines
to recklessly attack an apparently vulnerable target. However,
the circumstances of
total war then prevailing call into
question the continued relevance of
such practice.
Therefore, a vessel using the Club-K could not conceal its
true nature up until the moment of launch. Modern law requires
that the disguise be discarded once the intent to attack is formed
and, at any rate, before preparation of the attack. Like many
other rules embodied in Additional Protocol I, this is essentially
a reflection of the
greater protection
now accorded to
civilians and the
world’s rejection of
total war. However,
by effectively requiring a belligerent to
act
perfidiously,
the Club-K would
encourage exactly
this method of
warfare.
Perfidious methods of warfare not only expose
combatants to being treacherously killed or
wounded—they also undermine the longstanding
compromise between belligerent rights of warships
and neutral rights of free navigation.
These tactics were
considered during the
Nuremberg trial, in
which admirals Karl
Doenitz and Erich
Raeder were charged
with waging unrestricted submarine warfare. The International
Military Tribunal (IMT) held that the total integration of Britain’s
merchant navy into the war effort exposed its vessels to attack
because they constituted what would now be termed military
objectives.32 Since Germany conducted hostilities on precisely
that basis, Q-ships could not and did not purport to be protected
against attack—their appearance was designed to invite rather
than discourage attack. Moreover, since they were justified as
a reprisal for unrestricted submarine warfare, they provide no
evidence of opinio juris and hence of customary law.33
The Cordon Sanitaire and Free Navigation
of the High Seas
Perfidious methods of warfare not only expose combatants to
being treacherously killed or wounded—they also undermine the
longstanding compromise between belligerent rights of warships
and neutral rights of free navigation. Naval warfare occurs largely
in the international realm of the high seas, where the practice of
re-flagging allows a belligerent to conceal both its warships and
maritime supply lines.39 Warships may therefore direct belligerent
measures against vessels of actual or ostensible neutrality.40 For
reasons of self-defense, warships may also establish a cordon sanitaire, or exclusion zone, allowing them to pre-emptively attack
approaching vessels.41 The dangers inherent in such prerogatives
are controlled by a regime safeguarding free navigation.42
Battlefield deception was also dealt with in the Skorzeny
Case, so named for the German colonel whose commando wore
Allied uniforms up until the moment of opening fire.34 In this
respect, it should be noted that the case did not concern imitation
of civilians, which directly impinges on the principle of distinction. Nevertheless, the fact that Skorzeny was acquitted because
his stratagem was regarded as lawful by several states does suggest that some deceptive measures could be lawfully employed
as ruses as long as they were discontinued immediately before
firing on an adversary.
Insofar as it corresponds to the point at which approaching
vessels constitute threats whose destruction is militarily advantageous, the cordon is the geographical expression of the principle
of distinction as the boundary of warfare. An excessive cordon,
however, simply leads to indiscriminate attacks. The San Remo
Manual affirms that the declaration of such zones does not abrogate the duty to distinguish between military objectives and other
vessels.43 However, that conclusion was not unanimous among its
framers, and a belligerent anticipating that any merchant vessel
may carry anti-ship missiles is likely to employ particularly drastic
measures in self-defense—to the detriment of enemy and neutral
shipping alike.
Limited War
A significant number of states have since prohibited the use
of enemy uniforms to “favor” or “impede” military operations,
signifying a hardening of attitudes toward such deception even
outside of combat stricto sensu.35 And, of more direct relevance
to the imitation of civilians, Article 44(3) of Additional Protocol
I requires regular forces on land to distinguish themselves
from civilians during military operations preparatory to an
attack—a reflection of the importance now accorded to the
principle of distinction.36
During the First Gulf War, excessive exclusion zones were
repeatedly condemned for facilitating indiscriminate attacks on
neutral vessels.44 In a tragic epilogue, the intervention of neutral
states would later affirm how easily tragedy can result from
misidentification in a high-traffic maritime environment, with
a number of civilian vessels being destroyed after approaching warships.45 As the experience of the World Wars and more
recent conflicts show, methods of war which erase the distinction
between military and civilian vessels lead others—consciously
or not—to reciprocate and are therefore to be denounced.46
With respect to naval warfare, the San Remo Manual states
that the Q-ship may no longer lawfully operate in the context
of limited warfare. Such vessels are said to exemplify the “crucial element” of perfidy—the simulation of protected status
while “an act of hostility is prepared and executed.”37 This
notion—that perfidy includes deception during preparation of
an attack—accords with Additional Protocol I, which refers to
an act of deception done with intent to kill, wound or capture.38
24
Weapons of Deceit and International Law
combatants who physically commit the crime. Just as the horrors
of war are contained by the obligation of combatants to distinguish themselves, they are also controlled by the demand that
combatants operate under responsible command. Indeed, it is the
fact of a command hierarchy culminating in a supreme political
authority that defines warfare as a relation between states.50
Although belligerents may employ ruses, to use a concealed
weapon such as the Club-K to prepare and execute an attack while
feigning civilian status crosses the border from lawful deception
to perfidy—the intentional abuse of legal protection to kill, injure,
or capture an adversary. Only warships enjoy belligerent rights
and are therefore always subject to attack. Merchant vessels are
prohibited from participating in hostilities and are ordinarily subject only to search and seizure. Therefore, for a warship to imitate
such vessels invites others to accord it concomitant protection.
However, the State is not solely responsible for crimes committed by members of its armed forces—it is well-accepted that
military commanders and civilian superiors are responsible for
offences committed on their orders.51 Nonetheless, given the
law’s record of inconsistent enforcement—including against
popular military figures—one might reasonably risk prosecution
for the prospect of military gain. Perfidy was, for example, committed systematically by Iraqi forces in the Third Gulf War.52
Although such measures are permitted when not preparing
or executing an attack, a vessel armed with the Club-K would
most likely ensure its success by acting in a designedly treacherous fashion, feigning civilian status throughout an engagement.
The objects and purposes of IHL dictate that such tactics be
recognized as perfidious, for they would provoke belligerents to
collapse the distinction between military and civilian vessels on
which the very rule of law in naval warfare depends.47
Unlike such individual combatants, a weapon as large and
complex as an anti-ship missile cannot easily be made to look
innocuous. However, having been consciously designed to mimic
civilian objects, the Club-K provides a ready means to attack
while feigning civilian status. Moreover, as discussed in Part I,
successfully deploying the weapon from a merchant vessel, as
envisaged by the manufacturers, appears to depend largely on
resort to perfidy. In that respect, design decisions at the logistical stage can influence military decisions in combat. The best
vehicle for deterrence may, therefore, be the businessperson who
provides the weapon.53 Arguably, if they play a major role in a
chain of events likely to lead to a violation of IHL, they ought to
be criminally responsible,54 but would they be?
This endangers not only vessels and abstract economic interests but also the life and security of civilians on the high seas. The
victims of naval warfare during the World Wars are a sufficient
testament to that fact—one of many that lead states to adopt rules
ending the practice of total war. However, as more recent conflicts
illustrate, those rules are only as strong as the good faith and trust
which a belligerent reposes in adhering to them—trust which perfidy, more than any other violation of IHL, destroys.
Repression of Perfidious Methods of Warfare
Manufacturer’s Liability
Prosecution and Arms Control
International criminal law recognizes many doctrines of
complicity, but this article focuses on aiding and abetting—the
traditional basis for prosecuting providers of means. So as to
avoid compounding a hypothetical situation with hypothetical
or untested law, this article does not consider the prosecution
of juridical persons or complicity under the nascent law of the
Rome Statute of the International Criminal Court (ICC) but
focuses on customary law on aiding and abetting by businesspersons acting through a corporate instrumentality.
If the Club-K is likely to be used perfidiously, this raises the
question of how such acts can be repressed. Alongside explicit
provision in the Rome Statute, perfidy has long been recognized
as a war crime under customary law, opening up criminal prosecution as one remedy.48 However, despite a marked resurgence in the
post-Cold War era, war crimes trials are not free of legal problems.
The example of the Club-K exemplifies one such issue, namely
establishing the responsibility of accomplices. Accomplices frequently play a vital role in facilitating a war crime, in particular
by providing the means for its commission. Targeting both the
principal offender and accomplices therefore multiplies the value
of international law as a deterrent and crime prevention tool.49
However, the mens rea required for criminal guilt under international law on complicity raises difficult questions of proof.
Although arms control law presents an alternative, comprehensive
prohibitions may be politically unachievable. Each avenue theoretically allows international law to be enforced on the battlefield
by pursuing sanctions and criminal liability “behind the lines,” but
both illustrate the difficulty of doing so.
The archetypal case in this context is Zyklon B, in which the
manufacturers of the eponymous toxin were held responsible
for its use in concentration camp gas chambers because they
had actual knowledge of that use. This mens rea requirement—
cognizance that the customer intends to use one’s product to
commit a crime—is broadly reflected in other Allied trials of
German industrialists.55
However, as these trials illustrate, commercial actors present
particular difficulties because they typically undertake “neutral”
actions, providing material assistance, such as money or consumables, which is amenable to legitimate uses. In acquiring
such an item, the customer might not thereby put the seller on
notice of their intent to commit a war crime.
Complicity and Deterrence
For example, at Nuremberg, the IMT held that to be implicated in a conspiracy to wage aggressive war, an accused had
to know of a “concrete plan . . . clearly outlined in its criminal
purpose.”56 Circumstances such as rearmament merely disclosed
Hitler’s militaristic ideology,57 and businessmen who equipped
Command and Supply
When considering prosecution for crimes committed in
combat, attention often falls first on the commander who orders
a military operation due to the control which he exercises over
25
his armies were acquitted of aggression in the IG Farben Case.58
By contrast, the Zyklon B accused knew of both the lethal
properties of their insecticide and its ongoing use in the Nazi
Holocaust, thus proving intent and knowledge sufficient to make
them “concerned in” the commission of war crimes.59
an inquiry into the state of mind of the manufacturers vis-à-vis the
weapon’s future use, bearing in mind that it has a range of possible
applications. Such a definition would merely reframe, rather than
overcome, the issues arising in criminal proceedings.
An alternative is to refer to weapons which outwardly resemble
civilian objects, thus placing the emphasis on an objective characteristic rather than subjective questions and hypothetical situations.
However, such a ban raises vexing policy questions. As discussed
in Part I, the gravamen of perfidy and what distinguishes it from
ruses is the deliberate exploitation of IHL
to attack an adversary. Thus, whether it is
lawful for a warship to feign civilian status depends on whether it is preparing an
attack at the time.
The Club-K poses the same issue as the IG Farben Case, in
that the formation of a concrete plan to use the weapon perfidiously would depend on tactical decisions made by the belligerent after it is supplied. And although the Club-K is marketed as
a weapon of disguise, unlike warships,
military vehicles and installations on land
are not obliged to distinguish themselves,
and therefore the weapon could lawfully
be deployed from an apparently civilian truck or train as a deceptive trap.60
At most, the manufacturers are likely
to be aware that their product might
be used perfidiously at some undefined
point in the future.61 In this respect,
the Club-K stands in contrast to weapons that cannot but be used unlawfully,
the aforementioned booby trap being the
quintessential example.
In safeguarding humanity in
time of armed conflict, then,
there can be no substitute for
inculcating among the armed
forces a culture of respect for
the rule of law, and education
in its precepts.
A prohibition omitting any nexus to
the distinction, which IHL draws between
perfidy and ruse, would therefore tend
to impede the use of legitimate forms of
deception. Although this does not foreclose on any possibility of treaty action,
the prerogative to use deception during
armed conflict has generally been jealously guarded.65 And, as illustrated by the
United States’ refusal to ban landmines
without a geographical exception for the Korean De-Militarized
Zone, states are often reticent to completely forego weapons with some residual military utility, even if it is narrowly
circumscribed.66
This is not to say that the manufacturers will invariably be shielded by the fungibility of their wares.
For example, German steel magnate Friedrich Flick was found to
be complicit in the crimes of the Nazi SS, due to the considerable
sums that he donated to its head, Heinrich Himmler. The fact that
Flick was not aware of the specific activity to which the money
was applied was held to be no defense because the notoriety of
the SS was such as to charge him with knowledge that it would
be criminal.62
Conclusion
The Club-K therefore poses a problematic issue for the law
of naval warfare, both in terms of the limits of its lawful use and
the repression of unlawful use. Since merchant vessels are not
ordinarily exposed to attack, to deliberately exploit their appearance to penetrate a warship’s defenses and attack it amounts
to perfidy. Such conduct endangers the civilian shipping of all
nations and is not only unlawful but deservedly criminal. As past
conflicts illustrate, indiscriminate naval warfare occasions more
than damaged vessels and abstract economic loss—it injures and
kills individuals whose only protection in the international realm
of the high seas is states’ respect for the rule of law.
Flick suggests that the manufacturers could be held responsible
if the use to which the Club-K is put is simply the continuation
of an established record of perfidy, common knowledge of
which bridges the mens rea gap. On the other hand, it would not
readily apply to a peacetime transaction where the possibility
of perfidy is merely latent and the manufacturers, due to their
structural separation from their customer’s armed forces, are
not privy to its plans. It is precisely due to chaotic and brutal
nature of war that the principle of distinction must be respected.
However, ironically, the entrenched separation of the military
and civilian spheres can make it impossible to connect the acts
of military commanders in the wartime context with the acts of
civilian businesspeople who are deliberately excluded from it.
While this opens the door to prosecution of military commanders, the rules of complicity applied by international tribunals are unlikely to net the businesspeople who supply such
arms due to the difficulty of proving that they knew of a plan
to use the weapon perfidiously. Although arms control law may
obviate the need to prove any objective and subjective nexus
between supplying the weapon and using it treacherously, states
are unlikely to eschew its very possession.
Arms Control Law — A De Lege Ferenda?
If a weapon’s manufacturers cannot be made responsible
for its subsequent perfidious use, the remedy may be to
make their conduct the primary locus for legal sanctions, by
prohibiting the development, manufacture, and distribution of
the Club-K and similar arms outright, as has been done with
chemical and biological weapons.63 This course, however, poses
a number of problems.
The example of criminal prosecution, in particular, illustrates
that the separation of the military and civilian spheres that IHL
aims to preserve can impede its own enforcement. Although the
principle of distinction between combatants and civilians must
be upheld, it may be difficult to do so by policing the civilians
who operate on the periphery of armed conflict. In safeguarding
humanity in time of armed conflict, then, there can be no substitute for inculcating among the armed forces a culture of respect
for the rule of law and education in its precepts.
In particular, there is the definition of the banned item. Treaties
typically refer to weapons “designed” to have certain technical
characteristics or effects, such as poisoning.64 Although a treaty
might prohibit weapons designed to facilitate perfidy, this involves
26
Endnotes
1
24
Robert Hewson, Concealed-carriage Klub-K changes cruise
missiles rules, Janes Def. Wkly., Apr. 14, 2010, at 5.
2 Club-K Container Missile System is on a trial [sic], Concern
Morinformsystem-Agat (Aug. 22, 2012), http://www.concern-agat
.com/press-center/press-release/383-club-k-fire; IMDS-2011 ClubK-40 Real, Concern Morinformsystem-Agat (Aug. 30, 2012),
http://www.youtube.com/watch?v=KWsThvJpT8I&list=UUCB5o0o
p5E12aa55Y61nMbA&index=4&feature=plcp.
3 International Institute of Humanitarian Law, San Remo
Manual on International Law Applicable to Armed Conflicts
at Sea 186 §111(a) (1995) [hereinafter San Remo Manual].
4 Jean-Marie Henckaerts & Lousie Doswald-Beck, Customary
International Humanitarian Law 203-205, 221-226 (2009).
5 Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International
Armed Conflicts art. 37, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter
Additional Protocol I].
61 Claude Pilloud et al., Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949, §§ 1500, 1582 (1987); San Remo Manual, supra
note 3, §§ 39–39.2.
71 Pilloud et al., supra 6, at § 1500.
8 Club-K Container Missile System, Concern MorinformsystemAgat (last visited Oct. 11, 2012) http://www.concern-agat.com/
products/defense-products/81-concern-agat/189-club-k.
9 Dieter Fleck, Ruses of War and Prohibition of Perfidy, 13 Mil.
L. & L. War Rev. 269, 288 (1974).
101 Pilloud et al., supra note 6, at §§ 1503, 1506.
11 Military and Paramilitary Activities in and Against Nicaragua
(Nicar. v. U.S.), 1986 I.C.J. 14, at 114–115 (June 27); Legality of
the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J. 226, at 257 (July 8).
12 Additional Protocol I, supra note 5, arts. 48, 51, 52; San Remo
Manual, supra note 3, at §§ 40–41.
13 Hans-Peter Gasser, Protection of the Civilian Population,
in Handbook of International Humanitarian Law 238 § 501.1
(Dieter Fleck ed., 2008).
14 Stefan Oeter, Methods and Means of Combat, in Handbook of
International Humanitarian Law, supra note 13, at 119 § 401.1.
15 Hague Convention VII Relating to the Conversion of Merchant
Ships into Warships, arts. 1–4, 6, Oct. 18, 1907, [1910] UKTS 11.
16 Paris Declaration Respecting Maritime Law, Apr. 16, 1856,
61 U.K. Parl. Papers (H.C. and Cmnd.) 153; Institute of
International Law, Manual of the Laws of Naval War arts. 3-6,
8, 12 (1913).
17 W.J. Fenrick, Legal Aspects of Targeting in the Law of Naval
Warfare, 29 Can. Y.B. Int’l L. 238, 270–275 (1991); San Remo
Manual, supra note 3, §§ 59, 60(f), 60.11–60.14.
181 Pilloud et al., supra note 6, at § 1492.
19 International and Operational Law Department, The Judge
Advocate General’s Legal Center and School, Operational Law
Handbook 25, § 2.XI.C.1 (2011); William H. Ferrell, No Shirt, No
Shoes, No Status: Uniforms, Distinction, and Special Operations
in International Armed Conflict, 178 Mil. L. Rev. 94, 119 (2003).
20 Henckaerts, supra note 4, at R. 65; 1 Pilloud et al., supra note
6, at § 1500.
21 See e.g. 1 Pilloud et al., supra note 6, at §§ 1517–1519.
22 Massimo Annati, Primary Weapon Systems for Naval Platforms,
Mil. Tech., Aug. 2008, at 82.
23 Club-K Container Missile System, Concern MorinformsystemAgat (Apr. 27, 2010), http://www.concern-agat.com/press-center/
press-release/204-pressrelease-club-k.
Roger Villar, Merchant Ships at War: The Falklands
Experience 12–13, 23–27 (1984).
25 Michal Fiszer and Jerzy Gruszczynski, Cruiser and Destroyer
Killers, J. of Electronic Def., Nov. 2011, at 51, 56, 58.
26 Additional Protocol I, supra note 5, art. 37(2).
271 Pilloud et al., supra note 6, at § 1507; cf. Club-K Container
Missile System, supra note 23.
28 U.K. Ministry of Defence, The Joint Service Manual of the Law
of Armed Conflict §§ 13.82, 13.83 (2004) (permitting the ‘disguising
[of] ships to appear to be different’ subject to the prohibition of
perfidious attacks); U.S. Dept. of the Navy Et Al., The Commander’s
Handbook on the Law of Naval Operations §§ 12.3.1, 12.7 (2007).
29 San Remo Manual, supra note 3, at §§ 110–111.
30 Malcolm N. Shaw, International Law 80, 87 (2008).
31 E.g. Memorandum of the German Government in Regard to
Incidents Alleged to have Attended the Destruction of a German
Submarine and its Crew by the British Auxiliary Crusier “Baralong”
on August 19, 1915, and Reply of the British Government Thereto,
10 Am. J. Int’l L. 79 (1916).
32 United States v. Goering (Int’l Mil. Trib., 1946), in 1 Trial of
the Major War Criminals Before the International Military
Tribunal, Nuremberg, 14 November–1 October 1946 311–312,
317 (Secretariat of the IMT ed., 1947) [hereinafter IMT]; See also
San Remo Manual, supra note 3, at § 45.3; Robert W. Tucker, The
Law of War and Neutrality at Sea 62–63, 68–69 (1955).
33 San Remo Manual, supra note 3, at § 60.8; see also George K.
Walker, The Tanker War, 1980–88: Law and Policy 403 (2000).
Contra Christopher Greenwood, The Law of Weaponry at the Start
of the New Millennium, in The Law of Armed Conflict 185, 204
(Michael N. Schmitt & Leslie C. Green eds., 1998).
34 Trial of Otto Skorzeny and Others (Gen. Mil. Govt. Ct., 1947)
(U.S.), in 9 Law Reports of Trials of War Criminals 92–93 (U.N.
War Crimes Comm’n ed., 1947–1949) [hereinafter L.R.T.W.C.].
35 Customary International Humanitarian Law, supra note 4, at 62
36 Cf. Customary International Humanitarian Law, supra note 4, 106.
37 San Remo Manual, supra note 3, at § 111 (emphasis added).
381 Pilloud et al., supra note 6, at §§ 1506–1507.
39 von Heinegg, supra note 13, at 486-87.
40 Hague Convention (XIII) Concerning the Rights and Duties
of Neutral Powers in Naval War, Oct. 18, 1907, 1 Bevans 723;
see generally Michael Bothe, The Law of Neutrality, in Handbook
of International Humanitarian Law 581 (Dieter Fleck ed., 2008).
41 See generally Walker, supra note 33, at 398–410.
42 Hague Convention (XIII) supra note 40; Bothe, supra note 13,
at 571.
43 San Remo Manual, supra note 3, § 106.
44 E.g. S.C. Res. 552, U.N. SCOR, U.N. Doc. S/RES/552
(June 1, 1984); S.C. Res. 582, U.N. SCOR, U.N. Doc. S/RES/582
(Feb. 24, 1986); S.C. Res. 598, U.N. SCOR, U.N. Doc. S/RES/598
(July 20, 1987).
45 Walker, supra note 33, at 413–14.
46 Matthew G. Morris, ‘Hiding Amongst a Crowd’ and the Illegality
of Deceptive Lighting, 54 Naval L. Rev. 235, 255–56 (2007).
47Oeter, supra note 14, at 227-28.
48 Rome Statute of the International Criminal Court art. 8(2)(b)(xi).
8(2)(e)(ix), July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute];
2 Customary International Humanitarian Law, supra note 4, 1447.
492 International Commission of Jurists, Corporate Complicity
& Legal Accountability 12 (2008).
50 Additional Protocol I, supra note 5, art. 43(1); See Ipsen,
Combatants and Non-Combatants, Handbook of International
Humanitarian Law, supra note 13, at 81.
27
51
60Fleck,
Additional Protocol I, supra note 5, arts. 86(2), 87;
Rome Statute, supra note 48, art. 28.
52 Off Target: The Conduct of the War and Civilian Casualties
in Iraq, 1-12 (Human Rights Watch, 2003).
53 Wim Huisman & Elies Van Sliedregt, Rogue Traders: Dutch
Businessmen, International Crimes and Corporate Complicity,
8 J. Int’l Crim. Justice 803, 825–826 (2010).
54 Steffen Wirth, Co-perpetration in the Lubanga Trial Judgment,
10 J. Int’l Crim. Justice 971, 978 (2012).
55 Trial of Bruno Tesch and Two Others, (British Mil. Ct, 1946),
1 L.R.T.W.C., supra note 34, at 93. See also United States v. Flick,
(Mil. Trib. IV, 1947), 6 Trials of War Criminals Before the
Nuernberg Military Tribunals Under Control Council Law No.
10, at 1217 (U.S. Govt. Printing Off. ed. 1951). [hereinafter T.W.C.];
United States v. Krauch, (Mil. Trib. VI, 1948), 8 T.W.C. at 1137,
1141, 1146, 1153; United States v. Krupp, (Mil. Trib. IIIA, 1948),
9 T.W.C. at 1448–49.
56 United States v. Goering, 1 IMT, supra note 32, at 225.
57 Goering, 1 IMT, at 307–309; Kyle Rex Jacobson, Doing
Business With the Devil: The Challenges of Prosecuting Corporate
Officials Whose Business Transactions Facilitate War Crimes and
Crimes Against Humanity, 56 A.F.L. Rev. 167, 175–177 (2005).
58 Krauch, 8 T.W.C., at 1116;
cf. id. at 1169, 1172.
59 Trial of Bruno Tesch, 1 L.R.T.W.C, at 93.
Ruses, supra note 9, at 295-296; Program on
Humanitarian Policy and Conflict Research at Harvard Univ.,
Commentary on the HPCR Manual on International Law
Applicable to Air and Missile Warfare 257 § 116(e)(3) (2010)
available at http://ihlresearch.org/amw/Commentary%20on%20
the%20HPCR%20Manual.pdf.
61 Christoph Burchard, Ancillary and Neutral Business Contributions
to ‘Corporate-Political Core Crime’: Initial Enquiries Concerning
the Rome Statute, 8 J. Int’l Crim. Justice 919, 944 (2010).
62 United States v. Flick, (Mil. Trib. IV, 1947),
6 T.W.C. No. 10 at 1220–21 (U.S. Govt. Printing Off. ed. 1951).
63 Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxic Weapons
and on Their Destruction art. 1, Apr. 10, 1972, 1015 UNTS 163;
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction
art. 1, Sept. 3, 1992, 1974 UNTS 45 [hereinafter Chemical
Weapons Convention].
64 E.g. Chemical Weapons Convention, supra note 63, art. 1(b).
65 See e.g. 1 Pilloud et al., supra note 6, at § 1506.
66 Thomas R. Phillips, No Meeting of the Mines: An Analysis of
the U.S. Policy Regarding the International Ban on Anti-Personnel
Landmines (The Ottawa Convention), 13 Temp. Int’l & Comp. L.J.
25, 44–46 (1996).
28
Panel Explores the Future of Human Rights
Lawyering following the Supreme Court Hearing
in Kiobel v. Royal Dutch Petroleum
by Michelle Flash* and Anna Naimark**
T
he American University Washington College of Law
(WCL) hosted a panel discussion on Kiobel v. Royal
Dutch Petroleum on October 2, 2012, the day after the
United States Supreme Court reheard oral arguments in the case
that will have broad effects for human rights lawyers. Kiobel is
a class action suit brought under the Alien Tort Statute (ATS)
against Royal Dutch Shell Petroleum Co. (Royal Dutch) and
Shell Transport and Trading Co. The plaintiffs allege that the
companies are responsible for aiding and abetting armed forces
in the killing, torture, and cruel, inhumane, and degrading
treatment of a group of Nigerians in the Ogonia region. The
Second Circuit Court of Appeals ruled against the plaintiffs,
finding that corporations could not be held liable under the
ATS. The Supreme Court heard the case on February 28, 2012,
and on March 5, 2012, ordered re-arguments on the question
of extraterritoriality.
during oral arguments, asserting that the Justices were receptive
to the concept of keeping the ATS alive due to the principle
of stare decisis following the Court’s 2004 decision in Sosa v.
Alvarez-Machain. Hoffman and Redford both suggested that the
Court will likely place some constraints on the ATS, such as an
exhaustion of remedies requirement or a limit that would allow
only “natural persons” as defendants. In contrast, both Bellinger
and Grossman argued that the ATS is counter to principles of
international law and should thus be severely limited or even
struck down to protect U.S. foreign relations. Both Bellinger
and Grossman asserted that if the ATS is sustained and used
as a tool of universal jurisdiction, other nations might create a
reciprocal statute and use it to hold U.S. officials accountable for
violations of human rights law. To illustrate this point, Bellinger
posed a hypothetical in which a country could determine that
drone strikes were a violation of the law of nations and therefore
seek to hold Secretary of State Hillary Rodham Clinton liable in
its domestic courts.
The WCL panel was composed of Paul Hoffman, lead
counsel for the plaintiffs; Katie Redford, Co-Founder and U.S.
Office Director of EarthRights International; John Bellinger III,
partner at Arnold & Porter, LLP, and former Legal Advisor to
the U.S. Department of State; and Andrew Grossman, litigator
at BakerHostetler and Legal Fellow at the Heritage Foundation.
Professor Stephen Vladeck, WCL Constitutional Law Scholar
and Associate Dean for Scholarship, moderated. The panelists each presented their views on the oral arguments and then
engaged in a lively discussion on the role of the ATS as a tool
for human rights attorneys.
The debate between the panelists illustrated the diverging
concerns of what the repercussions of the pending Supreme
Court decision may be: Redford and Hoffman expressed concern that the ATS’s availability for foreign victims of alleged
human rights violations in foreign states to seek justice in U.S.
federal courts will cease. Bellinger and Grossman highlighted
that to them, the more important concern is protection of the
foreign relations of the United States from the repercussions of
a statute with extraterritorial reach. If the Supreme Court sides
with the plaintiffs, human rights advocates will undoubtedly
see this case as a huge victory for the enforcement of human
rights law and will seek to use it to promote corporate accountability across the globe in U.S. courts. On the other hand, if the
Supreme Court significantly limits the scope of possible suits or
discards the ATS altogether, human rights advocates would have
one fewer avenue to address serious allegations of human rights
abuses as claimed in Kiobel—an outcome that Hoffman said
would not deter future advocacy. Under the most limiting ruling
in Kiobel, the ATS would still be a cause of action in U.S. courts,
but the courts would only have jurisdiction over lawsuits where
the actions occurred in the United States.
The core question before the Supreme Court was whether
the ATS will survive, and if so, in what form. The Justices in
February 2012 initially considered the more limited question
of whether the ATS applied to corporate defendants, but the
Justices then requested to rehear the case in order to decide the
broader issue of whether federal courts may hear ATS claims
that arise out of conduct in a foreign country. Both Hoffman and
Redford expressed optimism about the content of the questioning
* Michelle Flash, a J.D. candidate at the American University
Washington College of Law, is the Print Publication Editor of
the Human Rights Brief.
Despite the highly disputatious panel discussion, after-panel
informal interviews with Bellinger, Hoffman, and Redford
indicated they had many common reflections concerning the
oral arguments. None of the panelists said that the rehearing
of Kiobel held any surprises. The panelists observed that the
more liberal Justices predictably spoke a lot about Filártiga v.
Peña-Irala, which paved the way for cases with ATS claims, and
** Anna Naimark, a J.D. candidate at the American University
Washington College of Law, is the Social Media Editor of the
Human Rights Brief.
Christina M. Fetterhoff and Matthew Lopas, J.D. candidates at
the American University Washington College of Law and Co-Editorsin-Chief of the Human Rights Brief, contributed to this report.
29
the more conservative Justices focused on concerns about the
extraterritoriality of the statute. Bellinger predicted that the four
liberal Justices would vote to reverse the lower court’s dismissal
of Kiobel, and the four conservatives would vote to affirm, with
Justice Kennedy being the swing vote. Bellinger said, “I am
not quite sure what will happen, but what I can tell you is that
you will see a lot of concurring opinions.” The panelists also
agreed that a total ban on extraterritoriality would likely not happen
and that the rehearing indicated
that the Justices would like to preserve Filártiga. Limits on the ATS,
however, seemed inevitable to the
experts. Similar to their statements
during the panel discussion, all
three predicted that a possible outcome might include an exhaustion
of remedies requirement.
Redford and Hoffman had a different perspective on corporate accountability. Redford said that although the second oral
argument focused on the ATS more broadly, the two separate
oral argument sessions, when viewed as a whole, did address
the issue of corporate accountability. She cited the hypothetical
Justice Breyer put forth that if pirates incorporated their ship
and became “Pirates, Inc.,” they should still be held accountable
for the crime of piracy, mentioned
in Sosa as conduct encompassed
by the ATS, despite being a corporation. If the ATS is overturned,
both Redford and Hoffman said
that human rights lawyers could
bring these cases to state courts, as
in the case of Doe v. Unocal (9th
Cir. 2003), where plaintiffs sought
redress for human rights abuses
associated with the Unocal pipeline project in Burma. The state
court route is an option that even Kathleen Sullivan (counsel for
Royal Dutch Petroleum) conceded during the oral arguments.
Hoffman added that if the Supreme Court invalidates the ATS’s
applicability to corporate defendants, advocates could just sue
corporate officials. He explained that the fabric of international
human rights law is strong, and even if the ATS is narrowed,
human rights lawyers will find a way to hold corporations and
people accountable. Hoffman’s message to aspiring human
rights lawyers was that they are a part of a larger movement
that includes a lot of people; they cannot be successful unless
each piece of the movement—including organizers and policy
advocates—is successful. Bellinger’s message to students mirrored the argument he made during the panel about government
lawyers’ responsibility to serve the United States: he asked that
students remember that human rights lawyers also have clients
and have to serve those clients and those clients’ interests.
“[N]o matter what happens they
can’t stop the movement, the ATS is
only a tool in the greater movement.”
Where the panelists split more was on the significance of
Kiobel and the ATS in a broader sense. Redford said she sees
Kiobel as being held out as an example for the types of human
rights cases that should be brought and noted that the Filártiga
cases rightly called the ATS a “beacon of hope.” Hoffman added:
“[N]o matter what happens to the ATS, they can’t stop the movement. The ATS is only a tool in the greater movement.” Bellinger
expressed his view that the extraterritoriality of the ATS itself
is a violation of international law. Regarding accountability,
Bellinger argued that advocates should look to the nationality
principle, which recognizes that a state can adopt laws that govern the conduct of its nationals abroad. Where the nationality
principle is not decisive, such as with corporate accountability,
he argued that advocates should focus on strengthening the
United Nations Guiding Principles on Business and Human
Rights and the Organisation for Economic Co-operation and
Development guidelines to pressure countries to police corporations incorporated or operating inside their borders.
30
The 146th Period of Sessions of the Inter-American
Commission on Human Rights
Strengthening Process of the
Inter-American System of Human
Rights: OAS Member States
The 146th Period of Sessions of the
Inter-American Commission on Human
Rights (IACHR, Commission) began
October 30, 2012, with special hearings
about the strengthening of the InterAmerican System of Human Rights (IAS).
During the morning, IACHR Commissioners
invited comments and questions from
Organization of American States (OAS)
Member State representatives. Commission
President José de Jesús Orozco Henríquez
began by thanking everyone for attending
and gave an overview of the work done on
the strengthening of the IAS to date, including the various forums, working groups,
and recommendations. He noted that during the preceding months the Commission
had received many recommendations regarding the individual petition system, precautionary measures, monitoring and promotion
responsibilities, and maintenance of transparency and autonomy. Many of the Member
States’ representatives who spoke reiterated
the importance of these topics.
Overall, the main concerns of the OAS
governments with regard to the future
of the IAS, and specifically the IACHR,
had to do with finding the appropriate balance between preserving the Commission’s
independence while at the same time
adequately funding it. The comments
of Canada’s representation, which were
echoed by many of the other Member
States, noted that the promotion and protection of human rights in the region
is a key priority and that the IACHR
plays a key role in the endeavor. However,
as Mexico’s representation observed, the
Commission cannot adequately carry out
its mandate given the lack of resources
and tremendous backlog of cases. Instead
of each State going into specific detail
about responses to the Commission’s 199point reply to the Permanent Council of
the OAS’s Report of the Special Working
Group to Reflect on the Workings of the
IACHR with a View to Strengthening the
Inter-American Human Rights System, the
States’ representatives made reference to
Juan Manuel Herrera/OAS
documents they would be turning in to the
Commission detailing their responses.
Ecuador’s representative noted that
the State was particularly concerned with
improving parallel mechanisms and methodologies among the States to ensure,
protect, and promote human rights. Many
States argued that the way to improve
mechanisms is through increased open dialogue between States and the Commission,
as well as with civil society organizations. States mentioned rapporteurships, in
particular the Special Rapporteurship on
Freedom of Expression, and precautionary
measures as key tools for improving human
rights compliance. Argentina, in particular, focused on the need to strengthen
compliance with precautionary measures. However some participants, such
as Brazil’s representatives, said they felt
strongly that the Commission should follow the Inter-American Court’s procedure
and defer to the Court’s judgment if it has
chosen not to issue provisional measures.
It is likely the processes and mechanisms
of precautionary measures are an issue that
States will continue to debate.
Not all of the comments reflected
a positive view of the Commission.
Jamaica expressed concern that only one
Commissioner is from a Commonwealth
31
Caribbean country and emphasized that
there needs to be an increase in representation. Many other States also emphasized
the need for a standard form of reporting
among the rapporteurships and a better
adherence to the principle of universality
in the annual report by not singling out
particular States. Particularly regarding the
Commission’s reporting on human rights
developments in the region in Chapter
IV of its Annual Reports, Venezuela and
Nicaragua argued that individual States
should not be singled out. Venezuela in
particular expressed that its views and
concerns had been, and continue to be,
overlooked by the Commission and as a
result reiterated its denouncement of the
Commission. Additionally, States argued
for more openness and transparency in the
reporting process, requesting that reports
be submitted to them before publication.
Despite the criticism, States generally embraced the work and report of the
Commission and proposed positive changes
that could help the Commission in its work.
Mexico focused on implementing new technologies and document identification to
help the Commission avoid the backlog
of cases. Additionally, nearly every State
accepted and called for increased funding
for rapporteurships, which were recognized
as a key tool for preventing human rights
that should not require the Commission
to have to ask for donations. Also, Brazil
proposed a new rapporteurship to focus on
working toward universal ratification of the
American Convention on Human Rights
and consent by all OAS Member States to
the jurisdiction of the Inter-American Court
of Human Rights.
In conclusion, Commission President
Orozco Henríquez thanked the States
for their comments and participation in
the meeting. He noted with approval that
the increased backlog in petitions at the
Commission is due not to an increase in
human rights violations but to an increase in
awareness of the work of the IACHR and of
human rights in general. He further thanked
the States for their awareness of the budgetary constraints facing the Commission
and encouraged them to work to continue
to increase funding. Henríquez expressed
optimism for the future of the Commission
and the hope that these Strengthening
Hearings would lead to improvements in the
Commission’s mechanisms and increased
human rights standards across the board.
As Ambassador Andrés González Díaz of
Colombia said, “Human rights mean little
if there are no procedures to protect them.”
As part of a series of hearings and other
reform efforts, the October hearing is just
one step in the efforts to meet the goals of
the Commission and the Member States.
In the interest of brevity, most participants’ names have been omitted. For a list
of current IACHR Commissioners, as well
as current Ambassadors and Permanent
Representative to the Organization of
American States, please visit: http://www.
oas.org/en/iachr/default.asp.
Christina M. Fetterhoff and Michelle
Flash covered this hearing for the Human
Rights Brief.
Strengthening Process of the
Inter-American System of Human
Rights: Civil Society of the
Americas
Dozens of representatives from civil
society organizations across the Western
Hemisphere spoke at a special session
of the Inter-American Commission on
Human Rights (IACHR, Commission) on
the Strengthening Process of the InterAmerican System of Human Rights
on October 31, 2012. They focused on
goals and priorities during considerations to reform the System. Civil society
groups framed the Inter-American System,
consisting of the Commission and the
Inter-American Court of Human Rights
(IACtHR, Court), as a place of last
resort—somewhere to go when domestic
institutions were unwilling or unable to
help the victims of human rights violations. In six hours of testimony following
a morning session of presentations by the
Organization of American States’ Member
States, the representatives brought a variety
of perspectives but focused mainly on the
role of the System as a place to promote
a culture of peace and justice for victims throughout the hemisphere, and the
IACHR as a body to help preserve dignity,
defend rights, and strengthen democracy.
The speakers frequently mentioned
the need for a victim-centered approach
when implementing reform or strengthening measures during the afternoon session.
They explained that reforms of such an
important institution should be the clear
result of a public debate that is inclusive
of victims and their families. Such considerations should begin with the discussions
taking place and continue through the
measures that are adopted, said Viviana
Krsticevic, Executive Director of the
Center for Justice and International Law
(CEJIL). Krsticevic noted what she called
a lack of transparency in the strengthening process and said that CEJIL proposed
adding victim input to issues such as the
process by which cases are brought to
the IACtHR. Many speakers touched on
similar themes, including María Victoria
Fallon from the Interdisciplinary Group for
Human Rights (GIDH). Fallon suggested
a revision of Article 48 of the American
Convention on Human Rights, which sets
out the procedural requirements for submitting complaints to the IACHR, to make
it more accessible for victims.
Gisela Ortiz Perea, a family member
of a victim of La Cantuta massacre in
Peru and representative from the Peruvian
Forensic Anthropology Team (EPAF),
provided an emotional highlight of
the afternoon and garnered a round of
applause from the audience. In an impassioned statement, she said, “We ourselves
should have a voice, because at the end of
the reforms, those that are either harmed
or benefited are the victims.” She said
that the victims had not been listened to or
even asked for input. If asked, she said the
victims would stress the problems with a
lack of enforcement, and that as a “voice
32
of the victims and the family” who want to
live with dignity, “we are sick and tired of
being beggars for our rights.”
The focus on including the affected
individuals was frequently tied to the
important role that the System’s methods
of protection have played in the lives of
individuals in Member States, including
precautionary measures and the rapporteurships. An example of the primacy
of the Commission in people’s lives was
in Argentina’s emergence from dictatorship, according to Horacio Verbitsky of
the Center for Legal and Social Studies
(CELS). He stressed that a report by the
Commission was the beginning of the end
of impunity and that the System has been a
real instrument of change in Argentina and
throughout the hemisphere. Civil society
groups noted the importance of defining
the criteria for choosing precautionary measures—rapid-response orders the IACHR
issues to ensure that no irreversible steps
are taken before the Commission decides
the merits of the case—as well as the
need to ensure flexibility in procedures and
proceedings so they are effective. The representatives spoke of the ways the measures
prevent victims from being invisible and
highlighted the value of the measures for
journalists, human rights defenders, and
vulnerable groups. María José Veramendi,
of the Interamerican Association for
Environmental Defense (AIDA), also cautioned that with regard to environmental
degradation, it may be impossible to identify individual victims and therefore, more
flexibility would be required. On the issue
of rapporteurs, Moisés Sánchez of the Pro
Access Foundation noted that autonomy
of the rapporteurs was crucial in light of
the historical abuses from the States, and
that the Commission’s efforts to improve
access to public information had been a
key element in the increased government
transparency in Chile. To achieve any
of these important measures, many speakers stressed that additional funding was
necessary to ensure that all bodies under
the Commission remain autonomous.
A unifying factor that was either
expressly stated or implicit in nearly all
the speakers’ statements was the need to
focus on strengthening, not weakening
the Inter-American System. Civil society
members, frustrated by some suggestions
of Member States during the morning hearings, warned the Commissioners against
considering the concerns of the States
above the needs of victims. As civil society representatives, the speakers said it
was their duty to put the victims first.
Gustavo Gallón Giraldo of the Colombian
Commission of Jurists pointed to the stark
contrast between the different framings of
the reform of the Inter-American System
by the States and the Commission. While
the Commission refers to the process as
one of “strengthening,” many others in the
OAS refer to it as one of “reform,” which
could imply a weakening of the IACHR.
Camilo Sánchez León of the Center for
the Study of Law, Justice, and Society
(DeJusticia) voiced a similar concern and
said that the Commission should apply a
test to each of the proposals to see if it
actually strengthens the System, which
includes a look at both its technical capabilities as well as whether it increases the
power afforded to protection of human
rights. Similarly, speakers emphasized the
importance of State participation in the
Inter-American System. Many speakers
alluded to the idea that if strengthening
was done in earnest and with the right
intent, it would require that all states be
members and signatories to the human
rights instruments in the System—including the American Convention. In addition
to weakening reform, it was noted that
when States withdraw, as Venezuela has
begun the process of doing, it could create
a domino effect that harms the System.
Throughout the hearing, the Comm­
issioners mostly played the role of listeners
and did not respond to individual speakers.
However, Commission President José de
Jesús Orozco Henríquez concluded the
hearing by stressing the importance of
civil society participation and indicated
that their proposals will be assessed. He
thanked the civil society groups, especially
for their mention of victim inclusion, and
affirmed the Commission’s commitment
to victims as well. Additionally, Orozco
Henríquez added that the System was the
patrimony of the people of the Americas.
Matthew Lopas, Anna Naimark, and
Marie Soueid covered this hearing for the
Human Rights Brief.
El 146° Período de Sesiones de la Comisión
Interamericana de Derechos Humanos
Proceso de Fortalecimiento
del Sistema Interamericano de
Derechos Humanos: Estados
Miembros de la OEA
El 146° Período de Sesiones de la
Comisión Interamericana de Derechos
Humanos (CIDH, Comisión) comenzó
el 30 de octubre de 2012 con audiencias especiales sobre el proceso de fortalecimiento del Sistema Interamericano
de Derechos Humanos (SIDH). Por la
mañana, los Comisionados de la CIDH
recibieron comentarios y preguntas de los
representantes de los Estados Miembros
de la Organización de Estados Americanos
(OEA). El Presidente de la Comisión, José
de Jesús Orozco Henríquez, comenzó agradeciendo a todos por asistir y presentó un
resumen de las labores realizadas hasta
ahora durante el proceso de fortalecimiento
del SIDH, incluyendo la realizada por diversos foros, grupos de trabajo y recomendaciones. Señaló que durante los meses
anteriores la Comisión recibió muchas
recomendaciones con respecto al sistema
de peticiones individuales, las medidas
cautelares, las responsabilidades de monitoreo y promoción y el mantenimiento de
transparencia y autonomía. Muchos de los
representantes de los Estados Miembros
reiteraron la importancia de estos temas.
Las preocupaciones principales de los
gobiernos sobre el futuro del SIDH, y
específicamente la CIDH, se centraron en
el establecimiento del equilibrio adecuado
entre la preservación de la independencia de
la Comisión y la financiación adecuada. El
representante de Canadá expresó la importancia de la promoción y protección de los
derechos humanos en la región, señalando
la importancia de que se vuelva un tema
prioritario y mencionó el papel clave que la
CIDH juega en esta área. Muchos Estados
Miembros compartieron dichas declaraciones. Sin embargo, la representación de
México expresó que la Comisión no puede
llevar a cabo su mandato adecuadamente
dado la falta de recursos y el atraso tremendo de casos. Respecto a la respuesta de
199 puntos de la Comisión al Informe del
Grupo de Trabajo Especial de Reflexión del
Consejo Permanente de la OEA, los representantes de los Estados sólo hicieron referencias generales a sus respuestas que serán
entregadas en documentos a la Comisión.
El representante del Ecuador expresó
la importancia que su gobierno le daba
al mejoramiento de los mecanismos y
metodologías de los Estados con el fin de
asegurar, proteger y promover los derechos
humanos. Muchos Estados declararon que
la manera de mejorar los mecanismos es
promoviendo un diálogo abierto entre los
Estados y la Comisión, así como las organizaciones de la sociedad civil. Los Estados
reconocieron que las relatorías, en particular
33
la Relatoría Especial para la Libertad de
Expresión, y las medidas cautelares son
herramientas claves para el mejoramiento
de conformidad con derechos humanos.
Argentina, en particular, señaló la necesidad
de fortalecer las medidas cautelares. Sin
embargo, algunos participantes, como los
representantes del Brasil, comentaron que
estaban convencidos de que la Comisión
debe seguir el procedimiento de la Corte
Interamericana y diferir a la opinión de la
Corte en caso de que haya decidido no dar
medidas provisionales. Es probable que el
proceso y los mecanismos de las medidas
cautelares sea un asunto que seguirá en
debate.
No todos los comentarios reflejaron una
visión positiva de la Comisión. Jamaica
expresó su preocupación respecto a que
solamente haya una Comisionada de un país
del Commonwealth del Caribe y enfatizó
que es necesario aumentar la representación
de aquellos países. Muchos otros Estados
también enfatizaron la necesidad de establecer un formulario estándar de presentación
de informes para las relatorías y una mejor
adherencia al principio de universalidad en
el informe anual por no singularizar Estados.
En particular, Venezuela y Nicaragua se
refirieron al Capítulo IV referente a los
Informes Anuales de la Comisión sobre
el desarrollo de los derechos humanos en
la región, argumentado que no se debe
singularizar Estados. Venezuela expresó
que sus puntos de vista y preocupaciones
han sido, y siguiendo siendo, ignorados
por la Comisión y reiteró su denuncia de
la Comisión. Además, los Estados pidieron
más franqueza y transparencia en el proceso
de informes, solicitando que la Comisión les
entregue los informes antes de publicarlos.
A pesar de las críticas, los Estados
dieron la bienvenida al trabajo y al informe
de la Comisión en general y propusieron
cambios positivos que podrían ayudar la
Comisión en su trabajo. México enfocó sus
propuestas en la implementación de nuevas tecnologías e identificación de documentos para ayudar la Comisión evitar el
atraso de casos. Además, casi todos los
Estados aceptaron la necesidad de aumentar el financiamiento para las relatorías,
aceptando que son herramientas claves en
la prevención de violaciones de derechos
humanos, indicando que la Comisión no
debería tener que pedir donaciones para
ellas. Por su parte, Brasil propuso crear una
nueva relatoría enfocada en la ratificación
universal de la Convención Americana de
Derechos Humanos y el consentimiento
de todos los Estados Miembros de la OEA
a la jurisdicción contenciosa de la Corte
Interamericana de Derechos Humanos.
Para concluir, el Presidente Orozco
Henríquez agradeció a los Estados por sus
comentarios y participación en la reunión.
Notó con aprobación que el aumento en
atraso de peticiones en la Comisión no
es debido un aumento de violaciones
de derechos humanos, pero debido un
aumento en el conocimiento del trabajo
de la CIDH y de los derechos humanos en general. Además agradeció a los
Estados por su conocimiento de las limitaciones presupuestarias ante la Comisión
y los animó a aumentar el financiamiento.
Orozco Henríquez expresó su optimismo
por el futuro de la Comisión y la esperanza
de que las Audiencias sobre el proceso de
fortalecimiento mejoraran los mecanismos
de la Comisión y estándares de derechos
humanos en general. Como dijo el
Embajador Colombianos Andrés González
Díaz, “De poco sirven los derechos humanos si no hay procesos de protegerlos.”
Como parte de un conjunto de esfuerzos,
en los que se incluye una serie de audiencias, la audiencia de octubre sirve sólo
como un paso para llegar a las metas de la
Comisión y de los Estados Miembros.
En aras de la brevedad, se han omitido
los nombres de la mayoría de los participantes. Para una lista actual de los
Comisionados de la CIDH y de Embajadores
y Representantes Permanentes ante la
Organización de Estados Americanos, visite http://www.oas.org/es/cidh.
El Human Rights Brief agradece a
Isabel Erreguerena por su colaboración en
la traducción de este resumen.
Proceso de Fortalecimiento
Sistema Interamericano de
Derechos Humanos: Sociedad Civil
de las Américas
del
Decenas de representantes de organizaciones de la sociedad civil de todo el
Hemisferio Occidental hablaron en una sesión especial de la Comisión Interamericana
de Derechos Humanos (CIDH, Comisión)
sobre el Proceso de Fortalecimiento del
Sistema Interamericano de Derechos
Humanos el 31 de octubre del 2012. Se
enfocaron en los objetivos y las prioridades durante el estudio de la reforma del
Sistema. Grupos de la sociedad civil vieron
el Sistema Interamericano, integrado por
la Comisión y la Corte Interamericana de
Derechos Humanos (Corte IDH), como un
lugar de último recurso en caso de que las
instituciones de un país no estén dispuestos
o no puedan ayudar a las víctimas de violaciones de derechos humanos. Durante seis
horas de testimonios después de una sesión
matutina de presentaciones por parte de los
Estados miembros de la Organización de
los Estados Americanos, los representantes
ofrecieron una variedad de perspectivas,
pero se centraron principalmente en el papel
del Sistema y de la CIDH como un lugar
para promover una cultura de paz y justicia
para las víctimas de todo el hemisferio, y
como organismo que ayuda a preservar la
dignidad, a defender los derechos y a fortalecer la democracia.
Una cuestión que fue mencionada frecuentemente durante la sesión de la tarde
fue la necesidad de tener un enfoque centrado en las víctimas al aplicar las medidas
de reforma o fortalecimiento. Los representantes explicaron que las reformas de
una institución de tanta importancia deben
nacer claramente de un debate público
que incluya a las víctimas y sus familias.
Viviana Krsticevic, Directora Ejecutiva
del Centro por la Justicia y el Derecho
Internacional (CEJIL), explicó que estas
consideraciones deben comenzar con las
34
discusiones que se llevan a cabo y deben
continuar con las medidas que se adopten,
agregando también que hay una falta de
transparencia en el proceso de fortalecimiento. Krsticevic explicó que CEJIL propuso tomar en cuenta el aporte de víctimas
para las medidas propuestas incluyendo la
forma en que se toman las decisiones para
llevar los casos a la Corte IDH. Muchos
oradores se refirieron a temas similares,
incluyendo María Victoria Fallón del
Grupo Interdisciplinario por los Derechos
Humanos. Fallón sugiere una revisión del
artículo 48 de la Convención Americana
sobre Derechos Humanos, que establece los
requisitos de procedimiento para la presentación de denuncias ante la CIDH, para que
sea más accesible para las víctimas.
Gisela Ortiz Perea, un miembro de
familia de una persona desaparecida en el
Perú y representante del Equipo Peruano
de Antropología Forense y Familias de la
Víctimas de La Cantuta, ofreció un momento
emotivo en la tarde y recibió un aplauso de
la audiencia. En una declaración apasionada,
dijo en español: “Nosotros mismos deberíamos tener una voz, porque al final de las
reformas, los que están perjudicados o beneficiados son las víctimas.” Dijo además que
las víctimas no habían sido escuchadas y ni
siquiera les pidieron su opinión. Perea añadió
que las víctimas subrayarían los problemas
con la falta de ejecución y que al ser “la voz
de las víctimas y las familias” que quieren
vivir con dignidad, “estamos cansados de
rogar por nuestros derechos.”
El enfoque en la inclusión de las personas afectadas fue atada con frecuencia a
la importante función que los métodos del
Sistema de protección han desempeñado
en la vida de las personas en los Estados
miembros, incluyendo las medidas cautelares y las relatorías. Un ejemplo de la
primacía de la Comisión en la vida de las
personas se vio en la salida de la dictadura
en Argentina, según Horacio Verbitsky, del
Centro de Estudios Legales y Sociales.
Resaltó en que el informe de la Comisión
fue el principio del fin de la impunidad y
que el Sistema ha sido un verdadero instrumento de cambio en la Argentina y en todo
el hemisferio. Grupos de la sociedad civil
señalaron la importancia de definir los
criterios para la elección de las medidas
cautelares incluyendo las órdenes de reacción rápida a los problemas de la CIDH
para garantizar que no se tomen medidas
irreversibles antes de que la Comisión
esté decida sobre los méritos del caso, así
como la necesidad de garantizar la flexibilidad en los procedimientos para que
sean eficaces. Los representantes hablaron
sobre las medidas de prevención para que
las víctimas no sean invisibles y relevaron
el valor de las medidas para periodistas,
defensores de derechos humanos y grupos
vulnerables. María José Veramendi, de
la Sociedad Americana para la Defensa
del Medio Ambiente, también advirtió
en contra de la individualización de las
medidas cautelares en relación al medio
ambiente. Señaló que con respecto a la
degradación del medio ambiente, puede
ser imposible identificar a las víctimas y,
por lo tanto, una mayor flexibilidad sería
necesaria. En cuanto al tema de los relatores, el papel que la Comisión ha tenido
en los Estados fue destacado por Moisés
Sánchez de la Fundación Chilena para el
Acceso, quien señaló que la autonomía de
los ponentes fue esencial para dar a luz los
abusos históricos de los estados, y que los
esfuerzos de la Comisión para dar acceso
a la información pública había sido un
elemento clave en el aumento de la transparencia del gobierno Chileno. Para lograr
las medidas, muchos oradores subrayaron
que la financiación adicional sería necesaria para garantizar que todos los órganos
de la Comisión sigan siendo autónomos.
Un factor unificador que fue subrayada
de manera expresa o implícita en casi todas
las declaraciones de los oradores de la
sociedad civil fue la necesidad de centrarse
en fortalecer, y no debilitar, el sistema
interamericano. Miembros de la sociedad
civil, frustrados por algunas sugerencias
de los Estados Miembros durante las audiencias de la mañana, les advirtieron a
los miembros de la Comisión en contra
de la consideración de preocupaciones
de los Estados sobre las necesidades de
los individuos. Como representantes de
la sociedad, los oradores relataron que
hay un deber de poner a las víctimas en
primer lugar. Gustavo Gallón Giraldo de la
Comisión Colombiana de Juristas señaló el
contraste entre los diferentes encuadres de
la reforma del Sistema Interamericano de
los Estados y la Comisión. La Comisión
ve el proceso como un “fortalecimiento,”
mientras otros en la OEA se refieren al
proceso como una “reforma,” lo que podría
implicar un debilitamiento de la CIDH.
Camilo Sánchez, del Centro de Estudios de
Derecho, Justicia y Sociedad, habló sobre
una preocupación similar y expresó que
la Comisión debería aplicar una prueba a
cada una de las propuestas para ver si en
realidad fortalece el sistema, evaluaría la
capacidad técnica del sistema, y verificaría que aumenta la potencia concedida
a la protección de los derechos humanos. Los oradores recalcaron la importancia de la participación del Estado en
el Sistema Interamericano. Muchos oradores se refirieron a la idea de que si se
hace fortalecimiento y con la intención
35
adecuada, sería necesario que todos los
Estados sean miembros y signatarios de
los instrumentos de derechos humanos
en el sistema, incluida la Convención
Americana. Además de la reforma debilitada, se observó que cuando los Estados
se retiran, como Venezuela que ha iniciado
el proceso, podría crear un efecto dominó
que dañe el sistema.
Durante la audiencia, la mayoría de
los miembros de la Comisión tomaron
el papel de oyentes y no respondieron a
los oradores individuales. Sin embargo,
el presidente de la Comisión, José de
Jesús Orozco Henríquez, respondió al final
a las declaraciones haciendo énfasis a
la importancia de la participación de la
sociedad civil e indicó que las propuestas
serían evaluadas. Orozco Henríquez dio
las gracias a los grupos de la sociedad
civil, sobre todo por la recomendación
de la inclusión de víctimas y afirmó el
compromiso de la Comisiones hacia víctimas. Orozco Henríquez añadió que el
sistema era patrimonio de los pueblos
de las Américas.
La lista de todos los participantes y
sus organizaciones ha sido omitida. Para
obtener una lista completa de todos los participantes, visite http://www.oas.org/es/cidh
El Human Rights Brief agradece a
Alexandra Arango por su colaboración en
la traducción de este resumen.
REgions
Americas
Race to The Top: Brazil’s Racial
Quotas for Higher Education
In a groundbreaking decision, the
Supreme Federal Tribunal of Brazil,
Brazil’s highest court, unanimously ruled
that the race quotas used in public universities are constitutional. The Tribunal
issued its decision in April following a
hotly contested debate that challenged
the Brazilian ideal of “racial democracy.”
With this ruling, Brazilian lawmakers have
ushered in affirmative action laws aimed
at combating discrimination and educating
the historically marginalized Afro-Brazilian
population. Proponents view this expansive
move as the foundation for the possibility
to broaden opportunities for minorities
in Brazil.
The ruling arose from Ação do DEM
vs. cotas da UNB e no Brasil (Action of
Brazil’s Democratic Party v. Quotas of the
UNB and in Brazil), the case brought by
Democratas (Brazil’s Democratic Party
(DEM)) against the Universidade de
Brasilia (University of Brasilia (UNB)),
which reserves twenty percent of its enrollment spots for Afro-Brazilian, mixed-race,
and indigenous students. The DEM argued
that the policy was unconstitutional under
Article 5 of the Brazilian Constitution,
which protects equality for all citizens
regardless of race. The Tribunal rejected
DEM’s claim, finding the quotas to be the
best method to remedy racial inequalities
that were never confronted after the abolition of slavery in 1888. The Tribunal held
that racial quotas are the best transitory
option to close the inequality gap in higher
education. This gap is a major issue, as
a majority of Afro-Brazilians continue
to live in favelas and earn a fraction of
the salaries enjoyed by the predominately
Caucasian upper class.
On August 29, 2012, President Dilma
Rouseff signed the Lei de Cotas (Law of
Social Quotas). This law gives all federal
universities four years to ensure that half
of their incoming class comes from public
schools. The spots reserved for marginalized students will be in accordance to
the percentage of the minority population
in the state where each public university
is located.
Proponents of the university policy hail
the legal victory as one of the many steps
needed to ensure that the marginalized
populations, particularly Afro-Brazilians,
gain access to adequate education and
advanced job placement. Afro-Brazilians
constitute around seventy percent of those
that live below the poverty line and only
2.2% have access to higher education. Much
of the Afro-Brazilian population remains in
the lower echelons of the socio-economic
sectors of the country and receive poor
education in public primary schools.
Opponents of racial quotas view the
policy as a racial remedy for a socioeconomic issue. Critics believe that categorizing the population by race will
create a fractionalization of Brazilians
along racial lines and could result in officializing racial discrimination. Some see
the quotas as reverse racism that directly
violates the Brazilian Constitution by
favoring Afro-Brazilian students in the
highly competitive selection process for
public universities, while others view the
racial quotas as an imported solution from
the United States that is incompatible with
Brazilian race relations. These opponents
maintain a staunch ideal of “racial democracy,” or the idea that Brazil’s racial classes
were never clearly defined.
With the ruling of the Supreme Tribunal
of Brazil and the subsequent Law of Social
Quotas, Brazil has taken fundamental steps
to adhere to its obligations under the 1960
United Nations Educational, Scientific
and Cultural Organization (UNESCO)
Convention against Discrimination in
Education (Convention). Brazil’s policy
is in accordance with Article 1, Sections
(a) and (b) of the Convention, which
call on States to eliminate educational
discrimination that deprives citizens
of access to higher education. By implementing a national policy that promotes
more equality in educational opportunities,
Brazil has pursued an effective method of
reform that is recommended in Article 4 of
the Convention.
36
In accordance with its obligations under
Article 1, Section 4 of the Convention on
the Elimination of All Forms of Racial
Discrimination (CERD), Brazil has a
responsibility to secure the advancement of
a racial group that may require protection
to ensure a fundamental human right. The
CERD protects Brazil’s reforms because
once the intended goals are achieved, they
will not favor Afro-Brazilians as critics of
the policy suggest. These measures can
also be incorporated in social, educational
and economic fields so that all marginalized populations can enjoy equal access to
a fundamental human right.
Race will not be the primary factor in
determining access to higher education
but rather a factor taken into consideration, which complies with Article 13,
Section 2(c) of the International Covenant
on Economic, Social, and Cultural Rights
(ICESCR). Brazil’s policy enables universities to serve the most vulnerable groups
without discrimination. Rather than maintaining a status quo that harmed a massive
segment of its population, Brazil’s policy
provides widespread access to the human
right of education, which is required under
the Covenant.
These efforts to expand higher education
for marginalized Brazilians coincide with
Brazil’s international obligations. The race
quota policy legitimately protects human
rights afforded to all citizens, and will
be crucial in ensuring Brazil’s continued
growth as a global power.
Beg Their Pardon: Fujimori’s
Possible Pardon
Former Peruvian President Alberto
Fujimori’s 25-year prison sentence for
severe human rights violations may be
coming to a premature end as current
President Ollanta Humala contemplates
granting the Fujimori family’s petition
for a humanitarian pardon on behalf of the
ex-president due to his health status.
During his time in office from 1990
to 2000, Fujimori was lauded by some
for his economic reforms and anti-terrorist stance that eventually crippled the
“Shining Path,” a domestic terrorist organization. However, the Fujimori administration was also notorious for corruption,
bribery, and human rights violations that
ultimately led to the President’s imprisonment in 2009. The Peruvian population is
divided between those who remember the
former leader as moving the economy forward and eradicating domestic terrorism,
and those who remember his authoritative
rule that led to a self-imposed coup d’état,
kidnapping, murders, and other human
rights violations. On October 10, 2012,
Fujimori’s family formally requested a
humanitarian pardon to President Ollanta
Humala. The family cited tongue cancer
and other health issues as a humanitarian
justification for his release. The Peruvian
Constitution grants the President the power
to pardon and to reduce a prison sentence
if the prisoner has a terminal illness. A
panel of medical examiners assesses the
prisoner and informs the president of its
recommendation, but the president makes
the final decision.
citizens in the Western Hemisphere and
is crucial in establishing the framework
created domestically to determine the violations for which President Fujimori was
convicted. The UN Human Rights Council,
the Inter-American Court of Human Rights
(IACtHR), and other international bodies of
which Peru is a member have expressly condemned pardons for those who committed
grave human rights violations. In GutiérrezSoler v. Colombia (2005), the IACtHR
declared that “the State shall refrain from
resorting to amnesty, pardon, and statute of
limitations, and from enacting provisions to
exclude liability, as well as measures aimed
at preventing criminal prosecution or at voiding the effects of a conviction.” Similarly, in
the Barrios Altos case of 2001, the Court
overturned Peru’s amnesty laws protecting
all civilians and members of the State’s
security forces who had been “accused,
investigated, prosecuted or convicted, or
who were carrying out prison sentences, for
human rights violations” associated with the
Barrios Altos massacre.
Despite this constitutional power, many
Peruvian politicians have pointed to Law
26478 as an argument against the pardon.
This law denies pardon of anyone found
guilty of aggravated kidnapping, a crime
for which Fujimori was convicted. Other
politicians have remained open to the
possibility of a pardon if doctors, after
their thorough investigation, confirm that
Fujimori’s illness is terminal. A recent
poll has shown that seventy percent of
the Peruvian public supports a move to
house arrest or a pardon for the former
president. While some senators and other
allies of Fujimori continue to advocate
for his release on medical grounds, Dr.
Juan Postigo of the Instituto Nacional
de Enfermedades Neoplásicas (National
Cancer Institute) recently issued a statement declaring that Fujimori’s treatments
have been ongoing for twelve years and he
remains in stable condition.
If the medical examiners determine that
Fujimori’s cancer is terminal, President
Humala faces the difficult task of reconciling the powers given to him by the Peruvian
Constitution to pardon a criminal due to
terminal illness with the international legal
restrictions that prohibit a pardon for violators of human rights in nearly all instances.
Reducing the prison sentence for a violator
of human rights for reasons outside of the
“humanitarian” sphere would have deep
implications for the relationship between
Peru and the Inter-American Court, whose
decisions are binding on the country. For
now, the decision rests solely with President
Humala and while some remain optimistic
of a pardon, the domestic and international legal parameters are leaning toward
President Alberto Fujimori completing his
prison sentence.
The Peruvian Constitution acknowledges that a pardon must comply with the
international treaties that Peru has ratified.
Human Rights Watch has pointed out that
Peru’s duty to prosecute violators of human
rights cannot be undermined by amnesties,
pardons, and other domestic provisions
that grant immunity for these crimes.
Peru has ratified the American
Convention on Human Rights, which is
dedicated to protecting the rights of all
Ernesto Alvarado, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
U.S. Voter Suppression May
Threaten Internationally
Protected Right to Vote
The right to participate in the political
process of government and have one’s voice
heard is fundamental to the authenticity of
any democracy. The U.S. Constitution prohibits voting discrimination based on race,
37
sex, and age in the Fifteenth, Nineteenth, and
Twenty-sixth Amendments, respectively, to
guarantee equal protection of the right to
vote. However, the U.S. Constitution does
not enumerate an affirmative right to vote.
Nonetheless, several international treaties
protect the universality of the right to vote
and prevent voter disenfranchisement of
minorities. The United States is a signatory to the International Covenant on Civil
and Political Rights, and the International
Convention on the Elimination of All Forms
of Racial Discrimination, both of which
protect the right to universal and equal suffrage, enumerated in Article Twenty-One,
Article Twenty-Five, and Article Five of the
documents, respectively.
Historically, U.S. laws and policies disenfranchised groups for the purpose of
voter suppression. African Americans and
other racial minorities, women, and convicted felons have struggled to realize their
right to vote. In the Jim Crow era, literacy
and poll tax laws discriminated against
African Americans. Poll tax laws required
citizens to pay a fee to participate in the
election, which disenfranchised African
Americans and poor white farmers in the
South.
With the passage of the 1965 Voting
Rights Act (VRA), most voting qualifications beyond citizenship were eliminated,
including literacy tests and poll taxes that
created barriers for African Americans to
cast their ballot. The VRA guarantees that
no person shall be denied the right to vote
based on race or color. In 1975, the VRA
expanded protections to other minorities
that face discrimination based on ethnicity or national origin. In Section Five of
the VRA, certain jurisdictions with segregationist histories are required to obtain
preclearance from the U.S. Department of
Justice for any changes to election laws,
ensuring that minorities are not disenfranchised by discriminatory state and local laws.
Despite the aforementioned protections, there is a current resurgence of voter
suppression in U.S. laws. Since 2008, a
number of states have passed restrictive
voting laws that will suppress the voter
turnout of minorities. Measures to restrict
votes include the following: requiring
government-issued photo identification,
reducing voting hours, placing restrictions
on early or absentee voting, limiting voter
registration drives, and gerrymandering
districts. In 2011 alone, at least thirty-four
states introduced legislation that would
create new voter identification requirements or strengthen existing requirements.
Seventeen legislatures introduced strict
photo identification bills, eleven of which
became state laws. Jurisdictions not specified under the VRA successfully passed
these laws without being blocked by the
U.S. Department of Justice, regardless
of their equally discriminatory effect on
minority voters. Sixteen states have also
either adopted or are currently pursuing
citizenship-based purges of their voter rolls,
which may disenfranchise eligible Latino
voters. As the 2012 elections approached,
many courts reviewed challenges to these
laws to determine whether there was enough
time to ensure access to newly required
forms of identification before Election Day,
or whether the implementation of the laws
should be delayed until 2013.
By creating hurdles to the right to vote
through inaccessibility and unaffordability,
the voter ID laws will likely disproportionately impact African Americans, Latinos,
and other minorities; seniors; working
low-income persons; the disabled; and
students. Attorney General Eric Holder
compared Voter ID laws to a poll tax,
imposing barriers for the already disadvantaged. According to the Brennan Center for
Justice at the New York University School
of Law, approximately eleven percent of
adult citizens—more than twenty-one million people—lack a valid, governmentissued identification as required by some
Voter ID laws. Twenty-five percent of
African Americans do not possess a valid
photo ID as well as nineteen percent of
Latinos, compared to only eight percent
of Whites. The new requirements make it
difficult for eligible voters to exercise their
human and constitutional right by demanding documents, such as birth certificates
that people do not have, or requiring trips
to departments of motor vehicles that are
nearly impossible for some.
Under the U.S. government’s international responsibilities to human rights,
the government is obligated to continue to
investigate and prevent any laws that will
discriminate against minorities regardless
of whether a jurisdiction is subject to
Section Five of the VRA. In accordance
with the U.S. Constitution, the government is required to implement protective measures for minority voters to prevent discrimination. The right to vote is
beyond partisanship; it is fundamental to
the survival of a democracy that equally
protects all eligible voters’ rights.
Indigenous Community
Challenges Educational
Disparities in Guerrero
Vast disparities in access to education
persist across Mexico, impeding the full
realization of every child’s right to quality education guaranteed by the Mexican
Constitution and the Convention on the
Rights of the Child (CRC). Indigenous
peoples are among the most disadvantaged and their rights are systematically
violated. Consequently, indigenous children are often excluded from the Mexican
education system or are unable to access
quality education. Indigenous communities generally live in difficult-to-reach
rural areas, which ultimately affects their
access to education and other basic services. According to the United Nations
Children’s Fund (UNICEF), twenty-six
percent of indigenous people aged fifteen
or older are illiterate, compared to the
national average of nearly seven percent.
Specifically, members of the Me’phaa
Indigenous Community of Buena Vista
in the state of Guerrero experience severe
impediments to realizing their right to
education. According to the Tlachinollan
Center for Human Rights of the Montaña
(Tlachinollan), a leading human rights
organization in Mexico, the illiteracy rate
of the indigenous population in Guerrero
is forty-one percent, even higher than
the national average for indigenous communities. Furthermore, estimates from
Tlachinollan indicate that the average
years of completed schooling among
Community members fifteen and older
is less than four years, compared to the
national average of nearly nine years.
Children of the Buena Vista Community
between the ages of three and six years
old must walk more than six kilometers
per day in rugged terrain to a neighboring
community to attend preschool. Over the
past ten years, the Buena Vista Community
has submitted multiple requests to the
Ministry of Education of Guerrero for the
development of a preschool center in their
own community, but the government has
repeatedly ignored these requests.
Article 3 of the Mexican Constitution
guarantees individuals basic compulsory education consisting of preschool,
primary, and secondary education through
38
ninth grade. Furthermore, Mexico is a
State Party to the CRC, which provides
for the right to education in Articles 28
and 29. Under its international human
rights obligations, the State is responsible
for guaranteeing all children free, quality
primary education. Additionally, the State
is required to ensure minorities the right to
engage in their own educational practices
as well as to adopt measures to protect the
education of marginalized and minority
groups. Accordingly, in indigenous communities such as Buena Vista, the government is obligated to take additional steps
to ensure accessibility to quality education.
Under Mexican law, an aggrieved person may initiate a legal process known as
a juicio de amparo if individual guarantees
provided in the Mexican Constitution have
been violated. To file a writ of amparo,
the alleged injured party must demonstrate that a public official is responsible
for the injury, the injury infringes upon a
constitutional right, and the injury is not
irreparable. In 2011, the Mexican government enacted constitutional reforms to the
amparo system expanding protection to
rights not only afforded in the Constitution
but also those enshrined in international
human rights treaties to which Mexico is
a State Party. Thus, the Mexican government’s domestication of international law
further enforces its responsibility to prevent,
investigate, punish, and remedy any human
rights violation. To demand their constitutional right to education, members of the
Buena Vista Community recently filed a
writ of amparo based on the omissions of
the educational authorities of Guerrero. The
amparo addresses the key issues of nondiscrimination and physical accessibility for
the members of the community.
Despite recommendations from the
United Nations, civil society organizations, and requests from the local community, the State is consistently falling
short of its citizen’s educational needs, particularly those located in the mountainous
rural region of Guerrero. During his country visit to Mexico in 2010, the UN Special
Rapporteur on Education, Vernor Muñoz,
found that “exclusion from opportunities
of education in Mexico has a very specific group of victims, a situation which
can be summed up in a single sentence:
poor people receive poor education.” The
government’s violation of the right to education in poor and marginalized communities further exacerbates existing disparities
faced by the communities and hampers
necessary development. The amparo lawsuit will challenge the recent constitutional
reforms in protecting marginalized communities’ access to social rights that have
been systematically violated. Under its
Constitution, the Mexican government is
responsible for ensuring that indigenous
communities have equal access to education
compared with the rest of the population and
for reducing the educational gap prevalent
throughout the country.
Diana Damschroder, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
Asia and Oceania
Cotton Picking in Uzbekistan:
A Child Labor Industry
Every September, state-run institutions
in Uzbekistan lock their doors and display the words Hamma pahtada, Uzbek
for “Everybody’s gone cotton-picking.” As
the world’s third-largest exporter of raw
cotton, Uzbekistan’s cotton exports generate $1 billion in annual revenue. From
September to November, the entire country
is immersed in what has been described as
“cotton hysteria.” The harvesting process,
however, institutionalizes a tradition of
forced child labor. The Uzbek government
has not only failed to comply with the
minimum standards of international law, it
has also continued to promote child labor
to ensure that rising harvesting quotas are
met. As a member of the International
Labor Organization (ILO), the government
of Uzbekistan is legally obliged to bring
harvesting practices in line with international standards and could strengthen its
compliance with international child labor
laws by allowing the ILO and the United
Nations Children’s Fund (UNICEF) to
monitor future harvests.
During harvest season, rural schools
are closed and students are sent directly
to the fields, where they are forced to
work thirteen-hour days. Harvesting under
police guard, children as young as nine
are forced to collect thirty to fifty pounds
of cotton a day. Thousands of children
between the ages of fifteen and eighteen are loaded onto buses and taken to
the fields, where their teachers are held
personally responsible for ensuring that
quotas are met. Students who refuse to
participate are beaten or expelled; teachers who refuse to comply are fired. Young
adults enrolling in Uzbek universities
are required to sign pledges promising
to participate in the harvest. Each year,
the Uzbek government denies the ILO’s
requests to monitor the harvest, and officials in the Uzbek Prosecutor General’s
Office have rejected complaints filed by
human rights organizations.
As a member of the ILO since July 13,
1992, Uzbekistan is required by Article
19 of the ILO Constitution to comply
with annual reports and recommendations.
In 2009, the ILO requested information
about labor policies and measures that
have been taken to implement Uzbekistan’s
legal obligations via international conventions. A year later, the ILO’s Committee
on Application of Standards requested to
have an ILO supervisory board monitor the
harvest. Uzbekistan has not complied with
either request.
In addition to an obligation to comply
with general ILO requests, Uzbekistan has
also availed itself to the Minimum Age
Convention (C183) and the Worst Forms
of Child Labour Convention (C182). C183
requires the minimum employment age
to be higher than the age of completion
of compulsory schooling but no less than
fifteen years. Children as young as nine are
required to participate in the cotton harvest
in Uzbekistan. Further, the convention sets
the minimum age for any employment that
poses a risk to health or safety at eighteen
years, and children between the ages of
thirteen and fifteen may only be permitted to obtain employment that does not
negatively affect their attendance at school.
By closing rural schools and requiring
children to harvest cotton, Uzbekistan is
failing to comply with these provisions.
C182 expressly prohibits any form of
forced or compulsory labor for children
under the age of eighteen. Every Member
State is bound, as a matter of top priority,
to implement programs to eliminate the
worst forms of child labor. Uzbekistan has
failed to comply with its obligations by
requiring children between the ages of nine
and seventeen to participate in the harvest.
The Uzbek government is also bound
by the recommendations of UNICEF and
its commitments to the Convention on the
Rights of the Child (CRC). Uzbekistan
acceded to the CRC on June 29, 1994,
thereby agreeing that no governing body
39
would act in a way contrary to the best
interests of children. States Parties are
specifically obliged to protect children
from economic exploitation and hazardous
work conditions. Uzbekistan has failed to
uphold these standards by forcing children to work in dangerous conditions.
According to the annual Human Rights
Watch report, children working during the
harvest are more susceptible to illness due
to unsanitary working conditions, exhaustion, hunger, and the heat.
Uzbekistan is legally obligated to bring
its harvesting policies in line with international standards dictated by the ILO and
UNICEF. To ensure that harvesting policies
are in compliance with international law, the
Uzbek government must grant the ILO and
UNICEF access to monitor future harvests.
Until Uzbekistan begins to comply with its
international obligations, Uzbek children
will continue to be deprived of education,
freedom, and childhood.
Alyssa Antoniskis, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
Chinese Drug Detentions
Facilities Receive Criticism
Despite Reform Efforts
Despite internal reforms in drug treatment facilities in the most drug-impacted
regions of China, human rights groups
continue to highlight complaints by detainees that facilities contravene international
agreements and Chinese law by subjecting
detainees to inhumane treatment and limiting access to judicial process. Until 2008,
drug rehabilitation in China occurred in
detention facilities called re-education
through labor (RTL) centers. RTL centers,
though required to administer medical
treatment for drug dependency, were frequently criticized by watchdog groups for
subjecting detainees to inhumane conditions including sexual abuse and forced
labor. In 2008, the Anti-Drug Law took
effect. The new law includes provisions
that address criticisms of the previous
system “in accordance with the humancentered principle,” while defining addicts
as patients and victims and guaranteeing
drug treatment. Multiple sources claim
that so far, the law has not had the desired
impact. Human Rights Watch issued a
report in 2008 citing numerous detainees
who criticized the new law, noting that it
expands police power, increases minimum
sentencing to two years, and provides
no mechanisms for protecting the human
rights it claims to defend.
According to reports from media
outlets and human rights organizations,
compulsory drug detention centers continue to force detainees to work, deny
access to medical care, and provide no
access to judicial process. These conditions would put the government in breach
of both domestic and international law.
The Chinese constitution guarantees the
right to medical care for the ill (Article
45), requires oversight for arrests (Article
37), and guarantees public trial with the
opportunity for defense (Article 125).
The new Anti-Drug Law stipulates that
drug users sent to compulsory treatment
facilities must be detained in accordance
with the constitution (Article 50, AntiDrug Law). The International Covenant
on Economic, Social and Cultural Rights
(ICESCR), ratified by China in 2001, protects safe working conditions (Article 7)
and the right to physical and mental health,
including treatment of disease (Article 12).
The United Nations Economic and Social
Council elaborated on these articles, obligating States Parties to recognize the right
to health of all people, including prisoners and detainees. States are bound to
make acceptable health care accessible
to all, “especially the most vulnerable or
marginalized.”
The Anti-Drug Law prohibits unpaid
forced labor and physical abuse in Articles
43 and 69, yet Human Rights Watch reports
that violations continue, perpetuated by the
severe lack of oversight. The report cites
former detainees, who reported they were
forced to work eighteen-hour days and
were subjected to electrocution, beatings,
and other inhumane and degrading treatment. The New York Times reported the
story of one inmate, who said that life in
these compulsory rehabilitation centers “is
an unremitting gauntlet of physical abuse
and forced labor without any drug treatment.” The inmate’s comments indicate
the most striking of the alleged violations:
Though the new measures are done under
the guise of rehabilitation, neither medical nor therapeutic rehabilitation actually
occur in many of the centers.
Though medical and therapeutic care
is the purported intent of these facilities,
many reportedly operate without sufficient
medical staff and supplies. Because of
this, many users in detention facilities face
withdrawal without the help of medication.
This leads to relapse within the clinics,
where unsterile conditions, specifically
the sharing of used needles, exacerbate the
already staggering problem of HIV/AIDS
within the detention centers. Many centers,
however, provide no medical care to persons with HIV/AIDS and often do not even
inform inmates when they test positive.
Access to antiretroviral drugs is routinely
denied, even if the detainee was using the
medication prior to incarceration. These
policies suggest a conflict with China’s obligations under Article 12 of the ICESCR,
which requires respect for citizens’ rights to
mental and physical health, as well as “[t]he
creation of conditions which would assure
to all medical service and medical attention
in the event of sickness.”
Despite efforts at reform, the Chinese
government continues to receive criticism
for its handling of inmates. In October
2011, after several reported deaths in these
centers, the Chinese government issued
a regulation that affirmed the illegality
of forced labor and restricted the conditions under which detainees could work.
However, a May 2012 study by Human
Rights Watch found that the regulation did
not have the necessary impact on inmates.
Human rights observers continue to call
for the closure of compulsory drug rehabilitation centers in favor of a system where
human rights abuses are vigilantly prevented. Such an effort would give China
an opportunity to demonstrate its commitment to the ICESCR. Instead, many
reforms continue to create systems where
safeguards afforded by both domestic and
international law are absent.
Agricultural Reform in North
Korea: The Uncertain Prospect
of Economic Growth and Improved
Access to Food
Though news outlets recently brought
attention to a North Korean policy shift in
favor of agricultural reform, human rights
groups have since criticized the nation’s
leadership for the persistence of state-run
economic policies that function at the
expense of the welfare of its citizens. Such
criticisms of economic management in
North Korea draw attention to the large
number of citizens who live in deep poverty and lack food security. Estimates,
40
though varying, suggest that deaths from
starvation or malnutrition in the late 1990s
numbered between 900,000 and 3.4 million people. The World Food Programme
categorizes roughly 7.2 million, or thirtyseven percent of the total population, as
chronically poor. Severe weather and famine exacerbate the problems of malnutrition and starvation, while insufficient pay
for farmers raises concerns that a lack
of motivation prohibits production and
adds to the State’s trouble with generating
adequate food.
Following the death of Supreme Leader
Kim Jong-Il in 2011, and the ascent of
Kim Jong-Un, some saw an opportunity
for economic development. The Daily NK,
a South Korea-based pro-democracy newspaper that covers North Korea, reported
that on June 28, 2012, Kim Jong-Un
announced an agricultural-reform strategy,
dubbed the 6.28 Policy, which has since
gone into effect in 3 out of 144 counties.
In the rest of the country, which is under
the existing Public Distribution System,
the government expropriates all output for
redistribution. The 6.28 Policy, however,
allows farmers who meet their quotas keep
a higher percentage of their yield and bring
that yield to market. The government’s
goal is to motivate farmers to produce
more without abandoning a state-centered
agricultural system. Such reforms could, in
theory, create a boon to the North Korean
public at large as increasing food production and allowing farmers to sell some
crops on the open market could improve
overall access to food.
The agriculture reforms are relevant to
North Korea’s adherence to its treaty obligations under the International Covenant
on Economic, Social, and Cultural Rights
(ICESCR), which obligates states to recognize the right to free pursuit of economic development (Article 1) and provide working conditions that include fair
pay and allow for a decent living standard.
Historically, regardless of North Korea’s
ratification of the treaty, farmers have been
forced to sell all crops to the state at a low
price, after which the government distributes the crops.
The effect on the food markets also
implicates both domestic and international
obligations. The North Korean constitution provides that the state is responsible
for affording workers with conditions for
obtaining food. Article 25 of North Korea’s
constitution asserts the need to continually
promote and improve material wealth in
an effort to promote well-being. Under the
ICESCR, Article 11 obligates States Parties
to recognize rights to standards of living,
particularly protection of the right to be
free from hunger. However, despite these
legal frameworks, conditions of starvation
and malnutrition continue to burden North
Koreans. Further, chronically low levels of
production are exacerbated by economic
policies, including low compensation for
farmers and over-production of land. The
situation has not gone unnoticed. In a 2010
Resolution, the UN General Assembly
expressed its concerns that violations of
economic, social, and cultural rights have
led to “severe malnutrition.” The following year, the UN Human Rights Council
(UNHRC) reaffirmed this concern, particularly vis-à-vis other national spending
priorities, specifically the government’s
prioritizing of military capabilities over
the needs of its citizens. Of the gross
national income, estimated at $25 billion,
up to a third goes to military spending.
The standing military consists of 1.2 million people, making it one of the largest in
the world. The UNHRC, the United States
government, and human rights groups have
criticized this military-first strategy for its
misallocation of resources, and for leaving
many citizens suffering.
Although the agricultural reforms do
not indicate an interest by North Korea to
change its priorities, they do present an
opportunity to make some improvements
toward guaranteeing the rights and protections under international and domestic
laws. It is too early, however, to determine
whether these prospects will pan out and,
thus far, the application has been inconclusive. Outlets such as the Daily NK have
criticized the program for maintaining
state-run strategies that focus on targeted
production and agricultural collectives.
Detractors believe the 6.28 Policy will be
largely ineffective at remedying issues of
food security. Instead, experts urge reprioritization of North Korea’s expenditures,
shifting focus away from military spending and instead investing in the needs of
the people.
Gabriel Auteri, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Indonesia’s Aceh Province Adopts
Sharia Law in Conflict with
Human Rights Standards
their marriage and separate, warning the
couple that the punishment according to
Islam was beheading.
Under Sharia law in the predominantly
Islamic province of Aceh in Indonesia,
adulterers face death by stoning—punishment that is dictated by the Qu’ran.
Starting in 1999—when Islamic law was
implemented in the province—Aceh began
punishing those who breached Sharia law
by acts that include adultery, homosexuality, gambling, consuming alcohol, and
disobeying rules on attire. The nature of
these punishments, which range from fines
to the death penalty, conflict with both
national and international human rights
standards by impinging on the basic freedoms of all humans and imposing cruel
and inhumane treatment.
Aceh’s Sharia law, as it stands, conflicts with the Indonesian Constitution, the
1999 legislation on human rights enacted
by the Indonesian government, and the
United Nations Convention against Torture
and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT). The
Indonesian Constitution holds greater
weight than provincial laws, and therefore
must be followed in Aceh before the local
Sharia law. Article 28G of the Constitution
states the right of every person to be protected from the “threat of fear to do or
not do something that is a human right.”
Furthermore, Aceh’s corporal punishment
under Sharia law breaks with Article 28G
of the Constitution, which states that every
person has the right to be free from “inhumane or degrading treatment” and Article
28I, which propounds the freedom of religion and freedom from discriminatory
treatment. The 1999 Indonesian human
rights legislation established the right to
security and the freedom from degrading
punishment, the right to justice and due
process, and the right to freedom of the
individual and the right to freedom of religion. As a member of the United Nations,
Indonesia ratified the CAT in 1998, which
echoes the same freedoms enshrined in
the Indonesian Constitution and the 1999
human rights legislation, necessitating
freedom from cruel, inhuman, or degrading punishment. Human Rights Watch and
Amnesty International described the practices of caning and stoning as cruel punishment inconsistent with the principles of
human rights established through international law, and thus Indonesia’s laws.
Aceh is the only province in Indonesia
that fully employs Sharia, and, as such,
Acehnese people are largely considered to
be the most pious followers of Islam in the
country. After Aceh’s numerous struggles to
assert its Islamic identity through rebellions
for independence, Aceh sought to unify and
appease its citizens in 1999 by codifying
Islamic law in the provincial legislation.
Sharia is the moral and religious code
of Islam. It mandates the way all Muslims
should live, as derived from the Qu’ran
and the Prophet Muhammad. Aceh originally implemented Sharia law to promote egalitarianism, but, according to an
International Crisis Group report, due to
abuse and misuse of the laws, Aceh’s
Islamic laws have encroached upon the
Acehnese people’s human rights. In 2009,
Aceh’s legislature passed a law penalizing
adultery between two married individuals,
which, according to a 2010 Human Rights
Watch report, carried the most stringent
punishment—death by stoning. Authorities
punish unmarried individuals with up to
100 lashes by cane for engaging privately
with someone of the opposite sex. These
Seclusion Laws allow the wiyatuyal hisbah
(Aceh’s Islamic police) to seriously reprimand, through fines and corporal punishment, any two unmarried people of the
opposite sex found alone together, disregarding evidence of physical contact.
Although there is no clause in the text
of the Sharia law that specifically outlaws
gay marriage, the Aceh province has held
harsh punishment for homosexuality. The
BBC reported that the wiyatuyal hisbah
forced a married lesbian couple to annul
41
The conservative local community in
Aceh has made matters worse by pressuring the wiyatuyal hisbah to apply its own
punitive measures that extend beyond the
scope of the Sharia law, even in cases of
minor violations. Moreover, community
members are often the first to discipline
those who have violated Sharia law using
their own form of condemnation.
The community represses any discussion to repeal or amend the laws. Officials
and citizens fear backlash from more conservative community members for speaking out against the ill effects, abuse, and
misuse of the laws. Aside from entirely
repealing the law, if Aceh begins discussing
the law, it could move to a less literal interpretation, as some countries have adopted,
by limiting the wiyatuyal hisbah’s role
and power, while simultaneously ensuring
due process for those accused of violating Sharia law. Yet, without a discussion
underway, the province of Aceh will continue to violate domestic and international
standards of human rights.
However, Bangladesh reserved its right to
apply Articles 1 and 2 of the Convention
concerning the issue of child marriage “in
accordance with the Personal Laws of different religious communities of the country.” Allowing personal laws of religious
communities to supersede international
law sustains the practice of child marriage
in Bangladesh.
The Bangladeshi Practice of Child
Marriage Continues to Disregard
Domestic Law and UN Conventions
Adherence to these principles can be
complicated in Bangladesh, where many
villagers believe that marriage protects
a girl’s chastity and is a divine command from God. As explained by Farah D.
Chowdhury, a political science professor
in Bangladesh, in a 2004 article in the
International Journal of Social Welfare,
all females are obligated to become wives
and raise a family and the sooner they are
married, the sooner the obligation is fulfilled. Additionally, the marriage of young,
submissive, and obedient girls maintains
the status quo of a patriarchal society. The
older an unmarried girl becomes, the more
her family will be shamed in the community. Beyond the religious and cultural
influences, there is an economic advantage
to child marriage. Girls are often considered a burden to families because of their
financial dependence. Once a girl has
been married, her husband’s family must
provide for her, thus liberating her parents
of their financial duty. When a family
is impoverished, there is consequently a
greater desire to marry off daughters at a
younger age. Further, the parents lessen
the financial strain of their daughters’
dowry since the younger the girl’s age at
marriage, the smaller the dowry can be.
Bangladesh outlawed child marriage in
1929. Yet, according to the United Nations
Children’s Fund (UNICEF), sixty-six percent of girls in Bangladesh are married
before they reach the age of eighteen.
Bangladeshi communities that continue to
practice the tradition of child marriage are
not only violating Bangladeshi law, but are
also violating United Nations conventions
on Consent to Marriage and the Elimination
of All Forms of Discrimination Against
Women (CEDAW), to which Bangladesh
has acceded, and the UN Convention on
the Rights of the Child (CRC), which
Bangladesh has ratified. The practice of
child marriage is rooted in social tradition and economic need, but it has adverse
effects on the health and education of girls.
According to a report by the International
Center for Research on Women, child
brides are prone to suffer domestic violence and abandon school, and as a result
of early pregnancy are susceptible to health
complications. When the Bangladesh government developed legislation that led
to the Child Marriage Restraint Act of
1929, it considered various socio-cultural
factors—such as poverty and societal values—that drive parents to marry off their
young daughters. The law criminalizes
marriages when either party is a minor,
classified as girls under eighteen and boys
under twenty-one, and penalizes those
who permit or aid such a marriage, including parents, through a fine and up to one
month's imprisonment.
Bangladesh’s laws on the issue are
encompassed by its obligations, including
CEDAW, which the State ratified in 1984
and prohibits child marriage in Article
16(2). In 1998, Bangladesh acceded to
the Convention on Consent to Marriage,
which calls for the “full and free consent” of both parties in all legally binding
marriages in Article 1. Article 2 requires
states to set a minimum age for marriage.
Although young daughters’ families
might benefit from the arranged marriages, the effect on the child brides can
be severe. Many young brides have not
fully developed reproductively and are
at great risk for maternal mortality and
miscarriage. Marriage also limits a girl’s
possibility of schooling or further education. This is in direct violation of the right
to education provided by Article 28 of the
CRC. A young girl’s submissiveness and
obedience also makes her more vulnerable
to domestic violence and abuse in her husband’s home.
Despite the many laws that child
marriage in Bangladesh continues to
violate, Bangladesh has done little to
enforce the laws and protect children’s
rights. Fortunately the government does
42
plan to register all marriages and births,
which would provide greater oversight.
However, Bangladesh’s reservation to the
Convention on Consent to Marriage indicates the country is not ready to confront
the differing practices based on religious
communities. Embracing the whole of
the convention both by dismissing the
reservation and implementing procedures
to enforce all obligations would broaden
protection for the Bangladeshi people.
Regardless of the existence of legislation
to combat the tradition of child marriage
in Bangladesh, insufficient enforcement of
the laws will preserve the practice of child
marriage to the detriment of young girls in
the country.
Anusree Garg, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Water Scarcity in Central Asia
May Lead to Conflict
Water scarcity is a looming problem
throughout the world, particularly affecting developing nations such as the Central
Asian states. Approximately 884 million
people do not have access to safe drinking
water. In Central Asia, obtaining an equitable division of the region’s major rivers,
the Amu Darya and the Syr Darya, is a disputed issue that may lead to armed conflict.
Tajikistan and Kyrgyzstan, the countries
that control the rivers, both have plans
to build hydroelectric dams, which will
give them substantial influence over water
resources in the region to the potential detriment of Uzbekistan and Kazakhstan. With
increasing water scarcity in Central Asia
and the vacuum left by a lack of binding
international law, the dam plans will make
achieving the seventh UN Millennium
Development Goal (MDG), ensuring widespread access to clean water, and realizing
the objective of UN Resolution 64/292 on
the right to water, increasingly difficult and
may send the region into armed conflict.
The effects of such a conflict could be
devastating, leading to the contravention
of the Convention on the Rights of the
Child (CRC) and the Convention on the
Elimination of All Forms of Discrimination
Against Women (CEDAW).
Historically, the Central Asian states
developed a standard for water and electricity exchange due to stringent Soviet
resource-allocation policies. In 1992, after
the fall of the Soviet Union, the newly
independent Central Asian states signed
the Almaty Agreement, maintaining the
Soviet allocation of water, which favored
Kazakhstan and Uzbekistan. Under the
agreement, Tajikistan and Kyrgyzstan do
not have enough water for their planned
development activities and are desperately
in need of the dam projects.
Because the right to water is not a
self-standing right in international human
rights law, dam projects by Tajikistan and
Kyrgyzstan would not necessarily be in
direct contravention to binding international obligations. The proposed dam projects will provide Tajikistan and Kyrgyzstan
with urgently needed power. Despite this,
Uzbek and Kazakh leadership oppose the
dam projects, arguing that the projects
will disrupt water supplies in the two
countries, negatively affecting their agricultural exports and economies, and damaging the environment. If Tajikistan and
Kyrgyzstan move forward with their dam
projects, achieving the seventh MDG to
halve the proportion of the population
without sustainable access to safe drinking water and basic sanitation by 2015
will be nearly impossible. It will also
challenge the goals set out in UN General
Assembly Resolution 64/292, promising
“to provide safe, clean, accessible and
affordable drinking water and sanitation
for all.” Though Tajikistan and Kyrgyzstan
both agreed to the MDGs and voted for the
General Assembly resolution, these declarations are not legally binding.
Despite the lack of binding international guarantees for the right to water,
Tajikistan and Kyrgyzstan may reconsider
moving forward with their dam projects
because of the threat of war. Uzbekistan’s
president, Islam Karimov, stated that the
dam projects could lead to war because of
water’s importance to Uzbekistan’s agricultural exports, which make up a large
percentage of the country’s foreign earnings. Water conflicts, or “water wars,”
occur when a country controls the water
resources of another, water-scarce, country
and uses water as leverage. Human rights
laws guaranteeing the right to water are not
strong enough to adequately deter countries that may consider engaging in water
wars; however, the humanitarian effects
of water wars may trigger international
legal obligations. Women and children
in Central Asia are particularly in danger
from water scarcity issues because much
of the agricultural work falls on them.
They are often responsible for transporting
water to the home; thus, with increased
water scarcity they will be spending much
more time and energy transporting water.
Additionally, there is clear gender inequality regarding access to water, with rural
women facing critical problems in this
area. Despite the lack of binding international law on the right to water, by instating
policies that will exacerbate water scarcity
and lead to war, the Central Asian states
are ignoring Article 14 of CEDAW and
Article 24 of the CRC, which specifically
protect the rights of women and children
and their access to water resources.
The countries of Central Asia are victims
of a post-Soviet lack of a coordinated management system, but these actions could
likely hamper the goals set out in human
rights declarations. Without stronger human
rights laws governing access to water, the
region is highly susceptible to water wars,
certain countries and minorities are disproportionately affected, and water scarcity
will get exponentially worse due to climate
change and mismanagement of resources.
Emily Singer Hurvitz, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
Europe
Russian Olympic Preparation
Displaces Nearby Residents
Russia’s preparations for the 2014
Winter Olympics in Sochi have elicited
concern from nearby residents and human
rights advocates that the rights of private landowners are being compromised in
preparation for the Games. While residents
have actively protested and petitioned
against appropriation of land for major
Olympic infrastructure projects, a Human
Rights Watch report from September 2012
presented significant evidence that the
Russian government continues to forcibly expropriate private property without
providing adequate compensation for displaced residents. Furthermore, those who
remain in Sochi contend that they live
with fears that noise pollution and emissions from the construction of a large-scale
power plant being built near the residential
area to strengthen infrastructure for the
43
Olympic Games will threaten their health
and create an unsafe living environment.
Russia’s complicated history of transitioning from public to private land ownership has contributed to the confusion
surrounding these expropriations. During
the 1990s, the Russian government privatized and distributed land following the
collapse of the Soviet Union. This distribution process was often informal, and
did not always include official ownership
documents. Additionally, contradictions in
land registries often resulted in multiple
claims to a property. A Human Rights
Watch report notes that, due to deed registration issues, many Russians living in
Sochi could not prove ownership of their
land and have consequently lost property
without compensation.
Dmitry Chernyshenko, President of the
Russian Olympics Organizing Committee,
said that confusion over Soviet-era housing
assignments has caused difficulty with the
relocation of some citizens, but responded
to criticism by stating that some relocated
residents experienced significant improvement in their housing. The government’s
claims, however, are inconsistent with
many reports from monitoring organizations, which have found that property valuations do not take into account residents’
improvements and are less than tax assessments. When residents refused to sign
relocation agreements, a Human Rights
Watch letter to the International Olympic
Committee (IOC) from December 2010
found that authorities threatened to take
property without consent and open bank
accounts in residents’ names to deposit
compensation money.
The Russian government’s expropriations present possible conflict with the
Russian Constitution, which bars deprivation of property unless it is through a
court order and provides mutually agreed
upon, equal, compensation. However,
the Russian government passed a law in
preparation for the Olympics permitting
expropriation of property and allowing
the government to decide what it will pay,
if anything, to former private property
owners. Because property values in Sochi
skyrocketed following the announcement
that it will host the Olympics, critics of the
government have argued that the law was
enacted to allow Russia to avoid paying the
current full property values.
Although the newly passed Olympic
law may give Russia domestic justification
for the expropriations, the country’s actions
are still subject to its treaty obligations.
Article 17 of the International Covenant
on Civil and Political Rights (ICCPR) and
Article 8 of the European Convention on
Human Rights (ECHR) require protection
from arbitrary interference in home and
family lives. The ECHR is more explicit,
providing in Article 1 of Protocol 1 that
“[e]very natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest
and subject to the conditions provided for
by law and by the general principles of
international law.”
Outside of pursuing claims with the
European Court of Human Rights and the
United Nations Human Rights Committee,
residents and advocates could look to
pressure from the International Olympic
Committee (IOC). The IOC Charter states
that it will “cooperate with the competent
public or private organisations and authorities in the endeavor to place sport at the
service of humanity and thereby to promote peace.” The provision could provide
an avenue—or at least a justification—for
the IOC to exert pressure on Olympic
countries to address human rights concerns, including concerns of expropriation.
The recent history of the IOC, however, raises questions about the mandate’s
strength. The Charter states that one of
the goals of the IOC is to “promote a
positive legacy from the host cities and
host countries.” Both leading up to and
following the Beijing Olympics, Human
Rights Watch and Amnesty International,
among others, called attention to conditions in China, including imprisonment of
activists during the games. Furthermore,
Brazil’s current demolition of the favelas
(shantytowns) in Rio de Janeiro in preparation for the 2016 Olympics raises concerns
over the IOC’s willingness to intervene in
Sochi. By declining to involve itself in the
actions of host countries, the IOC weakens its ability to influence human rights
issues. Without legal or IOC accountability, countries have fewer impediments to
enacting legislation even more detrimental
than Russia’s Olympic law. The individuals
would suffer while the world celebrates its
shared humanity through sport.
As the European Economy
Struggles, Nationalist Parties Grow
As the economic crisis in Europe deepens, regional extremist right-wing political parties, taboo after World War II,
are becoming more common due to their
policies promoting both nationalism and
protectionism. As the movement expands
beyond domestic politics and into the
governing body of the Council of Europe
(COE), it raises issues of negative treatment for minority groups.
In June 2012, the Greek political
party Golden Dawn won nine percent of
Parliamentary seats with its slogan “So we
can rid the land of filth.” A stark indication of the waning condemnation of such
groups came on October 1, 2012, when the
COE named one of the party’s parliamentarians, Eleni Zaroulia, a member of the
Parliamentary Assembly’s Committee on
Equality and Non-Discrimination. There
was an outcry from organizations such
as the Anti-Defamation League (ADL)
against her membership. The ADL has
complained of Golden Dawn’s well-known
xenophobic views and discriminatory
practices. Party members have denied the
Holocaust and publically shunned immigrants and other migrants, particularly
Jewish religious groups and persons from
Pakistan, India, Albania, and African countries. The party has advocated limiting full
political rights to only persons of Greek
descent and identity.
The rise of Golden Dawn has been
largely attributed to the economic situation in Greece. Nicolas Papakostadanous,
a spokesperson for the Greek Consulate in
New York, said, “This Golden Dawn is a
backlash, a byproduct of very austere, very
severe economic problems.” However,
Golden Dawn is not alone; it is part of
an emerging trend in Europe. Right-wing,
nationalist parties have gained political exposure in France, the Netherlands,
Hungary, Norway, Finland, and Denmark.
Extreme-right political parties tend to
merge welfare aspirations of the center left
with conservative themes of protectionism
and nationalism. Their ideology emphasizes that the government should provide
services, but those services should only be
available to native citizens. This has proved
an attractive combination for Europeans,
many of whom have lost faith in current
political leaders and seek alternative economic and political policies.
44
The rise of far-right elements has not
gone unnoticed among human rights advocates. The ADL has urged the Committee
on Equality and Non-Discrimination to
reconsider Golden Dawn’s membership.
Alternatively, the ADL asked that Zaroulia
be rebuked for any statements that promote what is often described as Golden
Dawn’s “neo-Nazi” ideology and that she
be prevented from taking any committee
leadership roles. Additionally, on October
16, 2012, the European Union of Jewish
Students started a petition to remove Ms.
Zaroulia from the Committee.
Although granting membership to an
organization with a strong discriminatory message appears to run counter to
the goals of a committee seeking to prevent discrimination, removing Golden
Dawn from the committee would raise free
speech issues. Curtailing Golden Dawn’s
ability to express its viewpoints would
create a highly charged atmosphere in
which the issue of immigrant rights and
the danger of extremist ideals would be
lost. A less controversial choice would
be to urge the COE and other European
bodies to adopt broader, more effective,
anti-discrimination policies to prevent the
nationalist groups from gaining further
power while their actions go unchecked.
European regional institutions implemented two directives that have been carried out in relation to discrimination. The
first was created in 2004 and promotes
the principle of equal treatment between
people, irrespective of racial or national
origin. The second, created in 2008, establishes a general framework for equal treatment in employment settings. While these
steps offer some anti-discriminatory protections to Europeans, the legal framework is incomplete. The Commission
has proposed a directive to complete the
legal framework and prohibit all forms
of discrimination and harassment beyond
the workplace and provide an appropriate
redress system for victims through the EU.
Golden Dawn’s participation in the
COE’s Committee on Equality and NonDiscrimination is, at the moment, a political anomaly, but without adequate recourse
for those who experience discriminatory
action, membership of groups with similar
ideologies could become the norm and
pose significant risk for domestic protection of minority groups. Greece and
other countries in which right-wing parties
are gaining political clout must also take
responsibility for implementing appropriate strategies to protect people who reside
within their borders. It is only through
cooperation between national governments
and international governing bodies that
minority groups can be protected from
the negative treatment advocated by these
right-wing organizations
Christa Elliott, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Middle East and North Africa
Protection of the Amazigh Identity
in Libya’s New Constitution
Comprising ten percent of the Libyan
population, the Berbers (who call themselves Amazigh, meaning “free man”) celebrate a cultural heritage that pre-dates
Arab expansion by thousands of years.
Though they do not consider themselves
to be a unified nation, the Amazigh have
developed a culture distinct from the Arab
identity. Under the Qaddafi regime, the
Amazigh faced constant cultural repression
from policies intended to eliminate any
non-Arab influence on society. After playing a fundamental role in the overthrow of
Qaddafi in November 2011, the Amazigh
were not offered ministry positions within
the National Transitional Council. In July
2012, a few Amazigh were elected to serve
in the Libyan General National Congress
(GNC), but the government has yet to
offer substantive rights to the Amazigh
peoples specifically, and to Libyan minorities generally. As the GNC begins to draft
a new Libyan constitution, it is obligated,
under the International Convention on
the Elimination of All Forms of Racial
Discrimination (CERD), to provide comprehensive rights for all Libyan minorities,
including the Amazigh.
The two hundred members of the GNC
will attempt to eliminate the remnants
of Qaddafi’s Libya as they draft a new
constitution. The attack on the American
Consulate in Benghazi and assassination
of U.S. Ambassador Christopher Stevens
has highlighted the need for the rule of
law and consolidation of Libya’s central
authority, a demand expressed by Libyans
themselves. In the face of nearly insurmountable odds and increasing violence,
minority rights do not seem to be a priority
for the GNC.
In order to undo the cultural repression perpetrated by the Qaddafi regime,
the GNC must fulfill its international
obligations by abandoning several articles of Libya’s 1969 constitution aimed
at marginalizing distinct cultural groups.
The Qaddafi regime declared, “[T]he
Libyan people are part of the Arab nation.
Their goal is total Arab unity.” Amazigh
were expressly forbidden from practicing
their historical customs, celebrating cultural holidays, and bestowing non-Arabic
names upon their children. The constitution also mandated that, “Arabic is the
official [l]anguage [of Libya].” Qaddafi’s
Revolutionary Council could officially
approve other languages but even singing
in the traditional Amazigh language of
Tamazight was punishable by death.
The GNC is legally obligated to uphold
the international treaties to which Libya
is already a State Party, while considering
using the existing international conventions and declarations as a rubric for its
own constitution. In 1968, Libya acceded
to the CERD, and thereby agreed to amend,
rescind, or nullify any laws that perpetuate
discrimination. The GNC therefore has an
obligation to abolish laws that discriminate
against Amazigh culture and replace them
with structural protection of cultural identity. UN General Assembly resolutions can
also serve as models. While these resolutions are not binding, they are a persuasive
indication of international custom. For
instance, Libya was among the 144 nations
that voted for the Declaration on the Rights
of Indigenous Peoples (Declaration), which
grants the right of indigenous groups to
practice and revitalize their cultural traditions and customs. Libya can uphold the
principles set forth in the Declaration by
incorporating protections for minorities in
its constitution. Further, Article 22 of the
Universal Declaration of Human Rights
(UDHR) provides that the right to realize
social and cultural rights is indispensable
to free development of personality and creates a framework for protection of distinct
social and cultural groups. A successful
Libyan constitution could begin by recognizing Tamazight as an official language,
thereby making a statement of inclusion
by incorporating Amazigh culture into the
new Libyan national identity.
45
The new Libyan constitution does not
only have the potential to be revolutionary for the Amazigh; it may also serve to
protect the rights of all of Libya’s minority groups and will set a precedent for
other countries in a similar transition after
the Arab Spring. Libya could become a
model for the successful integration of
marginalized nations, while also serving
as a springboard for further reform efforts.
These possibilities demonstrate the importance of the GNC bringing the new Libyan
constitution in line with the country’s preexisting international obligations.
Alyssa Antoniskis, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
The Implications of Limits on
Religious Freedom in Israel
Tension between Israel’s secular and
ultra-Orthodox populations represents one
of the most difficult issues facing Israeli
society today. When Israel was established,
the country’s founders made an agreement, referred to as the “status quo agreement,” with the political leaders of the
ultra-Orthodox community. The agreement
gives ultra-Orthodox leaders authority over
religious matters, a widely inclusive topic,
as Israel has no separation of church and
state. It has led to deep-rooted tensions
between Israel’s ultra-Orthodox citizens
and the rest of the population, and has
put the country at odds with human rights
norms. Israel’s policies regarding religion
and state demonstrate a divergence from
several human rights norms, including
freedom of religion, women’s rights, and
minority rights. These rights are protected
by the International Covenant on Civil and
Political Rights (ICCPR), the Convention
on the Elimination of All Forms of
Discrimination against Women (CEDAW),
and the Convention on the Elimination of
All Forms of Racial Discrimination (CERD).
The ultra-Orthodox leadership has
authority over all personal status issues
for Israeli Jews. This includes marriage,
divorce, and religious conversion. The
lack of civil marriage or divorce options
in Israel forces all citizens to wed and
divorce according to state-sanctioned
religious authorities. Under this policy,
many Israelis cannot get married in Israel,
including anyone without an official religion, inter-faith couples, and same-sex
couples. Article 18 of the ICCPR defends
“the right to freedom of thought, conscience
and religion.” Israel’s lack of civil marriage
and divorce violates Israeli citizens’ right to
freedom of religion. The ICCPR also protects people against coercion. Even though
Israel has signed and ratified the ICCPR,
and is thus legally bound by it, Israeli citizens are not free to make their own choices
regarding religion.
and … pursue … a policy of eliminating
racial discrimination in all its forms and
promoting understanding among all races.”
As a country that has ratified CERD, Israel
is legally bound to denounce and eradicate
all forms of racial discrimination, while
taking freedom of speech into account.
By allowing racial discrimination and racist incitement to continue, Israel is not
upholding its duties outlined in the CERD.
The status quo agreement has had farreaching effects on women’s rights in Israel as
well. In recent years, public spaces throughout the country have succumbed to illegal, forced gender segregation, with women
increasingly forced from the public sphere in
the name of modesty. Article 7 of CEDAW
asserts that states must safeguard women’s
rights as strongly as men’s, obliging states to
“eliminate discrimination against women in
the … public life of the country.” Although
Israel has ratified CEDAW, it is not upholding this Convention because it is not defending women’s rights against religious coercion. Article 7 also stipulates that the burden
to protect women’s rights lies on the State to
“take all appropriate measures.” Appropriate
measures include stifling religiously motivated exclusion of women from the public
sphere. Radhika Coomaraswamy, the former UN Special Rapporteur on violence
against women, its causes and consequences,
explained that States have a responsibility
to protect women from religiously motivated violence. There is no reason why the
States’ responsibility should not carry over to
defend all aspects of women’s rights outlined
in CEDAW against religiously motivated
violations. Israel’s status quo agreement cannot be used as justification for ignoring the
marginalization of women in society.
These examples demonstrate the tensions that exist between Israel’s status
quo agreement and issues of religion and
state. Through legal work in Israeli courts
and advocacy in Israel’s parliament, several Israeli human rights organizations
are striving to bring change in the area of
religion and state in Israel, and to push
the government to uphold its international
legal obligations. The Israeli government
has a legal obligation to make the necessary reforms to bring its policies into sync
with the human rights treaties that the
country has ratified.
Israel’s practices also violate its obligations under CERD. Israel’s minority
groups have recently been hit with a wave
of racism and discrimination, inspired and
perpetuated by public figures and religious
leaders. Racist incitement is a criminal
offense in Israel, but there is a trend of
community leaders using religious law to
justify racial discrimination. Throughout
the past year, several state-employed rabbis
have repeatedly referred to Israel’s Arab
citizens as “the enemy” and have preached
that all Arabs have a violent nature. These
rabbis have also urged Jews not to rent or
sell apartments to Arabs and not to employ
Arabs or shop from stores that do employ
Arabs. Article 2 of CERD states that countries must “condemn racial discrimination
Emily Singer Hurvitz, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
Sub-Saharan Africa
New Somali Constitution Seeks to
Protect Individual Rights
After over two decades of transitional
governance, Somalia’s National Constituent
Assembly adopted a provisional constitution, with 96 percent approval, that would
introduce sweeping individual protections
to a country that has struggled to form
a legitimate government. The constitution
went into effect on August 20, 2012, following the expiration of the Transitional
Federal Government and the appointment
of a new parliament. The event marks a
momentous occasion for Somalia, a country
often described as a “failed state.” Although
the document enshrines some fundamental
human rights, other provisions raise legal
conflicts that could limit the effectiveness
of the constitution’s mandates to protect the
rights of individuals.
To gauge popular support for the constitution, Somalia originally planned to
hold a national referendum, but logistical
issues—partly attributable to the presence
of the militant Islamic group al-Shabab—
thwarted the government’s democratic
46
ambition. Instead, the current plan calls
for the new parliament to vote on ratification, leaving the democratic nature of the
process unclear. The disjointed nature of
Somalia’s varying array of autonomous
semi-states has lead to a UN-sanctioned
process where clan elders appoint the
new parliament. This result—a product
of Somalia’s fractured governmental and
political system under which some regions
have declared autonomy—further separates the people from the constitution.
Although aspirations of open democratic governance will not be met at present,
the constitution’s guarantees of rights will
immediately become law. The Somali Bill
of Rights provides the primary framework
for individual rights and explicitly guarantees the foundational concept of equality
regardless of clan or religious affiliation—a
shift that overcomes significant historical
roadblocks to social equality. This guarantee reflects a foundational basic universal
human right established in Article 2 of both
the Universal Declaration of Human Rights
(UDHR) and the International Covenant
on Civil and Political Rights (ICCPR), to
which Somalia is a party.
Expanding from this central concept,
the new constitution provides for progressive protections of women and children’s
rights in both social and political spheres.
In matters related to health and personal
security, the constitution bans the common
local practice of female circumcision and
provides for the right to an abortion when
a woman’s life is at stake. Demonstrating
progressive political policy, the Somali
constitution also guarantees the right of
women to hold elected office and stipulates that women must hold thirty percent
of seats in parliament. On children’s rights,
the Somali provisional constitution guarantees the right to education through secondary school and places an explicit ban
on the use of children in armed conflict.
Nevertheless, the constitution does fall
short of significant international norms by
stipulating a religious preference. It specifies “no religion other than Islam can be
propagated.” Further conflicting with the
right to religious freedom—guaranteed by,
among other documents, Article 18 of the
ICCPR—the constitution sets forth that
Sharia law forms the basis of the legal system. Aside from possibly restricting religious freedom, this leaves a constitution
based on Islam to govern both non-Muslims
and Muslims alike. The provision could
further restrict the effect of the guarantees
of individual rights for vulnerable populations, as it explicitly states that all laws not
in accordance with the general principles
of Sharia are invalid. Some Somalis have
already objected to these rights on the
grounds that they are not in accordance
with Sharia. The primary objections relate
to the previously discussed guarantees of
thirty-percent female representation in parliament and the right to abortions in cases
where the mother’s life is at risk. Similarly,
opposition also exists to the ban on female
circumcision, which is estimated to affect
ninety-eight percent of Somali women.
Despite the possible conflicts, the provisions represent an express step by Somalia
toward confronting the lack of individual
protections in the country and overcoming the difficulties of the past—so much
so that the constitution also establishes
a Truth and Reconciliation Commission.
The language of the constitution and the
effort to revisit the effect of past human
rights abuses and violence, similar to the
approach made famous in post-Apartheid
South Africa, conceptualizes the inviolability of the individual as a crucial element
of the new government. To what extent justice and human rights are made accessible
to the Somali people in practice, however,
will hinge on whether and to what extent
the new government is successful in implementing these innovations.
Nigerian Response to Insurrection
Raises Concern Over Torture and
Crimes Against Humanity
The Nigerian Islamic organization
ama’atu Ahlis Sunna Lidda’awati WalJihad, known as Boko Haram, and Nigerian
security forces have engaged in a series
of violent conflicts, culminating in a military attack on October 8, 2012, that killed
an estimated thirty civilians in Maiduguri.
Earlier that day, a bombing killed a Nigerian
lieutenant, eliciting the military attack that
utilized troops and armored personnel carriers. Observing human rights organizations have raised concerns that the instant
violence is only the most recent conflict in a
long series of attacks that have claimed the
lives of more than 2,800 people.
Boko Haram is a militant jihadist organization in Northern Nigeria that seeks
to establish Nigeria as an Islamic state.
In 2009, Boko Haram began an armed
insurrection against the country using
bombings and armed attacks. More than
690 people in 2012 have so far fallen
victim to attacks targeting non-fundamentalist Muslims, Christians, and government
facilities. Nigerian security forces, retaliating against Boko Haram’s violent strikes,
have launched their own counteroffensives, culminating in allegations of human
rights abuses and crimes against humanity
by both sides in the conflict.
Human Rights Watch (HRW) and
Amnesty International (AI) reported that
Nigerian security forces utilize torture,
inhumane treatment, and extra-judicial
killings of civilians. These acts are in
conflict with binding provisions of the
Convention Against Torture (CAT) and
the International Convention on Civil and
Political Rights (ICCPR), as well as general human rights principles encompassed
in the Universal Declaration of Human
Rights (UDHR), all of which Nigeria is
party to without reservations.
The CAT bans the use of torture in
all circumstances, specifically stating in
Article 10 that “internal political instability
or any other public emergency” cannot be
used to justify torture. There are numerous
reports of security forces removing suspected Boko Haram members and subjecting them to torture at secret government
facilities. Although Article 10 of the CAT
requires that Nigeria investigate and prosecute individuals accused of torture, the
Nigerian government has denied both the
existence of secret facilities and the torture
of detainees. In addition, HRW reported
that extra-judicial killings, including mass
executions and execution of family members, are numerous and have increased
since 2009. The extrajudicial killing of
suspected Boko Haram members would
implicate the rights to due process and
life found in UDHR Articles 3 and 10 and
codified in ICCPR Articles 6 and 9.
The reported actions of both Nigerian
security forces and Boko Haram also raise
allegations of crimes against humanity.
The Rome Statute of the International
Criminal Court, which Nigeria has ratified,
codifies the substantive elements of crimes
against humanity. Article 7 establishes
that acts of murder, torture, rape, persecution, and enforced disappearances are
crimes against humanity when committed
as part of a widespread or systematic attack
against civilian populations in furtherance
47
of a State or organizational policy or plan.
The October 8 attack by Nigerian troops
is reported to have targeted civilians—an
action that would be encompassed under the
Rome Statute. Furthermore, the widespread
reports of disappearances, torture, and
extra-judicial killings could implicate criminal charges. Nigeria’s denial of enforced
disappearances also satisfies Article 7(2)
(i)’s requirement of the same. Boko Haram
has carried out dozens of attacks targeting
civilians, and there are reports of murder,
rape, and inhuman acts causing serious
injury to mental and physical health.
The question remains as to whether
these reported actions were conducted
in furtherance of a state or organizational policy. On November 22, 2012,
the ICC’s Office of the Prosecutor (OTP)
released its annual Report on Preliminary
Examinations. Preliminary examination,
as distinct from preliminary investigation,
is the OTP’s first step of investigating
situations for possible international crimes
that could formally be brought before the
Court. In this report, the OTP found that
while Nigerian Security Forces’ actions
may be grave human rights violations,
there was not a reasonable basis to believe
that the Nigerian Security Force’s actions
against Boko Haram were in furtherance of
a state policy or plan. However, the report
explicitly stated that this determination
was subject to change upon new information. In contrast, the OTP found that Boko
Haram does have a stated policy and plan
of attacking civilians in order to establish
an Islamic state through Jihad.
As a party to the Rome Statute, Nigeria
is subject to the jurisdiction of the ICC for
international crimes committed within its
territory. The OTP’s report found that there
is a reasonable basis to believe that Boko
Haram had committed the crimes against
humanity of murder and persecution. The
ICC is a court of last resort to be accessed
when States Parties will not or cannot
prosecute those responsible. The OTP will
next determine whether Nigerian authorities
are conducting genuine legal proceedings
against those suspected of responsibility
for crimes against humanity within Nigeria.
Tyler Addison, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Criminal Courts and Tribunals
International Criminal Court
ICC to Determine Jurisdiction
Over Libyan Officials and Set
Precedent on Court’s Scope
Libya has challenged the admissibility
of the International Criminal Court’s (ICC)
case against Saif al-Islam Qaddafi and
Abdullah al-Senussi on charges of crimes
against humanity on the grounds that the
State is capable of conducting a fair trial
according to its domestic law and is in the
process of building a case against both men.
The May 2012 motion submitted on behalf
of the government of Libya requested an
oral hearing on the admissibility challenge pursuant to Article 19 of the Rome
Statute by arguing that the case against
the former officials in the government
of Muammar Qaddafi should be deemed
inadmissible because domestic investigations and prosecutions are underway in
Libya. The expected ruling by the Pre-Trial
Chamber on admissibility in this case could
set important precedents on both admissibility and the scope of ICC jurisdiction.
If the Court allows Libya to carry out the
trials of both defendants domestically, the
result would strengthen the ability of States
to challenge admissibility and make it more
difficult for the ICC to bring international
criminals to justice.
Under Article 5 of the Rome Statute,
the ICC has jurisdiction over serious
crimes that concern the international community as a whole, including genocide,
crimes against humanity, and war crimes.
Prosecutors charged both Saif al-Islam
Qaddafi and al-Senussi with two counts
of crimes against humanity in connection
with the murder and persecution of Libyan
civilians during the 2011 popular uprising. However, the Court may only exercise
this jurisdiction in accordance with the
principle of complementarity. The principle, as stated in the Preamble and in
Article 1 of the Rome Statute, declares that
ICC jurisdiction exists alongside national
criminal jurisdictions and must defer to
ongoing national prosecutions and investigations. Article 19 allows a State to
challenge admissibility if that State is
actively investigating and prosecuting the
defendant for the crimes alleged by the
Prosecutor of the ICC.
Libya’s challenge invoked both its
right to dispute the admissibility of the
case under Article 19(2)(b) and the principle of complementarity under Article 1.
Libya has held Qaddafi in custody since
November 2011, and Mauritania recently
extradited al-Senussi to Libya after capturing him in March 2012. Libyan officials
have stated repeatedly that the two men
will be tried in Libya under Libyan law
with the possibility of facing the death
penalty if convicted.
In response to Libya’s challenge, the
ICC Office of the Prosecution noted that
under Article 17 of the Rome Statute,
admissibility-challenge determinations
are made using a two-step process. First,
national investigation and prosecution must
be ongoing. Second, those proceedings
must be “genuine.” The challenging State
must demonstrate that the proceedings are
“genuine” within the meaning of Article
17(1)(a) by showing that the proceedings
are not merely a pretense designed to
shield the accused or guarantee impunity,
and under Article 19 that the State is able
to advance the proceedings in accordance
with Article 17(3). Under Article 17(3)
the Court will examine whether there has
been a substantial collapse of the judicial
system and if the State is unable to conduct
investigations and trials. The prosecution
ultimately agreed that Libya has taken genuine steps toward investigating the charges
against Qaddafi and al-Senussi but also
expressed concern about Libya’s ability to
advance the case in domestic courts. The
prosecution thus requested more information from Libya about its ability to
advance the case domestically. The PreTrial Chamber responded in October 2012
and requested public hearings in order to
make a final decision on Libya’s ability to
advance domestic prosecution.
The concepts of admissibility and
complementarity in international criminal
law remain debated among human rights
scholars and advocates. Many argue that
the ICC should be regarded as only a court
of last resort; Libya should be allowed to
48
conduct a domestic prosecution. Others
claim Libya’s justice system is not currently capable of carrying out a free and
fair trial, so a domestic trial would result in
further human rights violations and a delay
in justice for the civilian victims of the
Libyan uprising. The ICC’s questionable
jurisdiction over Qaddafi and al-Senussi
highlights one of the biggest challenges
the ICC has faced in its few years of existence: the difficult task of balancing state
sovereignty with accountability for human
rights abuses. If Libya submits both men to
the ICC, it would be a symbolic milestone
for the Court’s authority and would bolster
or perhaps legitimize that authority in the
eyes of the international community.
First Person Convicted by ICC
Appeals Conviction and Sentence
In an historic moment for the
International Criminal Court (ICC),
Thomas Lubanga became the first person
convicted by the Court. Lubanga was found
guilty of enlisting and conscripting child
soldiers in an armed conflict on the side
of the Union of Congolese Patriots (UPC)
in the Democratic Republic of Congo and
sentenced to fourteen years’ imprisonment.
While both the defense and the prosecution are appealing the sentence, the ICC’s
verdict and sentencing in Lubanga’s case
is a landmark that monumentally bolsters
the accountability of the court. However, a
fight over the conviction and the sentencing procedure could have serious consequences for not only the other Congolese
nationals currently still on trial at the ICC
but also for all future cases brought against
alleged perpetrators of war crimes.
Following Lubanga’s March 14, 2012,
conviction, at the request of the defense
and pursuant to the Rome Statute Article
76(2), the Trial Chamber held a separate
sentencing hearing. On July 10, 2012, at
the conclusion of the hearing, the ICC
Trial Chamber I sentenced Lubanga. The
time from Lubanga’s arrest on March 16,
2006, until the date of his sentencing was
deducted from his sentence, resulting in
less than eight years’ further imprisonment
for his crimes. Lawyers on both sides of
the judgment are not satisfied with the
Chamber’s decision. On October 3, 2012,
Lubanga’s lawyers filed both a notice
to appeal the guilty verdict and a notice
of intent to have his sentence canceled
or reduced. On the same day, the prosecution likewise informed the Chamber of
its intent to appeal the sentence seeking
a harsher punishment.
In the Chamber’s sentencing decision
analysis, it looked to the applicable articles of the Rome Statute as well as the
Rules of Procedure and Evidence for guidance. Specifically, Article 76(1) of the
Statute states that the Trial Chamber shall
decide the appropriate sentence, taking
into account “the evidence presented and
[the] submissions made during the trial
that are relevant to the sentence.” Article
77(1) allows for sentencing up to a maximum of thirty years except in cases when
a term of life imprisonment is “justified
by the extreme gravity of the crime and
the individual circumstances of the convicted person.” Most importantly, Article
78 together with Rule 145 gives guidelines for determining sentences. Article
78(1) says the sentence must take into
account “the gravity of the crime and the
individual circumstances of the convicted
person.” Rule 145(1)(a) and (b) state that
the sentence must reflect the culpability
of the convicted person and the Chamber
needs to balance all of the relevant factors,
including aggravating factors and mitigating
circumstances.
In applying these guidelines, the Trial
Chamber identified six relevant factors
that it took into account in determining
Lubanga’s sentence: the gravity of the
crime and resulting damage, the largescale and widespread nature of the crimes,
the degree of participation and intent
of the convicted person, the individual
circumstances of the convicted person,
aggravating circumstances, and mitigating
circumstances. The Trial Chamber found
that while the involvement of children
was widespread, the Chamber could not
conclude beyond a reasonable doubt that
a precise number or proportion of the
recruits were under the age of fifteen. The
Trial Chamber found that as President
and Commander-in-Chief of the UPC,
Lubanga encouraged children to enlist
and even personally employed bodyguards
under the age of fifteen. Additionally, the
Trial Chamber determined that Lubanga,
an intelligent and well-educated person,
understood the seriousness of the crimes
committed. The Trial Chamber considered several claims of aggravating circumstances presented by the prosecution, including punishment of the children while under
Lubanga’s control, alleged sexual violence
against the child soldiers, and commission
of the crime when the victims were particularly defenseless, but each was dismissed.
Finally, although the Trial Chamber accepted
Lubanga’s cooperation with the Court as a
mitigating factor, the Chamber dismissed the
defense’s argument that Lubanga’s actions
during the conflict were necessary to achieve
demobilization and peace.
The wartime leader of the Serbcontrolled area of Bosnia, known as
Republika Srpska, has been on trial since
2009 for charges of genocide, persecution, extermination, murder, and forced
relocation of Bosnian Muslims and Croats,
crimes committed between 1992 and 1996.
Karadzic, who is representing himself,
pled not guilty to all charges against him.
The Chamber maintains that, although the
prosecution has repeatedly failed to produce evidence on time, the judges ensured
that the defense had ample time to review
evidence and prepare responses.
Article 81 of the Rome Statute stipulates the grounds for appeal of a conviction or sentence. Lubanga may appeal his
conviction on the grounds of procedural
error, error of fact, error of law, or on a
ground of unfairness or unreliability of
the proceedings or decision. According
to Article 81(2), however, either side may
appeal a sentence if it is disproportionate to the crime. A reversal of Lubanga’s
landmark conviction or a reduction of his
sentence would likely raise human rights
concerns about the ICC’s ability to achieve
accountability for victims and to eliminate
impunity. However, an increase in his
sentence may also raise concerns of overly
harsh punishments, especially in setting
precedent for future sentencing, including those for convictions for genocide and
crimes against humanity.
The case’s central allegation is that
Karadzic was involved in planning both the
1995 Srebrenica massacre—resulting in the
death of 8,000 Muslim men and boys—and
the forty four-month siege of Sarajevo—
resulting in 12,000 deaths. After the United
Nations Security Council instituted the
ICTY, Karadzic remained at large for thirteen years before his July 2008 arrest.
Tracy French, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Internationalized Criminal
Tribunals
Karadzic’s Right to a Fair Trial:
Protecting the Accused in the ICTY
The International Criminal Tribunal
for the former Yugoslavia (ICTY) Trial
Chamber rejected Radovan Karadzic’s
motion for retrial on August 13, 2012. The
former Serbian leader, accused of involvement in the Srebrenica massacre, based
his motion on the prosecution’s repeated
failure to submit evidence in a timely
fashion. The ICTY held that while the
prosecution submitted evidence in violation of the rules of procedure, the delay did
not prejudice the defense’s case or deny the
defendant his right to fair trial.
49
Karadzic’s motion for a retrial accused
the prosecution of failing to disclose 406
witness statements and other testimonies
in a timely fashion in addition to committing “numerous” violations of the rules of
disclosure. Since the trial began in 2009,
Karadzic has filed more than seventy
motions alleging various late or improper
disclosures of evidence. In several of such
instances, the ICTY Trial Chamber stopped
trial proceedings and provided Karadzic
with sufficient time to review documents
or other late evidence. Despite the prosecutors’ repeated infractions of the ICTY’s
rules of procedure, the Trial Chamber’s
Judge Kwon, in the August decision, ruled
that while the actions “put the prosecution
in a bad light,” Karadzic had not “suffered
damage from this violation,” and thus it
was not necessary to grant him a new trial.
As the ICTY has not established a
standard to determine fairness of a trial,
the Chamber looked to general protections
of the rights of the accused as outlined in
the Statute of the Tribunal. Articles 20(1),
21(4)(c) and 21(4)(b) protect the accused’s
right to be tried expeditiously, without
undue delay, with full respect of his or her
rights (as enumerated in other international
treaties, such as the International Covenant
on Civil and Political Rights), and to have
“adequate time and facilities for the preparation of his defense.” The Chamber also
considered its own procedural rulings in
each of Karadzic’s previous complaints
about the Prosecutor’s failure to disclose.
The Chamber explained its decision by
applying the general articles delineated in
the Statute and looking at the cumulative
effect of the repeated delays of disclosure.
Judge Kwon’s decision stated that the nature
of the evidence was neither sufficiently different from other evidence nor substantial
enough to prejudice Karadzic’s case.
In reaching its decision, the Chamber’s
central question was how the defendant’s
procedural rights relate to whether the
defendant has received a fair trial. The
ICTY has often faced such questions and
has applied Judge Shahabuddeen’s statement in his Separate Opinion on Slobodan
Milošević that “the fairness of a trial need
not require perfection in every detail. The
essential question is whether the accused
has had a fair chance of dealing with
the allegations against him.” In light of
the prosecution’s repeated missteps, the
question of whether Karadzic receives a
sufficiently “fair chance” of addressing
the charges against him broadens because
of his refusal to accept the advice of
legal counsel. Although the Chamber has
undertaken “active management” of the
trial to protect Karadzic’s rights when
the prosecution has violated the rules of
disclosure, the court is unable to force
Karadzic to listen to or take the advice of
his court-appointed standby legal adviser.
As the trial moves forward, the Chamber
must continue to balance the often-competing interests in protecting the rights of
the accused, helping Karadzic navigate
his defense without legal representation,
and ensuring that the prosecution does not
infringe on Karadzic’s right to a fair trial.
International Criminal Tribunal
for Cybercrime and Human Rights
As communication and commerce shift
into the cyberworld, some states have
questioned criminal law’s ability to protect commercial and public interests.
In his “Recommendations for Potential
New Global Legal Mechanisms Against
Global Cyberattacks and Other Global
Cybercrimes,” Norwegian Judge Stein
Schjolberg, Chairman of the global HighLevel Experts Group on Cybersecurity,
called for increased enforcement mechanisms, writing that “without an international court or tribunal for dealing with
the most serious cybercrimes of global
concern, many serious cyberattacks will
go unpunished.” Schjolberg argued that
the 2001 Council of Europe Convention
on Cybercrime (Cybercrime Convention),
although open internationally for ratification, is insufficient to address all
global cybercrimes. The crimes of concern to Schjolberg in his draft Statute
for the International Criminal Tribunal
for Cyberspace (ICTC) include attacks
on communication infrastructure, illegal access, forgery, identity theft, and
fraud—all of which reflect the Cybercrime
Convention’s structure and delineated
crimes. For Schjolberg, however, the
Cybercrime Convention falls short because
it lacks an authoritative body capable of
enforcing the laws in the realm of international criminal law. For non-European
countries, the Cybercrime Convention
does not address Internet-based crimes
that are common among developing and
transitional nations.
In the absence of an international tribunal, states have addressed cybercrime
through domestic legislation. Recently,
the Philippines’s legislature passed a
law reflecting acts criminalized in the
Cybercrime Convention; however, the
legislation included an additional crime
that, according to that nation’s Supreme
Court, violates citizens’ human rights. The
Filipino law expanded the definition of
criminal libel to include statements made
on the Internet and increased the penalty
for criminal libel to six years’ imprisonment. In 2011, the United Nations’ Human
Rights Committee declared that imprisonment of Filipino journalists for libel
violated Article 19 of the International
Covenant on Civil and Political Rights
(ICCPR). In keeping with this ruling, the
Filipino Supreme Court determined that
the new law violates the human rights to
freedom of expression and opinion.
Like the Cybercrime Convention, Judge
Schjolberg’s recommendation garnered
criticism for being too Euro-centric and
ignoring the unique threats and concerns
that developing nations face. Although the
Cybercrime Convention is open for ratification globally, the treaty is only widely
accepted within Europe, and the only nonMember State parties are the United States
and Japan. When Brazil considered signing the Convention, it eventually decided
not to because the intellectual propertycrime provisions were not compatible with
Brazil’s developing and emerging market. Such emerging markets, which also
include China, Russia, India, and Turkey,
50
are often the most vulnerable and at the
highest risk for cyberthreats.
The draft ICTC statute claims to outline the most serious crimes that would
trigger the tribunal’s jurisdiction over individuals, but it does not include any Internet
crimes that implicate human rights, and it
leaves conspicuously absent any mention
of freedom of speech. Judge Schjolberg
recommended including the ICTC as a
specialized bench within the International
Criminal Court (ICC), a body established
to address, as stated in the Rome Statute
establishing the Court, the “most serious
crimes of concern to the international
community,” including genocide, crimes
against humanity, and war crimes. It is
unclear how the defined cybercrimes meet
the ICC’s jurisdiction, which generally
covers the gravest breaches of human
rights. The proposed tribunal also does not
address the prominent cybercrime discussion occurring among international bodies,
states, and non-governmental organizations, a discussion that focuses on limitations to speech online, the vulnerability
of individuals’ human rights to freedom
of expression, and speech included within
cybercrime legislation. Furthermore, creating an international court tasked with prosecuting individuals accused of committing
cybercrimes, particularly without addressing the human rights implications of such
crimes and the legislation countries pass
to prevent them, increases vulnerability of
individuals to domestic criminal laws that
include additional provisions that restrict
human rights.
A 2012 Freedom House study on
Internet freedoms and human rights found
that twenty of the forty seven studied
countries experienced a loss in Internet
freedom since January 2011. In June 2012,
the UN Human Rights Council passed a
resolution affirming Internet freedom as
a human right. By proposing a tribunal
that addresses only economic or privacybased crimes on the Internet, Schjolberg
ignores one of the most prominent concerns regarding Internet safety and opens
the door to repressive state governments
to adopt laws in compliance with the
proposed tribunal that may easily include
clauses and provisions that overstep citizens’ rights to Internet access, freedom of
expression, and access to information.
Critics argue that the only way to establish a global governing document or body
to regulate cybercrime is to allow input and
ownership of nations from throughout the
world. It may be wasteful to throw away the
successes of the Cybercrime Convention
and Judge Schjolberg’s Recommendations,
Judgment Summaries:
International Criminal Tribunal
for Rwanda
Théoneste Bagosora and Anatole
Nsengiyumva v. The Prosecutor,
Case No. ICTR-98-41-A
On December 14, 2011, the Appeals
Chamber of the International Criminal
Tribunal for Rwanda (ICTR) issued its
judgment in the case against Théoneste
Bagosora and Anatole Nsengiyumva,
two of the four defendants tried in the
Bagosora et. al. case, affirming some
but not all charges. Both before and
during the 1994 conflict, the men held
high-ranking positions in the Rwandan
Government: Nsengiyumva served as the
Commander of the Gisenyi Operational
Sector and Bagosora served as Directeur
de Cabinet for the Ministry of Defense.
Both the Trial Chamber and the Appeals
Chamber found that Bagosora held
effective control over the Rwandan
Armed Forces from April 6–9, 1994,
because the President was killed and
the Minister of Defense was out of the
country. The Prosecution alleged that
both Nsengiyumva and Bagosora were
responsible for genocide, crimes against
humanity, and war crimes, either through
directly ordering the attacks, or pursuant
to the doctrine of superior responsibility.
In its judgment of December 18,
2008, Trial Chamber I found Bagosora
guilty of genocide, six counts of crimes
against humanity (comprising extermination, rape, persecution, two counts of
murder, and other inhumane acts), and
three counts of war crimes (two counts of
violence to life and one count of outrages
upon personal dignity). Specifically, the
Trial Chamber held Bagosora responsible for ordering the murder of Augustin
Maharangari, as well as for ordering
killings, rapes, and other crimes committed from April 6-9, 1994, at Kigali roadblocks. Furthermore, the Trial Chamber
found Bagosora guilty of superior liability for additional crimes, including the
killings of the Prime Minister, the killings
but redrafting and amending the treaty to
include representatives from developing
and developed nations alike would add
legitimacy to the process.
Megan Wakefield, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
of civilians, rapes at a Kigali roadblock,
the sexual assault of the Prime Minister,
the torture of Alphonse Kabiligi, and
the sheparding of refugees to Gikondo
Parish, where the refugees were killed.
errors with regard to the assessment of
the evidence, including the credibility
of several witnesses; inaccurate characterization of the mode of responsibility;
errors regarding how the Trial Chamber
defined the elements of genocide, crimes
against humanity, and war crimes, and
errors relating to cumulative convictions
and sentencing.
The Trial Chamber found co-defendant Nsengiyumva guilty of genocide,
four counts of crimes against humanity (murder, extermination, persecution
and inhumane acts), and one war crime
(violence to life). Specifically, the Trial
Chamber found Nsengiyumva guilty of
ordering and guilty as a superior for the
killings of individuals, as well as ordering the murder of Alphonse Kabiligi. The
Trial Chamber also found Nsengiyumva
aided and abetted the killings in the
Bisesero area of Kibuye prefecture by
sending militiamen to participate.
On appeal, Bagosora raised six challenges to his conviction and sentence.
Bagosora alleged errors with regard to
the Trial Chamber’s finding that he exercised effective control over subordinates,
fair trial violations with regard to the
enforcement of a subpoena, errors in the
assessment of the evidence, errors of law
regarding the theory of superior responsibility, and specific errors regarding
his conviction for the sexual assault of
Prime Minister Uwilingiyimana and his
role in crimes committed at roadblocks
in Kigali, as well as errors related to
cumulative convictions and sentencing.
Co-defendant Nsengiyumva raised fifteen challenges to his conviction and sentence. He alleged that the Trial Judgment
was void due to the resignation of Judge
Reddy before the release of the written judgment and raised several grounds
relating to the fairness of the proceedings, including the right to an initial
appearance without delay, the right to
be tried without undue delay, the right to
be present at trial, the fact that the Trial
Judgment did not admit some of the evidence he submitted, and errors relating to
disclosure. He also alleged errors regarding insufficiencies in the indictment and
the burden of proof upon the prosecution;
insufficiency of the proof against him;
51
The Appeals Chamber affirmed
Bagosora’s convictions for genocide,
extermination and persecution as crimes
against humanity, and violence to life
as a war crime in relation to killings
at Kibagabaga Mosque, Kabeza, the
Saint Josephite Centre, Karama Hill,
Kibagabaga Catholic Church, Gikondo
Parish, and Kigali-area roadblocks;
extermination and persecution as
crimes against humanity; and violence
to life as a war crime in relation to
the killings of Prime Minister Agathe
Uwilingiyimana, Joseph Kavaruganda,
Frédéric Nzamurambaho, Landoald
Ndasingwa, and Faustin Rucogoza, as
well as the killings at Centre Christus;
murder as a crime against humanity
and violence to life as a war crime in
relation to the killings of the Belgian
peacekeepers who were still alive when
Bagosora visited Camp Kigali; rape as
a crime against humanity in relation to
the rapes committed at Kigali area roadblocks, the Saint Josephite Centre, and
Gikondo Parish; other inhumane acts as
crimes against humanity in relation to the
stripping of female refugees at the Saint
Josephite Centre and the “sheparding”
of refugees to Gikondo Parish, where
they were killed; outrages upon personal
dignity as a war crime in relation to the
rapes at Kigali area roadblocks, the Saint
Josephite Centre, and Gikondo Parish;
and murder as a crime against humanity.
Notably, however, the Appeals
Chamber reversed Bagosora’s convictions for several charges including, his
convictions for crimes against humanity
and serious violations of Article 3 common to the Geneva Conventions and
of Additional Protocol II (war crimes)
in relation to the killings of Alphonse
Kabiligi, Augustin Maharangari, and the
Belgian peacekeepers murdered before
his visit to Camp Kigali, as well as his
convictions for genocide, crimes against
humanity, and war crimes in relation to
the killings at Nyundo Parish on April
7-9, 1994. The Appeals Chamber also
reversed his convictions for genocide,
crimes against humanity, and war crimes
in relation to the killings in Gisenyi
town on April 7, 1994, and at Mudende
University on April 8, 1994, and his
conviction for other inhumane acts
as a crime against humanity in relation to the defilement of the corpse of
Prime Minister Agathe Uwilingiyimana.
Furthermore, the Appeals Chamber set
aside his conviction under individual
criminal responsibility for ordering
the crimes committed at Kigali roadblocks while affirming his conviction
under superior responsibility for those
same offenses. Acting proprio motu, the
Appeals Chamber reversed Bagosora’s
conviction for murder as a crime against
humanity—reasoning it was impermissibly cumulative given his conviction for
extermination as a crime against humanity—and set aside his sentence of life
in prison, replacing it with a sentence of
thirty-five years’ imprisonment.
In the case of Nsengiyumva, the
Appeals Chamber affirmed his convictions for genocide, extermination and
persecution as crimes against humanity,
and violence to life as a war crime for
the killings in Gisenyi town on April 7,
1994. However, the Chamber reversed his
convictions for genocide, crimes against
humanity, and war crimes for aiding and
abetting the crimes at Bisesero in the
second half of June 1994, his convictions
for genocide, crimes against humanity,
and war crimes in relation to the killings
at Mudende University on April 8, 1994,
and at Nyundo Parish April 7–9, 1994, as
well as his convictions for crimes against
humanity and war crimes in relation to
the killing of Alphonse Kabiligi. While
the Appeals Chamber reversed his convictions for the April 7, 1994, killings in
Gisenyi Town under individual criminal
liability, finding he did not order these
crimes, the Appeals Chamber affirmed
his conviction for these killings (charged
as genocide, the crimes against humanity
of persecution and extermination, and the
war crime of violence to life) under superior responsibility. Nsengiyumva’s sentence was shortened from life in prison
to fifteen years.
The Appeals Chamber focused much
attention on the discussion of whether,
despite the fact that the defendants
could not be found guilty of ordering the
crimes, the defendants could be found
guilty pursuant to the superior responsibility mode of liability under Article 6(3)
of the ICTR Statute as a result of their
positions of authority in the military. The
Appeals Chamber held that due to the
defendants’ positions within the military,
they had a duty to prevent or punish soldiers or others under their control from
engaging in illegal acts. The Appeals
Chamber stated that “the duty to prevent
arises for a superior from the moment
he knows or has reason to know that his
subordinate is about to commit a crime,
while the duty to punish arises after the
commission of the crime.” Additionally,
the duty to prevent requires sufficient
knowledge that the crimes will occur.
In analyzing whether Bagosora had
sufficient knowledge that the crimes in
Kigali would be committed, the Appeals
Chamber looked at the “organized military nature of the attacks, his position of authority, the circumstances in
which the crimes took place, and the fact
that they occurred in Kigali where he
was based.” From this information, the
Appeals Chamber concluded the Trial
Chamber was correct in finding that
“the only reasonable inference available
from the evidence was that [Bagosora]
had actual knowledge that his subordinates were about to commit the crimes”
throughout Kigali. This knowledge triggered Bagosora’s duty to prevent and/
or punish the acts of his subordinates.
Furthermore, the Chamber made a geographical distinction between the crimes
committed in Kigali and the crimes committed in Gisenyi, finding that Bagosora
was not liable as a superior for the crimes
in Gisenyi town but was liable as a superior for similar crimes in Kigali.
In its consideration of the specific
murders against high-ranking officials, including Prime Minister Agathe
Uwilingiyimana, the Appeals Chamber
recounted the factors the Trial Chamber
had identified in inferring Bagosora’s
52
knowledge of the impending attacks against
these victims. These included the timing of
the attacks, which started within hours of
the killing of President Habyarimana; the
systematic nature of the attacks; the prominence of the victims; and the fact that they
occurred at the time when Bagosora was at
the top of the military chain of command
and had effective control over the Rwandan
Armed Forces. Thus, the Appeals Chamber
concluded that the Trial Chamber did not
err in finding that Bagosora had the requisite knowledge that these attacks were
about to occur.
Having determined that Bagosora’s
knowledge of his subordinate’s attacks
triggered his duty to prevent or punish
these crimes, the Appeals Chamber then
examined whether Bagosora violated this
duty. The Chamber stated that a superior
meets the duty when the superior takes
necessary and reasonable measures to
prevent and punish. Applying this rule
to the facts, the Chamber concluded that
Bagosora did not meet the duty to prevent reasoning that “(i) Bagosora knew
his subordinates were about to commit
the crimes, (ii) that the military—over
which Bagosora exercised effective control—had the resources to prevent the
crimes, and (iii) that to the extent that
it lacked resources, it was because they
were deployed in executing the crimes.”
The Appeals Chamber held that the Trial
Judgment did not formulate a reasoned
opinion on the issue of whether or not
Bagosora fulfilled his duty to punish and
instead arrived at the conclusion without
analyzing whether a reasonable attempt
to punish was undertaken. The Appeals
Chamber thus completed its own analysis and concluded that due to the short
period of time during which Bagosora
exercised effective control over the military, in combination with evidence suggesting that investigations into the crimes
may have started during Bagosora’s control, a reasonable person could not conclude that Bagosora failed to take measures to punish culpable subordinates.
The Appeals Chamber thus concluded
that while the Trial Chamber had erred in
its analysis of Bagosora’s failure to punish, the Trial Chamber had not erred in
finding him guilty under the doctrine of
superior responsibility as he had indeed
failed to prevent his subordinates’ crimes
(including genocide and rape) at Kigali
roadblocks. Nonetheless, the Appeals
Chamber did not cite the error as a factor
in the sentence reduction.
With respect to Nsengiyumva, the
Appeals Chamber found that while he did
not order attacks in Gisenyi town, as the
Trial Chamber had ruled, he possessed
sufficient knowledge of the attacks that
his subordinates carried out in Gisenyi
town (because he was stationed there) to
be held accountable under the doctrine of
superior responsibility.
The Appeals Chamber also addressed
Bagosora’s arguments regarding his conviction for the sexual assault of the Prime
Minister. Bagosora was convicted of the
crime against humanity of “other inhumane acts” due to the fact that a bottle
was inserted into the Prime Minister’s
vagina after her death. Bagosora argued
that sexual assault can be perpetrated only
against a living person because the prohibition on sexual assault is meant to protect
the sexual integrity of a person and there is
no sexual integrity after death.
The Appeals Chamber did not answer
the legal question posed in Bagosora’s
argument regarding the applicability of
sexual assault charges to atrocities committed after the victim’s death. Rather, the
Appeals Chamber analyzed the language
of the indictment and the Trial Judgment
and considered whether or not Bagosora
was convicted of conduct for which he
was not charged, an argument the defendant had not advanced, according to the
Appeals Judgment. The Chamber stated
that while the insertion of a bottle into
the vagina of the Prime Minister after
her death “constituted a profound assault
on human dignity meriting unreserved
condemnation under international law,”
because the indictment of Bagosora read,
“Prime Minister Agathe Uwilingiyimana
was tracked down, arrested, sexually
assaulted and killed by Rwandan Army
personnel,” the indictment appeared
to describe the events as if the Prime
Minister had been sexually assaulted
prior to her death. Thus, in the view of
the Appeals Chamber, the indictment
failed to give proper notice to Bagosora
that he was charged with acts occurring
after her death. Dissenting, Judge Pocar
criticized the Chamber’s interpretation
of Bagosora’s appeal for reversing the
conviction on the basis of an issue not
raised by Bagosora. Furthermore, Judge
Pocar insisted that while the Chamber
interpreted the indictment as implying a
specific order of events, the indictment
does not actually specify whether the
sexual assault occurred before or after the
murder. Through this reasoning, Judge
Pocar concluded that Bagosora had proper
notice of the charges against him and
was not prejudiced by the wording of the
indictment.
Finally, with respect to sentencing, the
Appeal Chamber acknowledged that while
it had reversed many of the instances
in which Bagosora had been held individually criminal liable for ordering certain attacks, it affirmed his responsibility
for these acts as a superior. Noting that
superior responsibility is considered no
less grave than individual responsibility,
it concluded that this alone would not
result in a change in sentence. However,
the Appeals Chamber cited the reversal
of Bagosora’s conviction for the sexual
assault on the Prime Minister as well as
the reversal of his conviction for murder
as a crime against humanity (based on
the fact that this conviction was cumulative with the extermination conviction) as
reasons for the decrease in his sentence.
The Appeals Chamber also revisited
the sentence of Nsengiyumva. As in the
case of Bagosora, while the Appeals
Chamber granted Nsengiyumva’s
appeal on the issue of ordering, it found
Nsengiyumva guilty of the same crimes
under the doctrine of superior responsibility, thus resulting in no change to
his sentence on these grounds. However,
it did lower his sentence based on the
reversal of his conviction for murder as a
crime against humanity in relation to the
April 7, 1994, killings in Gisenyi town
because the Chamber found it was based
on the same acts as the conviction for
extermination as a crime against humanity and was, therefore, cumulative.
Kelly Brouse, a J.D. candidate at the
American University Washington College
of Law, wrote this judgment summary for
the Human Rights Brief. Chanté Lasco,
Jurisprudence Collections Coordinator at
the War Crimes Research Office, edited
this summary for the Human Rights Brief.
53
The Prosecutor v. Ildéphonse
Nizeyimana, Case No.
ICTR-2000-55C-T
On June 19, 2012, Trial Chamber III
of the International Criminal Tribunal for
Rwanda found Ildéphonse Nizeyimana
guilty on three charges: genocide; extermination and murder as crimes against
humanity; and murder as a serious violation of Article 3 Common to the Geneva
Conventions and Additional Protocol II.
The Chamber found that beginning in
April 1994, Nizeyimana participated in
a series of joint criminal enterprises to
kill Tutsis and that he also bore superior
responsibility for all but one of the proven
killings. Notably, however, the Chamber
acquitted Nizeyimana of rape as a crime
against humanity and a war crime.
As a Captain at the École des SousOfficiers (ESO), a military-training
school in Butare, Nizeyimana served as
the intelligence and operations officer.
Although he was under the de jure command of Lieutenant-Colonel Tharcisse
Muvunyi, the Chamber concluded that
Nizeyimana exercised authority consistent with an unofficial role as second
in command at the ESO. Acting in this
capacity, Nizeyimana was found to have
planned and authorized the killings of
thousands of Tutsi refugees at Cyahinda
Parish. Nizeyimana was also found to
have participated in the establishment of
roadblocks intended to identify and kill
Tutsis, including the direct order to kill
Remy Rwekaza and Beata Uwambaye,
as well as in the attacks in the Butare
Prefecture that killed Queen Rosalie
Gicanda, Professor Pierre Claver Karenzi,
Prosecutor Jean-Baptiste Matabaro, SubPrefect Zéphanie Nyirinkwaya, and
members of the Ruhutinyanya family.
In considering the evidence of the
killings, the Chamber distinguished the
large-scale attack on Cyahinda Parish,
in which thousands of civilians—predominantly Tutsis—were massacred, and
found it to constitute extermination as
a crime against humanity. However, the
Chamber found the other instances that
involved the killings of the individuals
and families constituted the more narrow crime of murder. The Trial Chamber
noted that while “there is no numerical
threshold in establishing extermination,
case law emphasises that the killings
must occur on a large or mass scale.”
Ultimately, with respect to the individuals and families killed, the Chamber
concluded that “the number of deaths in
each instance [was] too ambiguous or too
low to establish killing on a large scale,”
and, thus, to amount to extermination.
In reaching its conclusion, the Chamber
cited the Bagosora and Nsengiyumva
Appeal Judgment, in which the Appeals
Chamber found that the large scale
requirement could not be satisfied based
on a collection of events “in different prefectures, in different circumstances, by
different perpetrators, and over a period
of two months.” However, the Appeals
Chamber in Bagosora and Nsengiyumva
also found that a series of specific killings within Gisenyi Town that were perpetrated in parallel with other killings
throughout the town at the same time
could be aggregated to establish the
crime of extermination. Nevertheless,
the Chamber arrived at its determination
without resorting to a consideration of
Nizeyimana’s murder convictions collectively or an analysis of the geography
and timing of the smaller-scale killings.
In addition to widespread killings
of Tutsi civilians where the Chamber
held Nizeyimana guilty, the Prosecutor
was less successful with charges stemming from instances of rape and other
sexual violence crimes at the hands of
ESO soldiers over which the Prosecutor
claimed Nizeyimana exercised effective control. A major obstacle for the
Prosecution in this case was the mixture
of soldiers present at, and participating
in atrocities: ESO soldiers—over which
Nizeyimana exercised sufficient effective
control in many instances—intermingled
with Presidential Guard soldiers and gendarmerie, leading to confusion with regard
to which soldiers committed which crimes
and under whose command they were operating. Thus, the Trial Chamber was unable
to conclude beyond a reasonable doubt that
ESO soldiers involved in the killings and
rapes at Butare University were at that time
under Nizeyimana’s control as opposed to
Presidential Guard superiors.
The insufficiency of evidence of
Nizeyimana’s control also arose in the
Chamber’s ruling regarding an attack
on Butare University Hospital, where
the Prosecutor alleged Nizeyimana bore
superior responsibility for the rape and
murders of Tutsis who sought treatment
and refuge. The Chamber found that
Presidential Guard soldiers began arriving at the hospital in mid-April and
that these soldiers played a role in the
violence against Tutsis at the hospital.
Because of the presence of soldiers under
two distinct chains of command, the
Trial Chamber concluded that the civilian witnesses were unlikely to have been
54
able to distinguish between ESO and
Presidential Guard soldiers, noting that,
“[w]hile the first-hand evidence of rapes
by soldiers . . . raises the reasonable possibility that ESO soldiers raped Tutsis at
the Butare University Hospital, it is not
the only reasonable conclusion.” Thus,
the Trial Chamber found the evidence
insufficient to hold that Nizeyimana possessed superior responsibility for the
crimes committed at the hospital.
As a result of Nizeyimana’s convictions
for genocide, crimes against humanity,
and war crimes, he was sentenced to life
in prison. Considerations that led the Trial
Chamber to impose this sentence included
the large number of deaths involved (especially at Cyahinda Parish), the abuse of his
authority, and the gravity of his crimes.
Because his convictions for these three
categories of crimes were all based on the
same acts, he was given a single sentence
addressing all the counts rather than three
consecutive sentences, as the Prosecution
had requested.
Yakov Bragarnik, a J.D. candidate
at the American University Washington
College of Law, wrote this judgment
summary for the Human Rights Brief.
Chanté Lasco, Jurisprudence Collections
Coordinator at the War Crimes Research
Office, edited this summary for the
Human Rights Brief.
Regional Human Rights Systems
African Systems
Case in African Court on Human
and Peoples’ Rights Challenges
Barrier to Individual Complainants
In a case against the African Union
currently pending before the African
Court on Human and Peoples’ Rights, the
Court is under pressure to clearly establish whether it has jurisdiction to hear
cases brought by individual complainants regardless of whether the challenged
State Party or international organization
has accepted the Court’s jurisdiction.
In Atabong Denis Atemnkeng v. African
Union, a Cameroonian employee of the
African Union Commission seeks a declaration that Article 34(6) of the Protocol to
the African Charter on Human and Peoples’
Rights on the Establishment of an African
Court on Human and Peoples’ Rights is
contrary to the Constitutive Act (the Act)
of the African Union, and to Articles 2, 3,
and 7 of the African Charter. Article 34(6)
requires that a challenged State acknowledge the Court’s jurisdiction before an individual’s case can proceed against it under
Article 5(3). Atemnkeng argues that this
requirement is inconsistent with Articles 2,
3, and 7, which guarantee equal enjoyment
of the rights found in the Charter, equality
before the law, and the right to have one’s
cause heard, respectively.
If the Court upholds the validity of
Article 34(6), the Court may effectively
deny individuals the right to have their
causes heard in violation of Article 7.
While individuals can currently bring cases
before the African Commission on Human
and Peoples’ Rights, Atemnkeng alleges he
was denied the justice he sought through
the Commission. Furthermore, because
Cameroon has not permitted the Court
to receive individual complaints against
it, Atemnkeng is barred from bringing
a case against the country in the Court.
Therefore, Atemnkeng has brought this
case against the African Union (AU) to ask
the Court to find Article 34(6) invalid, providing Atemnkeng, and other individuals,
an alternative venue in which to receive justice for human rights violations by States.
The African Court issued an opinion
in July 2012 in a case that also challenged the validity of Article 34(6). In
Femi Falana v. African Union, the Court
did not rule on the validity of 34(6) itself,
but rather applied it to find that the Court
lacked jurisdiction. The Court concluded
that an individual complaint against the
AU, a non-state entity that had not made
a declaration pursuant to 34(6), was outside the scope of the Court’s jurisdiction.
Additionally, the Court concluded that the
AU cannot be sued in the Court because,
while the AU has separate legal personality, it is not a party to the Protocol.
The dissent, however, did find that the
African Union could be sued because in
addition to being a separate legal entity,
organs of the AU can request advisory
opinions of the Court. The dissent argued
that Article 34(6) is contrary to the Charter
because the Protocol, under Article 66 of
the Charter, is meant to supplement the
Charter in protecting and promoting human
rights, but 34(6) instead effectively prevents
the Court from addressing human rights
abuses. However, the dissent determined
that the Court did not have the authority to
declare the Article null and void.
In light of the Falana decision, it is
still uncertain how the Court will decide
Atemnkeng’s case. With two new judges on
the Court, Ben Kioko and El Hadji Guissé,
it is possible that a majority could agree
with the dissent in Falana and find that
Article 34(6) is contrary to the Charter and
individual complainants cannot be barred
under it. While Kioko and Guissé both
replaced judges who sided with the majority in Falana, the possibility of a change
appears unlikely considering that Kioko, in
his previous role as Legal Counsel for the
African Union Commission, represented
the AU in Falana.
At stake in Atemnkeng is a clear establishment of the Court’s jurisdiction and
individual complainants’ ability to challenge human rights abuses in the Court.
Individuals can currently bring cases to the
Commission, but as Atemnkeng alleges,
this avenue does not always provide justice
for individuals. Unlike the Court’s rulings,
55
decisions of the Commission are not binding, and while the Commission can recommend individual cases to the Court,
bypassing Article 34(6), it is often slow to
deal with cases causing individuals to wait
years. Without a direct venue in which to
address human rights abuses, individuals
in the forty-nine states that have not made
a declaration accepting jurisdiction under
Article 34(6) do not have equal access to
justice. Furthermore, if the Court decides
that the AU cannot be sued because it is
not a party to the Protocol, as the majority
decided in Falana, stakeholders will not
be able to hold the AU accountable for its
actions or inaction in protecting and promoting human rights.
ECOWAS Community Court of
Justice Focuses on Effective
Implementation
In an effort to combat an estimated
sixty percent noncompliance rate with
the decisions of the Community Court of
Justice (ECCJ), the adjudicatory body of
the Economic Community of West African
States (ECOWAS), ECOWAS announced
a new focus on effective implementation of ECCJ decisions for its new legal
year, which began in September 2012.
Individuals who seek redress for human
rights violations in the ECCJ do not necessarily receive justice with a final ruling from the court; the State Party needs
to take steps to carry out the decision.
For example, in Musa Saidykhan v. The
Gambia in 2010, the ECCJ ruled in favor
of a tortured journalist, granting damages and finding violations of the African
Charter on Human and Peoples’ Rights
(African Charter) under Article 5, prohibition against torture; Article 6, the right to
personal liberty; and Article 7, the right
to a fair trial. Gambia has yet to make the
necessary declarations or pay restitution as
ordered by the Court.
The Chief Registrar of the ECCJ, Tony
Anene-Maido, credits the unwillingness
of Member States to comply with ECCJ
decisions as the source of the lack of
confidence in the Court. Adding to the
issue is the effect of noncompliance in
other Subregional Economic Communities
(SECs), which adds to ECCJ Member
States’ worries over the ECCJ’s effectiveness. The Southern African Development
Community (SADC) Tribunal was suspended after Zimbabwe refused to comply
with its decision that found Zimbabwe’s
land reform program discriminatory in
violation of the SADC Treaty. While the
Tribunal is suspended, its previous decisions
are also suspended. With this background
demonstrating the possibility of a similar
fate for other SECs, Member States have
expressed doubt regarding the effectiveness
of the ECCJ.
The work of the States in developing
implementation mechanisms is a crucial
element in the ECCJ’s ability to protect
human rights in the region. Originally
designed to interpret the ECOWAS
Treaty and hear contentious cases brought
by Member States and institutions on
Community Law, the ECCJ now also hears
cases brought by individuals on contentious
issues, including human rights violations,
since the passage of the 2005 Supplementary
Protocol to the Treaty. The ECCJ applies
international human rights treaties that
have been ratified by the States Parties,
including the African Charter, which all
fifteen ECOWAS Member States have
ratified. However, the ECCJ depends on
national implementation mechanisms set
up in accordance with Article 24 of the
Supplementary Protocol. Three states have
complied with Article 24: the Republic of
Niger, Nigeria, and the Republic of Guinea.
However, even those States with a national
mechanism in place have not uniformly
enforced all of the ECCJ’s decisions.
ECOWAS, as a SEC, overlaps with
the jurisdiction of the African Union, the
pan-African international organization that
provides complainants alternative forums
in which to bring their case. All ECOWAS
States Parties are subject to the jurisdiction
of the African Commission on Human and
Peoples’ Rights (the Commission), and nine
of the fifteen ECOWAS Member States
have ratified the protocol establishing the
African Court on Human and Peoples’
Rights (the Court). There are certain factors that may make the ECCJ a more favorable venue for an individual complainant.
Individuals cannot bring their cases before
the Court unless their State has agreed to
its jurisdiction, and the Commission can be
slow to hear complaints. Further, exhaustion of local remedies is a requirement of
the Court and the Commission but not the
ECCJ. Finally, while the Commission and
the Court implement the African Charter,
the ECCJ implements the African Charter
as well as other international human rights
instruments ratified by the State involved.
The ongoing lack of implementation
by State Parties makes the new focus on
implementation crucial. Nigeria announced
in June 2011 the new position of Minister
of Justice as the national authority charged
with implementation of ECCJ decisions,
but Nigeria has yet to effectively utilize
the mechanism. If Member States still
do not implement ECCJ judgments, even
with national implementation mechanisms
in place, future complainants may not
have the confidence to utilize the ECCJ.
Furthermore, States that do not implement
ECCJ decisions deny past complainants,
like Musa Saidykhan, the remedies promised to them. Complainants can still turn to
the Commission or the Court, but they may
be effectively barred from those organs if
their state has not accepted jurisdiction of
the Court or their complaint is grounded in
an international document other than the
African Charter.
Brittany West, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
European System
ECtHR Becomes the First
International Court to Rule
on CIA Rendition Program
The Grand Chamber of the European
Court of Human Rights (ECtHR) on
December 13, 2012, found Macedonia
liable for Khaled El-Masri’s torture and
other violations in a case connected to
the U.S. Central Intelligence Agency’s
(CIA) program of extraordinary rendition.
In 2003, Macedonian intelligence agents
apprehended and detained El-Masri before
handing him over to the CIA, the Court
found. Nine years later, in May 2012,
El-Masri filed the complaint to the ECtHR
alleging unlawful abduction and mistreatment by the Macedonian Ministry of the
Interior. The case, El-Masri v. The former
Yugoslav Republic of Macedonia, marked
the first time an international human rights
court considered the merits of a claim
related to the participation of a European
state in the U.S.-led renditions program.
The decision by the Grand Chamber
56
of the ECtHR found Macedonia liable for
violations of the European Convention on
Human Rights’ (ECHR) Article 3 (torture
and inhuman or degrading treatment) for
two counts, Article 5 (liberty and security),
Article 8 (respect for private and family
life), and Article 13 (effective remedy).
More broadly, the decision added jurisprudence on the scope and extent of state
responsibility under the ECHR for involvement in extraordinary renditions carried
out by states not party to the Convention.
El-Masri, a German national of
Lebanese descent, asserted in his petition
that Macedonia held and interrogated
him for twenty-three days before handing
him over to the CIA for interrogation in
Afghanistan concerning suspected links
to al-Qaida. He claimed that the CIA
detained him “incommunicado” with no
communication to the outside for more
than four months until setting him free in
Albania after the CIA determined El-Masri
had been confused with a similarly named
terrorism suspect.
The Grand Chamber found Macedonia
liable on all charges brought by El-Masri.
The first count under Article 3 relates
not just to his inhuman treatment during
detention by the Macedonian government,
but also for the further risk Macedonia put
him under by releasing him to the CIA.
The court significantly held the case was
not just important for El-Masri but for
other victims of similar crimes and found a
second violation of Article 3 for the State’s
failure to adequately investigate.
The ECtHR previously ruled in Osman
v. United Kingdom, that a state is responsible when it “knew or ought to have known”
that there was a real and immediate risk
to rights protected by the ECHR, and
the State failed to “take measures within
the scope of [its] powers.” The ECtHR
in El-Masri’s case likewise determined
that Macedonia “knew or ought to have
known” because the reports of the actions
of the CIA, which the Court stated were
manifestly contrary to the ECHR, were
known at the time.
In addition to Article 3 violations, the
Court found that El-Masri’s twenty-threeday detention by Macedonian authorities
along with his transfer to CIA agents violated his Article 5 ECHR right to liberty
and security of person. Section 2 of Article
5 allows only lawful arrest or detention,
prohibiting secret and arbitrary detention
and disappearance. The Court found that
he was outside the legal framework during his detention, had no access to any
court where he could challenge his detention, and it should have been clear to the
Macedonian authorities that he faced a risk
of violation of his rights by the CIA.
Assisted Reproduction violated the right
to privacy by creating inconsistent and disproportionate interference in the applicants’
lives by denying them access to embryo
screening but authorizing medically assisted
termination of pregnancy when the fetus
showed symptoms of the same disease.
The Court also found that El-Masri
had been denied respect for his private and
family life during the time of his detention and that, in conjunction with all the
other violations, there had been a violation of Article 13 because there had been
no effective criminal investigation, which
consequently also burdened his ability
to seek civil remedies. Article 13 of the
ECHR provides a right to effective remedy
in national courts for violations of ECHR
rights. The remedy required by Article 13
must be effective in practice as well as in
law, particularly in the sense that its exercise must not be unjustifiably hindered by
the acts or omissions of the authorities of
the respondent state.
With the help of in vitro fertilization
and genetic screening, the applicants, both
carriers of cystic fibrosis, wanted to avoid
transmitting the disease to their offspring.
Because the Italian law prohibits preimplantation diagnosis, their only option
was to conceive and medically terminate it
if the fetus tested positive for the disease.
The couple argued that not being able
to access genetic screening to select an
embryo unaffected by the disease was a
violation of Articles 8 and 14 of the ECHR.
The Court’s decision was a significant
finding on the legal remedies for the
ECHR States Parties’ involvement in the
U.S.-led renditions program. Despite any
tension it might cause with the United
States, the Court made clear its disapproval
of State Party’s involvement with the CIA
program and was especially critical of the
lack of investigation because it hindered
both other victims and what the Court
considered the general public’s right to
know what happened. In a complex case
involving the “War on Terror” and delicate interactions among nations, the Court
found the rights of the individual must
still be honored. Individuals have thus far
struggled to bring successful challenges in
U.S. courts or any other arena against the
U.S. government, but the Court’s decision
creates an option that, at least when ECHR
States Parties are involved, there may be a
viable option for legal challenges.
Italy’s embryo screening ban
breached couple’s right to privacy
The European Court of Human Rights
(ECtHR) delivered its judgment in the
bioethics case of Costa and Pavan v. Italy,
holding the State responsible for violating
Article 8 of the European Convention on
Human Rights (ECHR) by prohibiting
pre-natal diagnosis of genetic diseases.
The ECtHR found in its August 10, 2012,
decision that the Italian Law on Human
Article 8 of the ECHR offers general
protection of a person’s private and family
life, home, and correspondence against
arbitrary interference by the State. Section
2 of Article 8 specifies that public authority cannot interfere with this right unless
it “is in accordance with the law and is
necessary . . . for the protection of health
or morals, or for the protection of the
rights and freedoms of others.” The Italian
government did not dispute that the law fell
within the scope of Article 8; however, it
argued that the ban legitimately intervened
to protect the health of mother and child,
the doctor’s conscience, and the public
interest to prevent eugenic selection.
In its ruling against Italy, the Court
highlighted “the incoherence of the Italian
legislative system that only bans the
implantation of healthy embryos while
allowing the abortion of fetuses with
genetic conditions” and found the law
disproportionate, in breach of Article 8 of
the ECHR. The ruling is consistent with
a previous decision by the Court in S.H.
v. Austria upholding a law prohibiting in
vitro fertilization, on the grounds that there
was no European consensus to consider it
a protected human right, but the decision
allowed for an exception, as was found
in the Costa and Pavan case, where the
public interests do not outweigh the private
ones. Also like in the S.H. case, the Court
in Costa and Pavan declined to enter into
bioethical issues and instead restated the
importance of proportionality.
The Court found in 2007 that the right
of a couple to make use of in vitro fertilization to conceive a child can be protected
57
by Article 8 as an expression of private
and family life. The case concerned two
Austrian couples who wanted to conceive
a child through in vitro fertilization but
where denied access by Austrian Law.
Costa and Pavan v. Italy broadened the
scope of private and family life provided
protection under Article 8 by including
the desire to have a child born healthy and
without genetically transmissible diseases.
By identifying the parents’ wish with their
right to privacy, the Court projected the
concept of Article 8 as a right of individual
will in social order. Thus, the desire to
have a child free from disease constitutes
an aspect of the right to privacy granted
by Article 8. The Court held the notion
of “private life” to be a broad concept
inclusive of the right to respect for one’s
decision to have or not to have a child.
Furthermore, the Court observed that the
terms “child” and “embryo” must not
be confused, opposing the government’s
argument that the ban legitimately intervened to protect the health of the child.
Accordingly, to avoid any deviation in the
field of eugenics and to protect the freedom of conscience of medical personnel,
the term “child” would not apply.
The majority of European countries
allow some form of in vitro fertilization to
avoid the inheritance of genetic diseases.
Twelve European countries have yet to
establish laws regulating in vitro fertilization. The Court’s decision in this case sets
binding precedent for all Council of Europe
members. Although the Court has taken
a stand on the relevance of reproductive
medicine to the protection of private and
family life, it remains unclear how in vitro
fertilization can or should be protected by
the European Human Rights System.
Antonia Latsch, an L.L.M. candidate
at the American University Washington
College of Law, is a staff writer for The
Human Rights Brief
Inter-American System
Venezuela Seeks to Withdraw
from the Inter-American Court
of Human Rights
After months of speculation, Venezuela
has taken a decisive move to cut ties
with the Inter-American Court of Human
Rights (IACtHR) by withdrawing from the
American Convention on Human Rights
(American Convention). On September
6, 2012, Venezuela formally notified the
Secretary General of the Organization of
American States (OAS) of its intent to withdraw. Venezuelan officials have accused the
Court of acting as a puppet to United States
interests and of meddling with Venezuela’s
national sovereignty. Recent decisions by
both the IACtHR and the Inter-American
Commission on Human Rights (IACHR)
drew derision from Venezuela.
In July, Venezuelan President Hugo
Chávez reiterated statements made a few
months earlier that the country would withdraw after the Court issued a decision
in Díaz Peña v. Venezuela that required
Venezuela provide compensation for the
inhumane detention of Raúl José Díaz
Peña. That same month, the Commission
sent another case to the Court, Hermanos
Landaeta Mejías v. Venezuela, citing
Venezuela’s failure to comply with its recommendation that the alleged arbitrary
detention and extrajudicial killings of
the Mejías brothers be fully investigated.
Through its reports, the Commission has
expressed concern about political intolerance, restriction of free speech, impunity
for human rights violations, and has highlighted the Venezuelan government’s reluctance to allow the Commission to conduct
observation visits for the past ten years.
Most recently, the IACHR urged Venezuela
to investigate reports of a massacre of the
Yanomami indigenous people last year by
illegal Brazilian miners inside Venezuelan
borders. One day later Venezuela formally
notified the OAS of its intent to withdraw
from the Convention.
The IACtHR provides the last recourse
of judicial review in the Inter-American
System for violations of human rights by
states in the Americas region. In order to
be bound by IACtHR decisions, a State
must first ratify the American Convention
and then, pursuant to Article 62 of the
American Convention, declare that it recognizes the Court’s decisions as binding. Venezuela ratified the American
Convention in 1977 and declared intent
to be bound by the IACtHR’s jurisdiction
in 1981. Once the Court’s jurisdiction
has been recognized, only denouncing the
entire American Convention can remove
the State from the IACtHR’s reach. To
denounce the American Convention and
the Court’s jurisdiction, Article 78 of the
Convention requires countries to submit
official notification to the OAS of their
withdrawal one year in advance. Thus,
Venezuela is required to abide by the
Court’s decisions until the staying period
expires. During this time, the Court can
continue to receive and hear cases, and
any case pending at the end of the year will
continue its proceedings.
Even after a State Party denounces the
American Convention, the Commission
can still monitor human rights in that
country if the State is a party to the
American Declaration on the Rights and
Duties of Man. Under the current model,
if Venezuela fails to comply with findings,
the Commission retains the option to forward a case to the Court to put additional
pressure on a State that has failed to adhere
to its human rights obligations. Moving
forward, the Commission will be able to
hear individual petitions against Venezuela
for human rights abuses; however, there
will no longer be a legally binding mechanism to uphold decisions against it. The
only way Venezuela could completely
remove itself from the Inter-American
Human Rights System would be to formally withdraw from OAS membership;
thus far Chávez has denied he will do this.
Venezuela’s decision elicited concern
among human rights advocates, including a regional coalition of civil society
organizations that called on Venezuela to
reconsider. In a joint statement they wrote,
“The potential withdrawal of Venezuela
would severely undermine the protection
of human rights in this country, and would
eliminate the last recourse to justice available to those who have suffered human
rights abuses.” An additional concern is
whether Venezuela’s actions may encourage other States to reconsider their own
ratification of the Convention and the
Court’s jurisdiction. Ecuador has also
openly threatened withdrawal. To date,
Trinidad and Tobago is the only State to
ratify, and then completely withdraw from
the Convention. Other countries, such as
Peru, began the formal withdrawal process
and then reversed the decision when a
new administration took office. Whether
Venezuela will reevaluate and uphold the
importance of human rights bodies in the
Americas remains to be seen. For the next
year, the collective system remains intact.
58
Human Rights Court Hands
Another Victory to Indigenous
and Tribal Communities
From the Belo Monte dam in Brazil,
the Yanacocha gold mine in Peru, and oil
exploration activities in the Ecuadorian
Amazon, the rights of indigenous and
tribal peoples stand in sharp contrast
with the often pro-development stances
of national governments in the Americas
that grant concessions and allow corporations to build, dig, and drill. In June
2012, the Inter-American Court of Human
Rights (IACtHR) reaffirmed in Kichwa
Indigenous People of Sarayaku v. Ecuador
that States must engage in prior consultation with indigenous communities before a
project begins on their ancestral lands.
In the 1990s, Ecuador granted a concession for oil exploration in Block 23
of the Amazon to PetroEcuador, the state
petroleum company, and CGC (Compañía
General de Combustibles S.A.), an
Argentinian oil company. The Kichwa
community of Sarayaku, numbering 1,200
people, whose territory covers two-thirds
of Block 23, alleged that it was never consulted and that the community continually
opposed the oil-related activities.
Seeking redress for the lack of consent, in 2003 the Sarayaku community
submitted a petition to the Inter-American
Commission on Human Rights (IACHR).
An important element of the complaint
was the introduction of explosives on and
below their land for seismic testing. The
Commission requested provisional measures to protect the community, which the
Court granted. When Ecuador failed to
implement the measures, the Commission
submitted the merits case to the IACtHR.
For the first time in its history, the Court
sent a delegation of representatives to the
affected community in Sarayaku to gather
additional information and held an in situ
proceeding. Secretary for Legal Affairs
of the Presidency of Ecuador, Dr. Alexis
Mera, acknowledged full state responsibility for the lack of consultation and offered
to compensate the Sarayaku community.
Ruling in favor of the Sarayaku, the
Court cited violations by Ecuador of the
American Convention on Human Rights
(Convention). The Court pointed to violations of the right to prior consultation, the
right to communal property, the right to
life, the right to humane treatment, and the
right to an effective remedy. In its decision the Court cited International Labor
Organization (ILO) Convention 169,
which addresses the rights of indigenous
and tribal peoples and to which Ecuador
is a party. It also noted that Ecuador’s
constitution recognizes the right to prior
consultation and establishes that affected
communities should share in earned profits and receive compensation for cultural
and environmental damages. The Court
specified that consultation should occur
prior to the project beginning, that the
state must make a good faith effort to
obtain consent, and that consultation procedures must be adequate and accessible
to the particular community. In addition,
the Court ruled that the required environmental impact assessment in Sarayaku
failed to gather input from the community,
was not independent from the oil company,
and failed to take into account social,
spiritual, and cultural effects of oil activities on the Sarayaku. The Court ordered
Ecuador to ensure the explosives, which
are still underground and pose a potential
threat to community members, are deactivated. Additionally, the Court ordered
that Ecuador legislate a clear law on consent, pay damages to the community, and
ensure effective consultation procedures.
The Court was careful in saying that
Sarayaku did not place an outright ban on
development activities on indigenous land;
rather, the decision focused on the lack of
proper prior consultation and linked other
violated rights to this lack of exchange
with the community.
The Sarayaku decision came five years
after another pro-indigenous and tribal
rights decision by the Court in Saramaka
People v. Suriname. In Saramaka, the
Court considered whether a tribal or indigenous group was entitled to collective title
of its property and, if so, whether the State
must ensure it has the community’s consent
before granting concessions to develop the
natural resources located within its territory. The Court ruled that there is a strong
link between a tribal or indigenous community and the land and natural resources
that secure its survival. Thus, because the
Saramaka people traditionally harvested
and sold timber, a concession for logging could not be granted to a third party
until the community gave free, prior, and
informed consent.
The two decisions are especially important as governments throughout the region
wrestle with a pro-development and investment agenda, and the rights of indigenous and tribal communities. Saramaka
set a broad stage for indigenous rights and
explicitly linked the impact of industry on
a community’s rights, environment, cultural wellbeing, and livelihood, thus requiring prior consultation and consent from a
community. In Sarayaku the Court’s opinion rested on Saramaka, but focused on the
lack of proper prior consultation. While
both decisions give a boost to indigenous
rights, their full effect is still unraveling in
Ecuador and Suriname alike.
Jessica Alatorre, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Summer Law Program in The Hague 2013
Now Accepting Applications for the
7 Annual Summer Law Program in The Hague
Join us for this rare opportunity to learn and live in
the heart of the international justice community.
Examine critical issues of international criminal law
and international legal approaches to terrorism
while spending a month in the “International City
of Peace and Justice” among the practitioners,
courts, and tribunals making history today.
June 2013
th
Eligibility
The program is open to full-time and part-time
J.D. candidates who have completed one year of
study, graduate degree candidates (LL.M.), and
practicing lawyers. Graduate students in other
disciplines may also be eligible.
Program Tuition
The Program tuition is $10,200, which is the cost
of six (6) law school credits.
Apply online:
www.wcl.american.edu/hague
Questions?
202-274-4067 or [email protected]
Academics:
All participants enroll in two three-credit courses:
 International Criminal Law: In Search of
Accountability, and
 International Legal Approaches to Terrorism in the
21st Century.
Site Visits
Integral to the academic program are site visits to
major international institutions, including:
 International Criminal Court
 International Criminal Tribunal for the former
Yugoslavia
 Special Tribunal for Lebanon
59
Intergovernmental Organizations
Climate Change, Extra-Territorial
Obligations, and Ensuring the
Right to Safe Drinking Water
and Sanitation
According to the World Health
Organization (WHO) and the United
Nations Children’s Fund (UNICEF), 780
million people lack access to potable
drinking water and two and a half billion people lack sanitation where human
excreta is separated from human contact.
In a strategy overview on water, sanitation,
and hygiene, the Bill and Melinda Gates
Foundation stated that this leads to the
deaths of one and a half million children
under five each year. While there has been
progress, ensuring access to safe drinking
water and sanitation is stymied by climate
change. This connection is currently under
investigation by Catarina de Albuquerque,
the UN Special Rapporteur on the human
right to safe drinking water and sanitation,
and de Albuquerque is using human rights
obligations as a partial remedy.
Access to safe drinking water and
sanitation is a codified human right.
This right is enshrined in the Convention
on the Elimination of All Forms of
Discrimination against Women (CEDAW),
the International Labour Organization
(ILO) Convention No. 161, the Convention
on the Rights of the Child (CRC), and
the Convention on the Rights of Persons
with Disabilities (CRPD). Furthermore,
the Committee on Economic, Social
and Cultural Rights’ (CESCR) General
Comment 15 states that the right to water
is implicit in Articles 11 and 12 of the
International Covenant on Economic,
Social and Cultural Rights (ICESCR).
And, both the General Assembly and
the Human Rights Council affirmed the
right to safe drinking water and sanitation. These developments, in 2011, helped
extend the mandate and raise its title from
Independent Expert to Special Rapporteur.
De Albuquerque’s recent country visits
to Tuvalu and Kiribati were undertaken,
in part, to examine the impact of climate
change on the realization of this right. In
her July 25, 2012, public statement on
her mission to Kiribati, de Albuquerque
found that “access to water and sanitation
are being exacerbated by increasing water
scarcity, saltwater intrusions, sea level rise
and frequency of extreme weather events.”
She also found that climate change is not
just a threat to future generations; from
displacing communities to reducing the
amount of fresh water available, climate
change has become “a reality for people’s
everyday life.”
De Albuquerque’s response to the
impact of climate change on the right
to safe drinking water and sanitation
is two-fold. First, she reaffirmed states’ obligations to take steps to ensure progressive
realization of this right, which stems from
the ICESCR’s recognition that its rights
will be realized over time. Second, she
reminded industrialized countries that they
should look to prevent future violations. De
Albuquerque also called on countries most
responsible for climate change “to prevent or
remedy any denials of human rights caused
by effects of their acts or omissions in other
countries.” But, while reaffirming the obligation of industrialized countries to provide
assistance, de Albuquerque also noted the
difficulty of addressing the structural problems of climate change. The successive
failures to establish a binding post-Kyoto
Protocol agreement to mandate a reduction
in greenhouse gas emissions illustrates de
Albuquerque’s point. The Kyoto Protocol
set binding emissions reduction standards
on thirty-seven industrialized countries, but
is set to expire in 2012.
While a follow-up to the Kyoto Protocol
may be a long way off, extra-territorial
obligations are clearly recognized under
international law. Specifically vis-à-vis
ensuring the right to safe drinking water
and sanitation, ICESCR Article 2(1) calls
on States Parties to “to take steps, individually and through international assistance
and co-operation . . . to the maximum of . .
. available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant
by all appropriate means[.]” The CESCR’s
General Comment 15 calls on States Parties
to “refrain from actions that interfere,
directly or indirectly, with the enjoyment
of the right to water in other countries.”
This includes, if resources permit, ensuring
60
that their own citizens and companies do
not violate the rights of individuals in other
countries; assisting other countries to realize this right; and ensuring that international
agreements and international organizations
recognize the right. More recently, the
CRPD recognized the importance of States
Parties providing international development
cooperation, capacity-building, and technical and economic assistance.
De Albuquerque’s call for industrialized nations to help countries impacted by
climate change ensure the right to safe
drinking water and sanitation is firmly
supported under international law. In fact,
utilizing the extra-territorial obligations
under the international human rights framework may be a way to mitigate the negative
impact of climate change on rights beyond
the right to safe drinking water and sanitation until a binding and sufficient climate
change treaty can be implemented.
Adding Human Rights to the
European Financial Reform Debate
While the negative impact of the global
financial crisis on the realization of human
rights has disproportionately hit those in
the developing and least-developed countries, the crisis has also reached the developed world. On October 5, 2012, the United
Nations Special Rapporteur on Extreme
Poverty and Human Rights along with the
UN Independent Experts on the promotion
of a democratic and equitable international
order and on foreign debt and human rights
called on the European Union (EU) to
implement economic reforms that respect,
protect, and fulfill the human rights obligations of its Member States. This action
followed the release of the EU commissioned Liikanen report on October 2, 2012,
which recommended that European banks
separate their risky trading activities from
their savings and lending activities. Using
Member States’ obligations to ensure the
realization of economic, social, and cultural rights, the UN experts recommended
that the EU create a regulatory framework
that respects human rights.
The EU attempted to mitigate the
impact of the 2008 global financial crisis
through the use of bank bailouts and the
implementation of austerity measures.
Proponents of these actions argued that
they were necessary to relieve the debt crisis and stabilize the financial markets. But,
as the UN experts stated, these measures
negatively impact the realization of economic, social, and cultural rights within
the European Union.
In their joint statement, the UN experts
highlighted the human rights repercussions
of EU countries’ 4.5 trillion euro bailout of
their financial institutions. As Magdalena
Sepúlveda, the UN Special Rapporteur
on Extreme Poverty and Human Rights,
stated, “[S]uch levels of extra and unforeseen spending have pushed governments
into debt sustainability crises and, in many
cases, created unbearable hardship for
citizens, especially people living in poverty, through austerity plans which have
often contradicted States’ legal obligations
to realize economic, social and cultural
rights.” Alfred de Zayas, the Independent
Expert on the promotion of a democratic
and equitable international order added
that the implementation of austerity measures “compromise[s] not only the welfare
of the population today, but also that of
future generations.”
Cephas Lumina, UN Independent
Expert on foreign debt and human
rights, documented the real world harm
of austerity measures during his visit to
Latvia in May 2012. To receive a loan from
the EU and the International Monetary
Fund (IMF), Latvia agreed to “implement
stringent austerity measures that entailed
deep cuts in public spending.” Lumina
found this led to a rapid increase in unemployment, emigration, and poverty as well
as a decrease in household income. As
a result, Latvia maintained its status as
having one of the highest poverty rates in
Europe. In addition, the budget cuts undermined Latvia’s progress vis-à-vis ensuring
access to health care.
Latvia is just one of many examples
in Europe, including Spain, Portugal, and
Greece, where the implementation of austerity measures led to the deprivation of
rights clearly enshrined in international
human rights law. All twenty-seven EU
countries have ratified the International
Covenant on Economic, Social and
Cultural Rights (ICESCR), which ensures
the right to work (Article 6), including just
and favorable conditions of work (Article
7); the right to an adequate standard of
living for oneself and one’s family, including adequate food, clothing, and housing
(Article 11); and highest attainable standards
of physical and mental health (Article 12).
According to the UN experts, a solution to the crisis that both respects human
rights and remedies the structural defects
61
that helped fuel the crisis will require a
multipronged approach. De Zayas cautioned the EU to avoid “undemocratic
bailouts,” and added that viable solutions
to the financial crisis already exist, such as
implementing “significant” reductions to
“all military expenditures.” According to
Lumina, a long-term solution will require
the implementation of effective regulatory
measures that curb bank bailouts and address
the “central role” played by credit-rating
agencies, financial speculators, and hedge
funds in “fueling this crisis.” In addition to
being smart economic policy, Sepúlveda
stated that the need to ensure that States
Parties implement a regulatory framework
and avoid future bailouts stems from their
obligation to ensure the progressive realization of economic, social, and cultural
rights. By protecting their budgets, EU
Member States will be better positioned to
carry out this obligation to the maximum
of their available resources.
As these UN experts make clear, EU
Member States are obligated to ensure
the progressive realization of economic,
social, and cultural rights. To achieve this,
the EU must reform its financial sector.
Frank Knaack, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Center and Faculty Updates
Center News
The Center for Human Rights &
Humanitarian Law (the Center) was
established in 1990 to provide scholarship and support for human rights initiatives internationally and within the United
States. Located at the American University
Washington College of Law (WCL), the
Center works with students, academics, and
practitioners to enhance the understanding
and implementation of human rights and
humanitarian law worldwide. The Center
explores emerging intersections in the law
and seeks to create new tools and strategies
for the creative advancement of international norms. The Center has a variety of
core projects, including the Anti-Torture
Initiative, the Program on Human Rights
in the United States and its Local Human
Rights Lawyering Project, the Program on
Human Rights of Persons with Disabilities,
the Program on Human Rights Education,
and the Initiative on Human Rights in
Business. In addition to these projects, the
Center provides current students opportunities, which include skills development
seminars, lunchtime learning sessions, and
a robust program of more than fifty conferences and events per year.
Program on Human Rights
in the United States
First-Ever Joint Legal Aid
Submission Made to UN Special
Rapporteur on Extreme Poverty
and Human Rights by Local Human
Rights Lawyering Project Partners
On December 13, 2012, a coalition of
twenty-eight non-profit legal and social
services organizations submitted a complaint to the United Nations arguing that
the practice of denying farmworkers the
right to have visitors and social services
providers, and likewise denying those
providers meaningful access to migrant
farmworker labor camps, is a violation of
human rights law. Maryland Legal Aid,
with technical assistance provided by the
Center, spearheaded the complaint submitted to Magdalena Sepúlveda Carmona, UN
Special Rapporteur on extreme poverty
and human rights. The complaint, which
is the basis for the article in this issue by
Reena Shah and Lauren E. Bartlett, was
jointly written by legal services, health
care, workers’ rights, anti-trafficking organizations, and other community service
programs that serve migrant farmworkers,
representing all fifty states. Texas RioGrande
Legal Aid also played a key role in the development of the communication. This is the
first time that legal aid organizations have
joined together to present a communication
to a UN Special Rapporteur.
Briefing on Human Rights
Implications of SCOTUS Decisions
in the 2012 Term
On Wednesday, July 18, 2012, the
Center and the American Society of
International Law (ASIL) held a briefing
to examine the human rights implications
of key decisions from the 2012 term of
the United States Supreme Court. The
session focused on how the decisions
on immigration, health care, and juvenile
life without parole impact U.S. adherence to its human rights obligations. The
speakers were Professor Martha Davis of
Northeastern University School of Law,
discussing the implications of National
Federation of Independent Businesses v.
Sebelius; Professor Connie de la Vega of
the University of San Francisco School of
Law, discussing Miller v. Alabama; and
Professor Anita Sinha of WCL, discussing Arizona v. United States. The event
was joined by a large online audience with
more than 100 remote locations participating in the discussion via live webinar and
was moderated by Lauren E. Bartlett,
Director of the Center’s Local Human
Rights Lawyering Project.
Center Co-Sponsors High-Profile
Discussion on Kiobel v. Royal Dutch
Petroleum Reargument; More
Than 50 Remote Locations Tune In
via Live Webcast
The day after the reargument of the
Kiobel v. Royal Dutch Petroleum case at
the U.S. Supreme Court, the Center joined
62
co-sponsors Earth Rights International,
the WCL Program on International and
Comparative Environmental Law, and the
WCL International Legal Studies Program
in hosting an assessment of the reargument
and discussion of the future of the Alien
Tort Statute. The program included an
analysis of the U.S. Supreme Court argument at the intersection of human rights,
environmental justice, and extraterritoriality with high-profile international law
experts. Speakers included Paul Hoffman,
Lead Counsel for the Plaintiffs; Katie
Redford, Co-Founder and U.S. Office
Director of Earth Rights International;
John B. Bellinger, III, Partner at Arnold
& Porter, LLP; and Former Legal Advisor
to the U.S. Department of State Andrew
Grossman, Litigator at Baker Hostetler and
Legal Fellow at the Heritage Foundation.
WCL Professor and Associate Dean for
Scholarship Stephen Vladeck served as
moderator. An article summarizing this
event appears in this issue.
C-SPAN covered the event live, and
in addition to more than 120 in-person
attendees, the event was also joined by
a robust online audience with more than
fifty remote locations participating in the
discussion via live webcast. A number of
law schools held concurrent screenings of
the discussion.
Local Human Rights Lawyering
Project Director Selected for US
Civil Society ICCPR Coordinating
Taskforce
Lauren E. Bartlett, Director of the
Center’s Local Human Rights Lawyering
Project, was appointed to the U.S. Human
Rights Network’s new ICCPR Taskforce,
a Network body charged with coordinating U.S. civil society advocacy before the
UN Human Rights Committee to hold the
United States accountable to its obligations to respect, fulfill, and protect human
rights under the International Covenant
on Civil and Political Rights (ICCPR).
The ICCPR Taskforce comprises twelve
members and two co-chairs representing
different geographic regions, issue areas,
and constituencies.
Center Co-Sponsors Expert Panel
and Supports Efforts to Promote
Free and Fair Elections in the
United States
On October 25, the Center and the WCL
Program on Law and Government sponsored
an expert panel to discuss international standards for free and fair elections and apply
those standards to the 2012 U.S. elections.
The discussion featured Patrick Merloe,
Senior Associate and Director of Electoral
Programs at the National Democratic
Institute, and Marcia Johnson-Blanco,
Co-Director of the Voting Rights Project of
the Lawyers’ Committee for Civil Rights
Under Law. Center Executive Director
Hadar Harris moderated the panel.
The Center also helped coordinate
a nonpartisan election protection training by Meredith McCoy, an Election
Protection Legal Fellow with the Lawyers’
Committee, at WCL. The training provided
law students and attorneys with information on federal and state election law so as
to equip them to provide voter support at
polling locations on Election Day.
Initiative for Human Rights
in Business
In Fall 2012, the Center launched its
Initiative for Human Rights in Business
(IHRIB). This new program is devoted to
the promotion of human rights and justice
for people adversely affected by business
and economic activity around the world.
IHRIB aims to build the capacities of
businesses to operate in a responsible and
sustainable manner, of civil society to advocate for human rights and environmental
protections, and of governments to create
and execute effective public policies.
IHRIB has two core projects in development: Accountability for the Security
Sector in Risk Environments (ASSURE)
and the Financial Humanity Project (FHP).
ASSURE seeks to foster rights-respecting
behavior by private military and security companies operating around the world
through strategic engagement with industry
leaders and key stakeholders in government, civil society, and academia. FHP
seeks to improve access to affordable food
to those at greatest risk of hunger resulting
from uncontrolled speculation in global
commodity investments. Both programs
are aimed toward ensuring that these growing markets—private security and global
commodity investments—operate with
greater emphasis on respect for human
rights, adjusting their practices to reduce
and eliminate harm done to associated
populations. More details can be found at
the Initiative’s website, www.IHRIB.org.
Project Co-Director John
Richardson Participates in Expert
Panel on Human Rights Implications
of Financial Regulation
On September 10, Initiative for Human
Rights in Business (IHRIB) Project
Co-Director John Richardson participated in an expert panel, “Regulating
Finance as if Human Rights Mattered: Is It
Feasible?” Hosted by the WCL Academy
on Human Rights and Humanitarian Law,
the Center of Concern, and Americans for
Financial Reform. The panel addressed
the human rights community’s contribution to the financial-regulation debate,
obstacles human rights organizations
face in engaging in financial regulation,
and strategies for strengthening the impact
of the human rights community on domestic and international financial regulatory
choices. Other speakers were
Eric Tars, Director of Human
Rights and Children’s Rights
Programs at the National Law
Center on Homelessness and
Poverty; Rob Randhava,
Counsel for the Leadership
Conference on Human
and Civil Rights; Daniel
Bradlow, Professor of Law
at WCL; and Aldo Caliari,
Director of the Rethinking
Bretton Woods Project at the
Center of Concern.
and discussed approaches for international acceptance and implementation of
the PSC Quality Assurance Management
Standards within the context of contractual and regulatory initiatives. In addition
to the in-person attendees, the workshop
was joined by more than 120 registrants
from remote locations around the world.
Speakers included Christopher Mayer,
Director of Contingency Contractor
Standards and Compliance from the
U.S. Department of Defense; Doug
Brooks, President of ISOA; Dr. Rebecca
DeWinter-Schmitt, Co-Director of the
Center’s Initiative for Human Rights in
Business; Andrew Carswell, Delegate to
the U.S. and Canadian Armed Forces for
the International Committee of the Red
Cross; and Dr. Marc Siegel, Commissioner
of the ASIS Global Standards Initiative.
Program on Human Rights of
Persons with Disabilities
Disability and Human Rights
Fellowship Program
Center Hosts Workshop
on Standards for
Private Military and
Security Contractors,
WCL Disabilities and Human Rights fellows
More Than 120
The Center launched its new Disability
Registrants Participate via
and
Human Rights (DHR) Fellowship
Live Webcast
On October 5, the Initiative for Human
Rights in Business, in conjunction with
ASIS Global Standards Initiative, hosted a
workshop to exchange information about
quality of service, management of risks,
and protection of human rights among
those actively engaged with the regulation, provision, or use of private security services. The workshop provided an
overview of the PSC series of standards
63
Program in August 2012. Sponsored by
the Open Society Foundations, WCL is the
only school in the United States to participate in the inaugural year of this global program. The fellowship brings human rights
attorneys from around the world to study
disability rights and human rights, with an
effort toward enhancing their knowledge
and skills, thus enabling them to take on
disability-related cases when they return
home. The Fellows follow a specialized
course of study, including a weekly seminar led by Center Executive Director
Hadar Harris and WCL Professor Robert
Dinerstein, Associate Dean of Experiential
Education and Director of the Disability
Law Clinic. In addition to their studies, the
DHR Fellows also gain practical experience in the field of disability and human
rights through participation in an externship during the Spring 2013 semester. The
five Disability and Human Rights Fellows
hosted at WCL for the 2012-2013 academic year are Alpana Bhandari (Nepal),
Facundo Chavez Penillas (Argentina),
Bijay Dahal (Nepal), Adalberto Mendez
Lopez (Mexico), and Juan Ignacio Perez
Bello (Argentina).
in the pilot semester. The course was
co-taught by Center Assistant Director
Melissa del Aguila and Executive Director
Hadar Harris. The Center will be working with the RFK Center and partner
schools around the U.S. to expand the
program in the coming year.
Call for Papers: Third Annual
International Humanitarian Law
Student Writing Competition
In collaboration with the American
Society of International Law (ASIL)
Lieber Society, the Center launched its
third annual International Humanitarian
Law Student Writing Competition. This
Competition is designed to promote interest and enhance scholarship in the field
Program on Human Rights
of international humanitarian law (IHL)
Education
among law students from around the world.
A high-level panel
of IHL experts
(both academics
and practitioners)
will judge the
submissions and
determine the winners. The winning
authors will present their papers
at a conference at
WCL on April 2,
2013, with travel
and accommodation expenses covWCL fellows with RFK Center President Kerry Kennedy and students
ered. Winners will
also receive complementary registration
Center Pilots Speak Truth To
at the ASIL Annual Meeting, which will
Power Human Rights Teaching
start immediately following the conference
Fellows Program
The Center, in collaboration with the in Washington, D.C., and will receive a
Robert F. Kennedy Center for Justice and one-year student membership with ASIL.
Human Rights (RFK Center), launched the Submissions are due Thursday, January
new Speak Truth to Power Human Rights 31, at 12:00 noon (EST). For full eligibilTeaching Fellows Program in Fall 212 ity and submission requirements, please
to train law students to become effective visit www.WCLCenterforHR.org or email
human rights educators and advocates. The [email protected].
program, which is the first of its kind, partners law students with local high school
teachers and students to provide them
with an opportunity to teach and learn
about human rights using the RFK Center’s
innovative Speak Truth To Power human
rights curriculum. The project seeks to
enhance the skills of law students to communicate effectively about human rights
to a variety of different audiences, using
a diversity of pedagogical tools. Ten WCL
students were selected through a competitive application process to participate
WCL Student Initiatives
Center Student Advisory Board
Announces Winner of Second
UDHR Photo Project Competition
The Envisioning Human Rights: UDHR
Photo Project, an initiative of the Center
Student Advisory Board, is a quarterly
competition that encourages members of
the WCL community to submit photos
that link to a specific theme taken from
64
the articles of the Universal Declaration
of Human Rights (UDHR). The Center
features winning photos taken by WCL students, faculty, staff, and alumni, representing
their interpretation of specific articles of the
UDHR. The second theme of the competition was Article 25: “Everyone has the
right to a standard of living adequate for
the health and well-being of himself and of
his family, including food, clothing, housing and medical care and necessary social
services, and the right to security in the
event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.”
In its second quarter, the competition received nineteen submissions from
the WCL community, featuring scenes
from countries around the world, including
China, Kenya, Lebanon, and the Democratic
Republic of Congo. Award-winning photojournalist Betsy Karel served as the Fall
2012 guest judge. The winning photo was
taken by Lejla Hasanovic, an International
Visiting Scholar at WCL originally from
Bosnia and Herzegovina, and is entitled, “In
Front of Our Doors: Homelessness in DC.”
The culmination of the UDHR Photo Project
will be a photomontage in Spring 2013
displaying a visual interpretation of what
human rights means to the WCL community.
Popular Lunchtime Lecture Series
Introduces WCL Students to
International Human Rights Law
The Center continued its lunchtime
lecture series designed to give students
a “taste” of human rights and humanitarian law while they are studying their
required first-semester courses. The Fall
2012 Munching on Human Rights began
in September with “Human Rights 101:
A Crash Course” led by Center Executive
Director Hadar Harris. The second in the
series, on October 18, was led by Center
Co-Director Rick Wilson and focused on
“Economic, Social, and Cultural Rights.”
The final event of the series, “Human
Rights Intersections,” addressed the overlap between human rights and other legal
fields not commonly associated with
human rights, such as tax law, intellectual property law, and international business law. A panel of WCL professors,
Nancy Abramowitz, Sean Flynn, and
David Snyder, spoke on these subjects,
respectively.
Faculty Updates
Claudio Grossman is the Dean of the
American University Washington College
of Law (WCL) and a Co-Director of the
Center for Human Rights and Humanitarian
Law. He is also the Raymond Geraldson
Scholar for International and Humanitarian
Law. He received a Lifetime Leadership
Award from the Hispanic National Bar
Foundation in July 2012 and a Leadership
Award from the Maryland Hispanic Bar
Association in September. In May, Dean
Grossman was re-elected as Chair of the
United Nations Committee against Torture
and Other Cruel, Inhuman or Degrading
Treatment or Punishment for the third
time, and in October, he appeared before
the UN General Assembly in New York in
his capacity as Chairperson.
In addition to his report before the
UN, Dean Grossman participated in a
panel on “Reprisals against Victims of
Torture and Other Ill-Treatment” along
with The Permanent Mission of Denmark
to the UN and in partnership with the
Association for the Prevention of Torture
(APT). He also participated as a panelist
on “The Experience of the UN Committee
against Torture,” discussing the “Issue
of Intimidation or Reprisal against
Individuals and Groups Who Cooperate
or Have Cooperated with the UN, its
Representatives, and Mechanisms in the
Field,” and also discussing “Treaty Bodies
and International Accountability for State
Human Rights Obligations.” He also
served as a panelist in his capacity as Chair
of the UN Committee against Torture on
“Enhancing the Effectiveness of Treaty
Bodies” in July 2012.
In addition to other activities in his
capacity as Dean, Grossman co-organized
and participated in “The Future of the InterAmerican Human Rights System” as part
of an event with law schools throughout
the Americas as well as with international
law centers. The conference was held at
WCL in October. He also published four
articles in the Max Planck Encyclopedia
of Public International Law, entitled:
“American Declaration of the Right and
Duties of Man;” “Disappearances;” “InterAmerican Commission on Human Rights
(IACommHR);” and “Mayagna (Sumo)
Awas Tingni Community v. Nicaragua
Case.” Human Rights Quarterly published
an article by Dean Grossman entitled
“Challenges to Freedom of Expression
within the Inter-American System: A
Jurisprudential Analysis.”
Juan E. Méndez has been a Visiting
Professor at WCL since 2010, and is
also the UN Special Rapporteur on
Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment. In
2009 and 2010 he was the Special Advisor
on Prevention to the Prosecutor of the
International Criminal Court. He is also
the Co-Chair of the Human Rights Institute
of the International Bar Association and a
Co-Director of the Center for Human
Rights and Humanitarian Law at WCL.
Dean Grossman made several media
appearances over the summer; he was
interviewed about the UN Committee
against Torture for France24 in July, about
freedom of expression in Venezuela for
Globovisión in Venezuela, about torture in
Iran for the BBC, about the UN General
Assembly UN for CNN en Español,
and on reports of torture, killings, and
human rights violations in Syria for UN
Radio. Also, in October, Dean Grossman
appeared on Efecto Naím to speak about
the Inter-American Human Rights System.
In September 2012, Professor Méndez
gave a lecture on the implementation of
the prohibition of torture for the 30th anniversary of Redress in London. He also
gave a guest lecture on “Accountability for
Mass Atrocities” at Carlos III University
in Madrid, Spain, on September 14, 2012.
After the lectures, Professor Méndez
granted interviews to the BBC, The
Guardian, and El País.
Diane Orentlicher is a Professor of
Law at WCL and Co-Director of the Center.
In January 2012, Professor Orentlicher
returned to teaching after two and a half
years’ service in the U.S. Department of
State, where she worked on the prevention of and response to mass atrocities. In
November, Professor Orentlicher was one
of two speakers who engaged in a dialogue
on the topic “Has the World Learned the
Lessons of the Shoah?” sponsored by
The Generation After, Inc., in Washington,
D.C. In October, Professor Orentlicher
participated in a conference structured as
an experts’ roundtable entitled “Assisting
States to Prevent Atrocities” at The Stanley
Foundation in the Airlie House in Virginia.
She also gave a presentation on “Justice and
Accountability Measures” at the Genocide
and Mass Atrocities Training Workshop,
United States Holocaust Memorial
Museum, Washington, D.C., and was the
keynote speaker at the 40th Anniversary
Symposium on Humanitarianism and
Human Rights at the Poynter Center in
Bloomington, Ind., where she addressed
the question, “When Is International
Justice Transitional Justice? Lessons from
the Balkans.” Additionally, Professor
Orentlicher participated in and co-led a
conference on Law and Diplomacy for the
Academie Diplomatique Internationale/
London International Bar Association in
Paris in June.
65
Herman Schwartz is a professor at
WCL and is a recipient of the Champion
of Justice Award from the Alliance of
Justice. Through his work focusing on
prisons and prisoners’ rights, as well as on
transitional justice in emerging democracies, Professor Schwartz has worked with
numerous organizations including the UN,
Helsinki Watch, and the American Civil
Liberties Union.
Professor Schwartz recently made
two media appearances. The first was for
Politico in September on “Imprisonment
without end at Guantánamo.” The second was in October for The Nation,
where he spoke on “Rewriting Antitrust
Law.” In connection with his position as
a Co-Director of the Center for Human
Rights and Humanitarian Law, Professor
Schwartz also published an article for
The Nation in August entitled, “How the
Supreme Court Came to Embrace Strip
Searches for Trivial Offenses.”
Janie Chuang has been a professor
at WCL since 2004 and focuses on international law, human trafficking, international commercial arbitration, and gender
and labor migration. Previously, Professor
Chuang acted as an adviser for the UN
Trafficking Protocol to the UN Convention
on Transnational Organized Crime, advocating for the inclusion of human rights
protections for trafficked persons. Over
the summer, Professor Chuang presented
on “The Use of Indicators to Measure
Government Responses to Human
Trafficking” at a conference on “Indicators
as a Technology of Global Governance”
at New York University School of Law’s
Institute for International Law and Justice.
This presentation was based on a publication similarly titled published in September
in Indicators as a Technology of Global
Governance by Sally Merry, Benedict
Kingsbury, and Kevin Davis.
In October, Professor Chuang presented
on “The U.S. Au Pair Program: Labor
Exploitation and the Myth of Cultural
Exchange” at Harvard University Law
School and a publication on the topic is
slated to be published in the Harvard Journal
of Law & Gender. Additionally, Professor
Chuang gave a talk on “Exploitation Creep
and the Trafficking Threshold: A Case Study
of Migrant Domestic Worker Recruitment”
for a conference on Human Trafficking
hosted by the University of Cork and the
Organization for Security and Cooperation
in Europe in Cork, Ireland.
Robert Dinerstein has taught at WCL
since 1983, is the Associate Dean for
Experiential Education, and is Director
of the Disabilities Rights Clinic. He
specializes in the fields of clinical education and disability law, especially mental
disabilities law (including issues of consent/choice, capacity and guardianship),
the Americans with Disabilities Act, the
Civil Rights of Institutionalized Persons
Act, the UN Convention on the Rights of
Persons with Disabilities, legal representation of clients with mental disabilities,
the interaction between disability and the
criminal justice system, and disability and
international human rights.
In July, Professor Dinerstein conducted a training session in Argentina
for new disabilities rights clinicians
from across Latin America and Africa.
Over the summer, Professor Dinerstein
gave numerous presentations and media
appearances. These included: presenting a
66
paper on “The Obama Administration and
Enforcement of the Rights of People with
Disabilities” at the Annual Meeting of the
Southeastern Association of Law Schools
in Florida, speaking on “Supreme Court
and Circuit Court Review” at the Annual
Meeting of the National Disability Rights
Network in Baltimore, and participating
on a panel entitled “The Status of Clinical
Educators—Today and Beyond” at the
Association of American Law Schools on
Clinical Legal Education in Los Angeles,
California. Professor Dinerstein’s media
appearances also included the online
Mary and Melissa Radio Show hosted in
Washington, D.C., on July 17th, and an
interview on the work of the Quality Trust
for Individuals with Disabilities, Inc., also
in Washington, on behalf of people with
developmental disabilities.
ALUMNI PROFILE
Francisco J. Rivera Juaristi,
JD/MA, ’03
he described as his “one and only option” because of its commitment to human rights education.
hen Francisco Rivera Juaristi accepted Dean Claudio
Grossman’s invitation to participate in a hearing
before the Inter-American Court of Human Rights
(IACtHR) in San José, Costa Rica, during his second year at
the Washington College of Law (WCL), he did not know that it
would quickly become the defining moment in his career. Just a
few years later, Rivera Juaristi would find himself at the IACtHR
as a Senior Attorney. Having dedicated six years to the IACtHR,
drafting and supervising dozens of judgments and decisions,
Rivera Juaristi is now the founding Director of the International
Human Rights Clinic at Santa Clara University School of Law.
At WCL, Rivera Juaristi was not seeking out a traditional law
school education; he wanted to learn how to be a more effective advocate for the issues about which he deeply cared. One
of these issues was the closing of the School of the Americas
(SOA), which was operated by the U.S. Army to train Latin
American military and police personnel. In 2001, the United
States Congress renamed SOA, but basically kept its mandate
intact. Against this background, Rivera Juaristi marched twice
to Fort Benning, Georgia, to participate in protests in favor of
shutting down the SOA. Although unsuccessful in convincing
Congress to shut down the school, the massive protests drew
attention to the public outcry over the SOA’s continuing link to
human rights atrocities committed by its graduates. “Protests
continue to this day and remind the public that the United States
has often stood on the wrong side of Latin American history,”
he said. “We continue to urge the U.S. government to focus its
military cooperation on providing more human rights training
and less teaching on torture techniques.”
W
Rivera Juaristi’s passion for human rights advocacy started
long before law school. As an undergraduate at Boston College
studying Political Philosophy and Liberation Theology, Rivera
Juaristi read Mark Danner’s book The Massacre at El Mozote
about the activities of death squads during the 1979–92 civil war
in El Salvador. He recalled that the book “opened my eyes to the
world of human rights abuses in such a way that I haven’t been
able to close them since.”
That same year, Rivera Juaristi was arrested for participating in a civil disobedience action in front of the White House in
support of the struggle for peace in Vieques, Puerto Rico. The
small island has housed a U.S. naval training base since 1941.
Massive U.S. military bombings and training exercises polluted
the inhabited island, causing significantly higher cancer rates on
Vieques than on mainland Puerto Rico. Rivera Juaristi grew up
on the main island in San Juan, with a tangible awareness of the
suffering on the small neighboring island. He later also spoke
about Vieques before 200,000 people at an anti-Iraq war rally to
bring awareness to the ongoing struggle against the degradation
of the island and its detrimental effects on the inhabitants.
Rivera Juaristi was driven to attend law school not because
of his desire to be a litigator but because of his commitment to
human rights advocacy. While he was in college, Latin America
was emerging from decades of dictatorship and oppression to
an era of democracy and the rule of law. In 1998, a Spanish
court issued the landmark indictment of former Chilean dictator
Augusto Pinochet for human rights violations, including torture
and assassination. That year, Rivera Juaristi, serving as Director
of Amnesty International in Puerto Rico, was invited to speak
about the indictment at a conference about universal jurisdiction.
With an understanding of the political and historical context, but
a lack of knowledge of the technical legal issues involved, Rivera
Juaristi decided to go to law school, specifically to WCL, which
His participation in UNROW, the Human Rights Impact
Litigation Clinic at WCL under the supervision of Michael
67
Tigar, allowed Rivera Juaristi to revisit the Pinochet case that
drew him to the study of law in the first place. The clinic filed a
claim on September 10, 2001, against former U.S. Secretary of
State Henry Kissinger and other government officials for their
involvement in the coup that killed Chilean army general Rene
Schneider, among others, and put General Pinochet in power.
The case, filed under the Alien Tort Statute, was overshadowed
the very next day by an event that would change the world.
Rivera Juaristi recalls being called a terrorist after the events
of September 11 because UNROW had filed suit against U.S.
government officials. He is not, however, deterred by such allegations and remains proud of his work on the case.
Despite the rewarding experience at the Court and at many
different international organizations in Latin America, the
United States, and Africa, Rivera Juaristi wanted to combine his
passion for human rights advocacy with his desire to help rising
advocates learn effective human rights lawyering skills. Rivera
Juaristi said that he hoped to “motivate law students about
the vast opportunities available to them in the Inter-American
Human Rights System.”
He returned to Puerto Rico in 2010 to teach courses on Public
International Law, Human Rights, and International Courts,
while pursuing LLM and doctorate degrees at the Universidad
Complutense of Madrid, Spain. Rivera Juaristi has not failed to
be on the cutting edge of human rights law, writing his doctoral
thesis on international accountability for human rights violations
involving multinational corporations, observing that this is “the
next big challenge in international human rights law.” The U.S.
Supreme Court recently held hearings in a case regarding liability for multinational corporations under the Alien Tort Statute.
Expressing his concern that the Court will limit the statute’s
scope, he said that accountability mechanisms for human rights
violations should be strengthened, not weakened. He added,
“We need to continue to develop binding norms of international
law that require States Parties to impose sanctions (whether of
a criminal, civil, or administrative nature) on corporations that
participate in human rights violations.”
UNROW was only the beginning of Rivera Juaristi’s career
in litigation against human rights abuses in Latin America. Dean
Grossman invited Rivera Juaristi to observe a hearing in the
Bámaca Velásquez case before the IACtHR. There, he listened to
the testimony of Jennifer Harbury, wife of a Guatemalan victim
in the case, who told the judges that all she wanted to do was
find the remains of her husband and give him a proper burial.
According to Rivera Juaristi’s recollections, “There was not a
dry eye in the room.” To this day, the sight and sound of her
testimony remain embedded in his memory and give a human
face to the work of human rights litigation. After graduating
from WCL, he packed his car and drove to San José, Costa Rica,
to find a job at the IACtHR. After interning for six months with
the IACtHR, he was hired as a staff attorney and then promoted
to senior attorney, working on cases involving the worst forms
of human rights abuses.
In 2012 Rivera Juaristi became the founding Director of the
International Human Rights Clinic at Santa Clara University
School of Law. In the short months since the Clinic has been
up and running, his students have filed an amicus curiae brief
before the IACtHR in a case involving the absolute ban on in
vitro fertilization in Costa Rica, submitted recommendations
to the Inter-American Commission on Human Rights regarding
its reform process, and carried out two fact-finding missions in
Peru and Nicaragua regarding environmental and labor issues,
respectively. They continue to work on a host of other domestic
and international human rights issues, such as human trafficking
and freedom of speech for human rights defenders, and he said
this experience has been extremely rewarding.
Although he worked on cases involving many critical human
rights issues, including labor rights, indigenous rights, the use of
child soldiers, prison conditions, forced disappearances, torture,
the death penalty, and freedom of expression, Rivera Juaristi
recalls the case of the Saramaka People v. Suriname as one of
which he is particularly proud. The judgment obliged states to
consult with indigenous communities regarding development
projects in traditional lands and to ensure that environmental
and social impact assessments are properly carried out. Rivera
Juaristi said, “I am proud that we were able to build from previous jurisprudence and push forward on the issues of consultation
and environmental and social impact assessments so that corporations and governments can no longer ignore the human rights
and environmental concerns of the communities that are directly
affected by large-scale development projects.”
His advice for current law students interested in human rights
work is to get as much practical experience as possible. Rivera
Juaristi thinks that the best way to get this practical experience
is through internships and by enrolling in human rights clinical
programs. He encourages students to “talk to the people who do
the kind of work you would like to do; learn from them; learn
the skills necessary to be a professional and ethical advocate, but
most importantly, get out there and talk to the victims of human
rights violations. In the end, their stories and their struggles are
what will keep you moving forward.”
While at the IACtHR, Rivera Juaristi also served as the
Director of the Court’s Internship Program. He mentored interns
in the same way Tigar and Grossman had mentored him, and
he supervised the work of students and young attorneys in real
cases involving real victims. He continues to collaborate with
many of the interns that took part in the program at the Court.
68
ACADEMY ON HUMAN RIGHTS AND HUMANITARIAN LAW Human Rights Essay Award 2013
The Rights of Lesbian, Gay, Bisexual and Transgendered People and International Human Rights Law This annual competition seeks to stimulate the production of scholarly work in international human rights law. Awardees receive a full scholarship to attend the Program of Advanced Studies in Human Rights and Humanitarian Law of the Academy on Human Rights and Humanitarian Law. Articles may be published in the American University International Law Review. The deadline for submissions is February 1, 2013.
Premio al ensayo en derechos humanos 2013
Los derechos de las personas lesbianas, homosexuales, bisexuales y transexuales y el Derecho internacional de los derechos humanos Este concurso anual trata de estimular la producción de artículos académicos en derecho internacional de los derechos humanos. Los ganadores reciben una beca completa para asistir al Programa Avanzado Estudios Avanzados en Derechos Humanos y Derecho Internacional Humanitario de la Academia de Derechos Humanos y Derecho Internacional Humanitario. Adicionalmente, los artículos pueden ser publicados en el American University International Law Review. La fecha límite para enviar ensayos es el 1 de febrero de 2013.
Program of Advanced Studies in Human Rights and Humanitarian Law May 27 to June 14, 2013 ­ Three intensive weeks in Washington, D.C. Our program offers 18 courses taught by more than 40 internationally known human rights scholars and activists. Program is open to activists, lawyers, and students. Contact us at [email protected]. Programa de Estudios Avanzados en Derechos Humanos y Derecho Internacional Humanitario 27 de mayo al 14 de junio de 2013 ­ Tres semanas intensivas en Washington, D.C. Nuestro programa ofrece 18 cursos impartidos por más de 40 expertos reconocidos internacionalmente. El programa esta abierto a activistas, abogados y estudiantes. Contáctenos a [email protected]. www.wcl.american.edu/hracademy Marie Soueid, a J.D. candidate at the American University Washington College of Law and Managing Editor
of the Human Rights Brief, wrote this alumni profile.
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