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Human
Rights
Brief
Volume 20 | Issue 3 | Spring 2013
hrbrief.org
Articles and Features
2
Reflections on Uruguayan Law No. 18831 a Year After Its Enactment
18
Defining Myanmar’s “Rohingya Problem”
26
Identity and the Sexual Minority Refugee: A Discussion of Conceptions
and Preconceptions in the United Kingdom and Ireland
32
Perpetual Injustice: The Twenty-Year Battle for Reparations in Peru
37
Stealing the Islands of Chagos: Another Forgotten Story of Colonial Injustice
44
Interview with Laritza Diversent, Director
of the Cubalex Legal Information Center
50
Coverage of the 147th Period of Sessions of the Inter-American
Commission on Human Rights
Felipe Michelini
Benjamin Zawacki
Samantha K. Arnold
Aida Faverio and Anna Naimark
Claire Grandison, Seema Niki Kadaba,
and Andy Woo
Columns
56
Regions
69
Criminal Courts and Tribunals
75
Regional Human Rights Systems
80
Intergovernmental Organizations
Also in this Issue
82
Center and Faculty Updates
87
Book Review: He Weifang, In the Name of Justice: Striving for the Rule of Law in China
89
Alumni Profiles
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
Letter
Letter from
from the
the Editors
Editors
W
hen the Nuremberg trials began in 1945, hundreds of
journalists from more than twenty countries converged on
the proceedings, at times filling the 240 seats reserved for
reporters and spilling out into an overflow room. What people outside
of those rooms knew about the world’s first international trial for war
crimes and crimes against humanity was what they read in their daily
local newspapers or heard on radio broadcasts, reported by these men
and women who wrote “the first rough draft of history.”
When the Guatemalan trial of José Efraín Ríos Montt, on charges of
genocide and crimes against humanity, commenced in 2013, the landscape had changed entirely and the effect on furthering human rights
is incalculable. Although traditional media followed the trial, it was
methods of communication unimaginable in 1945 and new voices—
including the Human Rights Brief—that shaped and will continue to
shape our understanding of this first domestic trial for such crimes.
The Brief’s website, hrbrief.org, featured original analysis (in English
and Spanish) by Ali Beydoun, the director of the UNROW Human
Rights Impact Litigation Clinic, and Christina M. Fetterhoff, one of the
undersigned editors, who both observed the proceedings in Guatemala
City. The Brief’s analysis joined news and commentary online that was
updated with daily insightful work by experts and advocates across the
globe. For those seeking to further knowledge about the trial, including
the Brief, social media became a key source of communication.
These innovations in communications that the Brief is proud to have
joined are not just spreading more knowledge; they are contributing to the
strengthening of human rights across the globe. United States Supreme Court
Justice Robert H. Jackson and other Nuremberg prosecutors criticized U.S.
media coverage of the trials as failing to create a foundation of understanding
in the United States that led to skepticism of that process and international
criminal law in general that differs from European states. Expanding the scope
of information is one of the most powerful tools in combating this situation.
As Robert Goldstone, the chief prosecutor of the International Criminal
Tribunal for the Former Yugoslavia’s Tadić trial who supported cameras in the
courtroom, said, “If the international community is not told what we are doing
here—and particularly if people in the countries where they are victims do
not know what we are doing—there is no point in doing what we are doing.”
The globalization of information does not just raise awareness—
it more importantly gives greater control to the victims and the advocates supporting their rights. Twitter feeds, including the Brief’s, were
full of photos of victims that are still seeking justice. Organizations both
in Guatemala and across the world shared the stories of the victims and
allowed their story, not just the rulings of the judges and the arguments
by the lawyers, to be part of the first rough draft of history.
While the Brief’s online presence continues to grow, however, so too
do we continue to strengthen our publication’s roots, by presenting an
array of insightful articles on increasingly diverse topics. In this issue,
Felipe Michelini shares an analysis of Uruguay’s amnesty law and the
debates surrounding the historical legacy of the crimes committed by
that country’s last dictatorship. Benjamin Zawacki explores the situation
of the Rohingya population in Myanmar and the myriad human rights
violations perpetrated against them. Samantha K. Arnold considers the
difficulties faced by sexual minority refugees and asylum-seekers in
accessing adequate protections when fleeing their countries of origin.
Aida Faverio and Anna Naimark, WCL class of 2013 graduates and HRB
staff members, discuss the challenges faced by a Peruvian victims’ group
in getting their government to implement the reparations ordered by the
Inter-American Court of Human Rights. Finally, Claire Grandison, Seema
Niki Kadaba, and Andy Woo detail the decade-long involvement of the
UNROW Human Rights Impact Litigation Clinic in the search for justice
after the forcible displacement of the Chagos Islands inhabitants.
As we present this last regular issue of Volume 20 of the Brief, we are
proud of our staff for working tirelessly to be a part of harnessing new opportunities — and refining existing methods — to ensure that human rights
becomes a more important part of the global conversation. We humbly hope
that our
of the live
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Reflections on Uruguayan Law No. 18831
a Year After Its Enactment
by Felipe Michelini*
T
his article examines Law No. 188311 as a legal instrument
that fulfills its underlying purpose of aligning Uruguayan
national law with applicable legal standards established by
international human rights law. It presents an overview of some of
the criticisms that have been leveled against the law, and arrives
at the inevitable conclusion that Law No. 18831 is fully consistent
with international human rights law and the Constitution of the
Republic of Uruguay. Indeed, the rights, duties and guarantees
protected by the Constitution, by
definition, share the same objective
as international human rights law
because the substantive elements of
international human rights law have
been incorporated into Uruguayan
law by the Constitution.
nomen iuris given to the law is “Punitive Powers of the State,”
while the sub-heading reads “Restoration of punitive powers
for crimes committed in the application of state terrorism until
March 1, 1985.” The law was issued under the same title by the
Executive Branch of the government.
This law became valid and came into force the moment it
was enacted. It has not been put to referendum under Article 79
of the Constitution of the Republic of Uruguay,2 and is therefore
completely and absolutely applicable. It is equally binding on the
country’s Executive Branch and its
public prosecutors, especially as
part of their legal objectivity, as it
is on the Judicial Branch, particularly on the criminal magistrates’
courts when performing their
judicial functions. The questions
raised about the constitutionality
of the law have ended in proceedings leading to a Supreme Court of
Justice (SCJ) contradictory ruling.
It established the constitutionality of Article 1 and the unconstitutionality of Articles 2 and 3.
The text itself is short but unequivocal. It restores the
full exercise of the punitive powers of the State for
certain crimes that have been left unpunished between
December 22, 1986, and October 27, 2011: no time limit
of any kind can be applied any longer to halt their
prosecution whether it is procedural limits, statutory limits,
or an expiry date. Moreover, it declares that acts classified as
a crime are regarded as crimes against humanity in accordance
with the international treaties to which the Republic of
Uruguay is a Party.
The law is concise, clear, and
uncompromising, and its overarching
and explicit aim is to enable victims
or their relatives to seek justice
without the legal obstacle of the law
of impunity remaining in their way.
Particular attention will be paid
to the explicit reference which Law
No. 18831 makes to the legal category of “crimes against humanity.”
This paper will explain that this
category of offense has been introduced into Uruguayan law through a combination of customary
law, treaties, and case law. The widespread belief that this
category has only been recently incorporated into Uruguayan
law or that it is merely a doctrine is clearly misguided, as is
shown through an analysis of the laws governing “crimes against
humanity” in Uruguay. A thorough examination of the existing
legal structure in the country demonstrates that the category
“crimes against humanity” entered Uruguayan law decades ago.
The concept of crimes against humanity has been acknowledged in Uruguay since at least 1945. This article concludes that
the idea that implementing Law No. 18831 could compromise
the “non-retroactive nature of the most burdensome criminal
legislation” should be discounted since crimes against humanity had already been granted an undisputable legal status in
Uruguayan positive law before this law was passed.
The introduction of this law reflects the Legislative
and Executive Branches’ political will to take on the punitive
powers to prosecute the most serious crimes, which previously
fell under the so-called “expiry” clause in Article 1 of Law No.
15848.3 It puts the disgrace of the past behind it and is a
departure from the abominable Law No. 15848 on the Expiry
of the Punitive Powers of the State.
Finally, a discussion will be provided of the failing by Uruguay’s
highest judicial body in its ruling on the constitutionality of Law
No. 18831.
The law brings Uruguay’s legislation into line with the
Supreme Court of Justice’s firm ruling in the Sabalsagaray4 case
and its broad interpretation of Article 72 of the Constitution.5
It also harmonizes the legal system with international human
rights law in general and, in particular, with the Inter-American
System of Human Rights. It abides by the judgment passed down
in February 2011 by the Inter-American Court of Human Rights
in the Gelman v. Uruguay case, which declared that Uruguay
had failed to comply with its obligation to adapt its domestic
Background
Just over a year and a half has passed since the Uruguayan
Government enacted Law No. 18831 on October 27, 2011. The
* Dr. Felipe Michelini is a lawyer, a human rights law professor on
the faculty of the Universidad de la República, and a member of
Parliament in Uruguay.
2
law.6 Uruguay could not—if it wanted to comply with this part
of the judgment—ignore the requirement to adapt its law. It is
clear that the Inter-American Court was more concerned with
the outcome of adapting Uruguayan law and not necessarily the
specific legal means used to effect a change.
argument that maintains that this law is merely an abusive
attempt at revenge by a circumstantial parliamentary majority is unsubstantiated and easily discounted. Challenging the
law is a political tactic and in terms of the effect of the legal
interpretation of the law, will be irrelevant. The type of revenge
which is being advocated is somewhat peculiar, in that it has
led those under suspicion of having committed heinous acts to
be prosecuted under due process guarantees while having their
opinion included in the debate surrounding the law, since their
defense lawyers took part in the Advisory Committees of the
Legislative Branch. In contrast, none of the victims were granted
these procedural guarantees.
The law is concise, clear, and uncompromising, and its
overarching and explicit aim is to enable victims or their
relatives to seek justice without the legal obstacle of the law
of impunity remaining in their way. In the absence of punitive
powers, the gross and systematic violations of human rights,
including the right to life, freedom, and personal integrity, which
were carried out in a planned manner and included kidnapping,
murders, extrajudicial executions, torture, sexual abuse, rape,
and prolonged detention, are made worse by the denial of justice
and the state’s extreme lack of suitable and effective resources
to make reparations, and where possible mitigate the serious
violations of human rights.
Although this criticism can be easily discounted, others have
affirmed that the law breaches fundamental principles of human
rights law and criminal law. Both categories of law have a long
tradition in our political and legal history, yet this did not stop
the state as a whole from committing serious crimes against
humanity during the military regime.
All of this occurred against a backdrop of state terrorism
within Uruguay’s borders and outside them as part of the
campaign of illegal repression waged in coordination with
other states between 1973 and 1985, and in the years preceding.
Furthermore, the right to an effective legal remedy, which
enables a victim to seek unrestricted protection from an
independent and impartial judicial body, was prevented first
through actions and then by law. Impunity was strengthened and
reaffirmed by the 1986 Expiry Law and its enforcement, interpretation, and implementation. The Executive Branch amended
the previous approach to impunity, while the rulings of the
Supreme Court of Justice in 2009 and the Inter-American Court
of Human Rights in 2011 definitively set justice back on course.
The apparently formal and technical challenges, which
have generally been made in good faith, have raised doubts
and questions. These questions do not interpret Law No. 18831
correctly as a legal instrument which has conquered impunity
in the country. Even leading figures whose lives have been
committed to fighting impunity have not vigorously upheld this
law, because there has been an acceptance that it contains flaws
which make it difficult to defend and that there are weak points
in the extrajudicial aspects involved in proposing, debating, and
approving the law. This is a huge paradox since the law has been
welcomed by the international community, including by both
inter-governmental and non-governmental bodies, as extremely
promising proof of the way in which regional and national
systems can benefit greatly from the fight against impunity and
affirm the rule of law.7
However, despite the commendable objective of introducing
Law No. 18831, the law’s text itself was challenged, and various
attempts were made to deprive the law of its legitimacy, thereby
undermining claims for the effective enjoyment of the right
to justice. It is clear that the Expiry Law, its validity, application, and interpretation provided the legal basis and excuse to
establish a State founded on impunity as the pillar of Uruguayan
society. Upholding Law No. 18831, and by doing so defending
the legal and legitimate powers which it grants to the State to
exercise its punitive powers to investigate, clarify the facts,
prosecute those responsible and if found guilty hand them the
appropriate sentence as established by criminal law, is critical
for honoring the victims of State terrorism and strengthening
quality democratic institutions.
Related Issues
It should be clarified from the outset that Law No. 18831
is completely and absolutely consistent with the democratic
republican form of government in place in Uruguay and is
therefore totally and absolutely compatible with the upholding of and protection of human rights. Under this system, the
government’s legitimacy is exercised by virtue of rules laid down
in the Constitution itself and public authorities cannot lawfully
go beyond what is provided for by law when fulfilling their
duties, and should also do so in full respect of human dignity.
By this logic, a democratic society is promoted, which places
the full enjoyment of rights and full respect for human rights at
its core, and which also makes every possible reparation to the
victims and their families, alleviates their pain, and guarantees
that state terrorism will never happen again.
The Constitution itself defines the content of Sections I
and II as the “fundamental basis of the nation;” these sections
include Article 7 on the protection of certain rights,8 Article
72 on rights which are inherent to human beings or which
are derived from a republican form of government,9 which
are recognized and enshrined in Article 332, which states
that individual rights, as well as powers conferred and duties
imposed on public authorities, shall not cease to apply because
of the lack of corresponding regulation.10
Criticisms of Law No. 18831
The criticisms leveled at Law No. 18831 have come from a
number of different angles and perspectives; some have been for
the sake of political convenience, while others have focused on
more technical issues.
A law such as No. 18831, which states that it ensures the
substantive content of the Uruguayan legal system, must be
compatible with the Constitution and conducive to the protection of the human person, which is the underlying purpose of
Like any legal instrument, it can by its very nature be
challenged, debated, or improved. A biased and uninformed
3
a constitution. This applies when claiming the intrinsic legitimacy of a law enacted by the Legislative Branch, or when opting
for a stricter interpretation of a law when verifying its constitutionality in comparison with the Constitution. This is known in
legal theory as the constitutional interpretation of the law.
principle of criminal law, since statutory limitations are not
classified as an absolute and universal principle.12
Furthermore, under the Uruguayan legal system statutory
limitations are a legal mechanism, although they are not included
in the constitution, but national law. This means that extending
such limitations, as in Article 2 of Law No. 18831, does not
infringe any constitutional principles with national effect or any
international instruments protecting human rights. Other laws
concerning changes to time limits in force in our domestic legal
system are clear evidence of this. These have been accepted over
time by and without challenge from legal theory and all administrators of law, including magistrates, public prosecutors, defense
lawyers, and legislators. Indeed, two laws, No. 1575213 and No.
16529,14 which were passed during the period of democracy
that began in 1985 suspended and amended the prescription and
limitation periods. This is all the more important when the passing and enacting of this law has the clear objective of meeting
international standards for upholding human rights in general
and, more specifically, when the Uruguayan State is under the
obligation of complying with a legal ruling.
The law being scrutinized in this paper compensates for the
situation in which, counter to every legal principle, the following
could be declared: “as a consequence of the logic of the events
stemming from the agreement between the political parties and
the Armed Forces […] the punitive powers of the State have
hereby expired”.11
This law can and, according to the Supreme Court of Justice
and the Inter-American Court of Human Rights, must undoubtedly
restore the full exercise of punitive powers, all the more-so
given that these crimes were committed by State officials, who
consistently, grossly, and systematically manipulated the state
organization with serious consequences for the rights of their
victims. No damages can be recovered from restoring the State’s
punitive powers per se by appealing to the legal source which
granted these powers. In addition to lacking any defects, the
law in question re-instates the major failing of Uruguayan law
which granted impunity to the crimes listed in Article 1 of Law
No. 15848.
In spite of popular hearsay, criminal law is non-retroactive
in no more than two specific circumstances: when new classifications of offences are introduced or when a penalty is
made stricter. The International Covenant on Civil and Political
Rights states this explicitly15, as does the American Convention
on Human Rights.16 The historic provisions of the Uruguayan
Constitution do not introduce any innovative elements in
this respect. The Constitution issues the highest legal guarantee
that there is no punishment without crime and there is no crime
without law, by stating in the second point of Article 10 that
no one shall be obliged to do what the law does not require, or
prevented from doing what it does not prohibit.17 The Criminal
Code makes this explicitly clear.
Retroactive Law
If the State carries out an action according to specific criteria
for judging behavior, it is maintained that applying criminal law
retroactively is both unlawful and contrary to human rights. It
is therefore rightfully claimed that flagrant violation of these
basic tenets would not be in accordance with the law, even with
the best intention of protecting rights. On this basis, we must
accept that legal norms must be enforced over time under a
specific regulatory framework, and this must be shown to be
compatible with the legal instruments which are to be applied
to past actions.
The first point of Article 10 makes it expressly clear that
private actions of persons which do not in any way affect the
public order or prejudice any third party fall outside the jurisdiction of the magistrates. It must be stressed that the incidents
that took place between 1968 and 1985, namely kidnappings,
the suppression of children´s identities, torture, summary or
extrajudicial executions, forced disappearances, rape or sexual
abuse, cruel, inhumane or degrading treatment of defenseless
people by public officials, as part of a systematic campaign of
illegal repression cannot have fallen outside the remit of the
magistrates. Even under the legal framework of a state terrorist
regime, these acts came under categories of various criminal
offenses that existed in laws in force at that time. The assertion
that Law No. 18831 makes criminal law retroactive is, therefore,
clearly false.
There is no explicit reference to the temporal validity of
laws, although common sense would suggest that laws obviously apply from the moment they are enacted. The question is
whether a law can be applied to actions performed in the past
and give them a certain legal effect in the future. Legal norms
can be, and are, laid down as laws which often apply to past
events, imposing a legal status and effect in the future. This is
entirely possible and is much more common than expected; for
example, taxes are levied on past actions, capabilities acquired
in the past are recognized when regulating the exercise of a
professional activity or prohibiting others from practicing it, and
pension and retirement benefits are acknowledged in the future.
It can be argued that retroactivity is much more restricted
when concerning criminal matters, in which nothing, it is
claimed, can have retroactive effect, unless it would benefit
the offender. In addition to being somewhat sympathetic, this
generalization is not technically correct. The procedural limits,
limitation periods, or expiry dates, as well as the kind of trial
or rules of evidence are not protected by this allegedly general
principle. Schurmann Pacheco confirms this by stating that the
non-applicability of statutory limitations does not violate any
It is however stated that these were considered to be ordinary
crimes and that they did not qualify as crimes against humanity, since this is an altogether more serious category of crime
because statutory limitations are not applicable to them, whereas
ordinary crimes are subject to these time limits. This is a strange
rationale, given that the position of public official held by the
offender, the scale of the crimes perpetrated, and the elimination
of the system guaranteeing legal order, which included a coup
d’état, the removal of the Parliament and the limiting of the
judiciary´s power to its absolute minimum, far from increasing
4
criminal responsibility, exempted the offenders from being held
responsible for all crimes committed.
of international law (jus cogens) which is built up
gradually in the public conscience and externalized in
conventions, declarations and international case law,
which demonstrate the will to repress actions which
violate the inherent values of humanity as a whole,
such as a massive assault on human dignity.
A first conclusion to be drawn from this analysis is that Law
No. 18831 does not create new classifications of offenses or lay
down heavier punishments, and, therefore, the legislator has not
departed from its legal mandate in any way and the law is fully
and completely constitutional and conducive to the upholding of
human rights.
Crimes against humanity are separate from other
international crimes, including war crimes and crimes
against peace.
The Category of “Crime against Humanity”
The domestic courts where a “crime against humanity”
is committed have the competence to try those responsible, and under no circumstances will the plea of
obedience to superior orders exonerate offenders from
responsibility.”19
The category of crimes against humanity includes acts such
as torture, political assassinations, and forced disappearances,
and committing such crimes brings the following legal consequences: crimes against humanity are not subject to statutory
limitations, there is no chance of being granted an amnesty,
claiming obedience to superior orders is not considered a viable
defense for such crimes, political asylum is not granted, and the
accused will be prosecuted or extradited by the State in which
they are found.18
In his reasoned opinion in the Inter-American Court case
of Almonacid v. Chile, the Brazilian judge Antônio Augusto
Cançado Trindade summarizes a concept which demonstrates
the seriousness of crimes against humanity:
. . . at the dawn of International Law, basic principles
of humanity were applied to govern the conduct of
the States. What in time became known as “crimes
against humanity” derived, originally, from Customary
International Law, and later conceptually developed
under International Humanitarian Law, and, more
recently, under International Criminal Law. Here, we
are in the realm of jus cogens, of peremptory law. When
human beings fall victim to such crimes, humanity as
a whole is likewise victimized. This has been expressly
recognized by the ICTY (in the Case of Tadić, 1997);
such crimes affect the human conscience (ICTY, Case
of Erdemović, 1996), the universal juridical conscience,
and the aggrieved persons as well as humanity itself
fall victim to them. This line of analysis developed
by International Humanitarian Law and contemporary
International Criminal Law must, in my view, be incorporated into the conceptual universe of International
Human Rights Law . . . . 20
It is claimed that the decision by a legislator to classify a type
of conduct as a “crime against humanity” by means of a legal
provision is actually an indirect way of removing the apparently
insurmountable obstacle to prosecute criminal offences retroactively. This is a fallacious and unfounded argument. The sources
of law available to the international community to criminally
prosecute the most grave of crimes committed are not limited
to a state’s domestic laws, in this case Uruguayan law. If this
were the case, a system of universal human rights, as upheld by
the Republic of Uruguay, would be unsustainable, in that legal
decisions would be left to discretion and making amendments
to domestic law.
The declaration that the revolting attacks on our nation
and breaches of our domestic law, as inferred from Article
72 of the Constitution, constitute crimes against humanity
in accordance with the provisions of international treaties to
which Uruguay is a signatory, does not affect any constitutional
principle in any way. On the contrary, it reaffirms the principles
of the Constitution.
This rationale helps in understanding the logic behind the
very last article of the Universal Declaration of Human Rights,
which expressly states that “nothing in this Declaration may be
interpreted as implying for any State, group or person any right
to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.”21
The prohibition of certain behaviors known as crimes against
humanity and a state’s obligation to prevent them from occurring
and, if cases do arise, to investigate the crimes and punish those
responsible, have been incorporated into international human
rights law by a three-way legal source that is binding on the
Republic of Uruguay: customary law, treaties, and case law. Any
principle that has become part of international public order when
these obligations have been imposed invalidates any contrary
agreement or action that goes against it (jus cogens).
The second point of Article 15 of the International Covenant
on Civil and Political Rights, which was ratified by Uruguay
in 1969 and in force since 1976, mirrors this idea, after stating
that criminal law is not retroactive, by affirming that “nothing
in this article shall prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of
law recognized by the community of nations.”22 Uruguay did not
object in any way to this article.
Dr. Oscar López Goldaracena summarizes the evolution
of the concept of crimes against humanity as follows:
The systematic practice of torture, disappearances and
politically motivated murders which are ideologically
based on the concept of national security and committed
by Latin American military dictatorships constitute
“crimes against humanity.”
The clause on restrictions regarding the interpretation of the
American Convention on Human Rights applies the same argument, disallowing justification for violations of the Convention
The acceptance of this concept has been brought
about by the authority of a supranational standard
5
that would suppress the enjoyment of the rights and freedoms
enshrined within.23
The Republic of Uruguay freely and voluntarily became a
party to the London Agreement, as provided for in its Article
5. It endorsed the concept of crimes against humanity reflected
in this international treaty before the international community
(CIMT, Article 6(c)) concerning offenses that have no particular
geographical location (LA Article 1), and also accepted that this
agreement shall not prejudice the jurisdiction or the powers of
any national court (LA Article 6). In doing so, Uruguay explicitly acknowledged the legitimacy of that court, its judgments and
sentences, and took on the punitive powers to prosecute these
serious crimes if it so decided.
Unambiguous case law concerning these issues must be
added to the argument of the authority of customary law, which,
as has been shown, is backed up by specific parts of the relevant
treaties. In the case known as La Cantuta, the Inter-American
Court of Human Rights unequivocally ruled that exonerations
of criminal responsibility were inconsistent with the American
Convention on Human Rights.24 A ruling by the same court
on a case concerning Chile under Pinochet’s rule established
specific criteria for classifying crimes against humanity and
attached particular importance to the Nuremburg Principles in
assessing the conduct by the State Party in the events following
the overthrow of President Allende.25 It also reaffirmed the
concept of state responsibility in crimes against humanity.26 The
ruling against Uruguay in the Gelman case affirms this basis in
case law by laying down that the non-retroactivity of criminal
law is not a legitimate excuse for not fulfilling the obligation to
investigate and punish those responsible for gross violations of
human rights.27
The CIMT text is straightforward: Article 6 […](c) Crimes
Against Humanity: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any
civilian population, before or during the war; or persecutions on
political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country
where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or
conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such
plan. Furthermore, the impact of the work of the International
Military Tribunal, as well as the tribunal convened in Tokyo
and other justice tribunals, made it possible for the United
Nations General Assembly to adopt Resolution 95,32 known
as the Nuremberg Principles, which would continue to be
developed within the United Nations by the International Law
Commission, a UN subsidiary body.33
Likewise, the Inter-American Commission on Human Rights
explicitly stated that in the cases brought against the Duvalier
regime in Haiti that this country already had obligations in relation to crimes against humanity before this government came
to power, since these crimes were already part of jus cogens.28
However, in spite of this strong argument and in view of the
specific implications for Uruguay in the Gelman ruling, attempts
are made to undermine it. Although they maintain that they are
in favor of criminally prosecuting and punishing the perpetrators of these heinous crimes, some claim that under Uruguayan
law crimes against humanity are merely an expression of legal
doctrine. They view it as necessary and important to include
crimes against humanity in Uruguayan law, but this amounts to
little if trying to exercise punitive powers has no practical effect
whatsoever. According to these claims, we are fierce advocates
for the literal interpretation of the law, and only take account of
positive law and accept only textual arguments, namely legal
norms laid down in a formal and unquestionable legal source.
According to the claim of the legal continuity of the State,
the Oriental Republic of Uruguay is the same international legal
subject that ratified the treaty. How, therefore, is it possible for
Uruguay to endorse the ethical, political and legal legitimacy
of courts to try Nazi criminals, yet at the same time, not wish
to exercise punitive powers in relation to events which have
affected its own people?
Uruguay legally and conceptually ratified the criminal
category of crimes against humanity in 2001, when, five
decades after adhering to the London Agreement, it ratified the
Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes Against Humanity, without making any
reservations. The preamble to the convention adopted in 1968
recalls all relevant United Nations General Assembly resolutions, particularly the London Agreement which established the
International Military Tribunal, whose first trial was held in the
city of Nuremburg.
But the argument put forward time and again which seeks to
undermine the value of customary and case law overlooks the
fact that the classification of crimes against humanity was not
recently introduced in Uruguay. Far from being a new category
of crime invented by a frenzied mind, crimes against humanity
are a long-standing concept in Uruguayan domestic law.
Indeed, Uruguay is one of the nineteen29 States which adhered
to the 1945 London Agreement for the prosecution and punishment of the major war criminals of the European Axis.30 This
agreement made between the victorious powers of the Second
World War established the institutional framework for trying war
criminals and setting up an International Military Tribunal. This
tribunal would later be known as the Nuremberg Tribunal, as the
first trial was held there, although technically the legal source
for establishing the court was the London Agreement. Uruguay
adhered to the London Agreement, which comprises the Charter
of the International Military Tribunal (CIMT),31 which defines
crimes against peace (now known as crimes of aggression), war
crimes and crimes against humanity.
In addition, Uruguay ratified the 1949 Geneva Convention,
whose Common Article 3 establishes that in the case of
“Conflict not of an international character,” the following are
completely outlawed with respect to persons taking no active
role in hostilities: actions which prejudice life and personal
integrity, murder of all kinds, mutilation, cruel treatment and
torture. The applicability of this prohibition at all times and in
all circumstances obliges the State to adopt legislative measures
to hand down appropriate criminal punishments to those who
perpetrate these crimes or give orders to others to commit them.
6
Uruguay ratified the Inter-American Convention on Forced
Disappearance of Persons without any reservations in 1995.
The preamble to the convention clearly established that forced
disappearance is a crime against humanity. The provisions of
the convention confer an obligation on the State signatories to
define forced disappearance as an offense and deem it as continuous or permanent as long as the fate or whereabouts of the
victim has not been determined and that the criminal prosecution of such crimes shall not be subject to statutes of limitations.
It also states that the Convention
shall not be interpreted as limiting
other treaties signed by the parties.
seeking justice. By endorsing the constitutionality of the first
article of the law but declaring the second and third articles as
unconstitutional, the judgment loses all logical sense. A relative
of a murdered victim of torture, who was delivered a sealed coffin and prohibited from opening it, could not report these crimes
during the dictatorship; then followed the expiry law and when
punitive powers are finally restored, they are told that their right
to seek justice has expired. What logic is there behind endorsing
and affirming the constitutionality of Article 1, if only to then
make it absolutely ineffective?
The court makes no effort to
identify the conflicting values, the
value to society of finding out the
truth by legal means, the victim’s
right to have their rights protected or
the right of the accused to be treated
in accordance with the Rule of Law.
In 2002 the Statute creating
the International Criminal Court
for the prosecution of the most
heinous crimes such as genocide,
war crimes, crimes against humanity and of aggression was ratified.
Under the Statute, a permanent,
impartial, and independent court is
created which, as it is complementary to national criminal jurisdictions, will try offenders accused of
crimes which the States cannot or do not wish to prosecute from
the moment that the Statute comes into force. The Statute governs the actions of the Court created when it came into force, but
it does not exempt States from the obligations that it may have in
terms of conventional or customary laws or passing judgments.
This provision is enshrined in Article 10 of the Statute34 and
repeated in Article 22 when referring to the general principles
of criminal law.35
The only argument made by the
SCJ is that the article violates the
principle of the “non-retroactivity
of the most burdensome criminal
law”. The problem that must be
overcome is that no article of the
Constitution mentions statutory
limitations or the non-retroactivity
of the law in general, nor does it
make explicit reference to criminal
law.
What follows is a battle of
principles against the concept of
the non-retroactivity of the most burdensome criminal law, a
principle which has been resolutely upheld. The court makes no
effort to identify the conflicting values, the value to society of
finding out the truth by legal means, the victim’s right to have
their rights protected or the right of the accused to be treated in
accordance with the Rule of Law.
The majority of the members of the SCJ defended this
principle as singular, exclusive and unique to the Constitution,
despite punitive powers never being exercised fully. Article 7
of the Constitution40 is ignored, namely the right of protection
in the enjoyment of rights which are complemented by Article
72.41 The SCJ reached this judgment following an incomplete
reading of Article 1042 of the Constitution and, in absence of
other arguments, it based its decision on another more inferior
law, the Criminal Code, which contains the same principles as
the contested law.
The Ruling of the Supreme Court of Justice
Uruguay’s Supreme Court of Justice (SCJ)36 recently passed
its judgment on the constitutionality37 of Articles 1, 2 and 3 of
Law No. 18831.38 The decision has had major repercussions and
how it will affect on-going cases is still unknown.
The five members of the SCJ unanimously declared that
Article 1 was constitutional. It protects public prosecutors
and magistrates in any case involving actions that seems to
correspond to those crimes referred to in Article 1 of Law
No. 15848. Public prosecutors or magistrate judges cannot find
justification in the Expiry Law for not performing their tasks
and no investigation can be interrupted or shelved by invoking
this law. When conducting investigations no restriction will be
placed on them, such as having to seek the Executive Branch’s
permission as established in the Expiry Law, and which was
invoked as an exclusive and specific matter for the Judicial
Branch. The Executive Branch could not legally take on any
power to remove material from the Legal Branch which was not
exclusive. The restoration of full punitive powers enables the
State to comply with the judgment in the Gelman v. Uruguay
case. In contrast to Article 1 of Law No. 15848, the court ruled
that the State had not fully exercised its punitive powers in relation to crimes committed during the campaign of state terrorism.
By failing to include the victims’ right of enjoyment in its
judgment, the SCJ makes it possible for the human person to
be subjected to an attack, not by an individual person, but by
a criminal organization which had usurped public powers and
used all the powers of the State to assassinate, force people
to disappear and torture the inhabitants of the Republic. The
State was then protected for twenty years by the illegal notion
of the “expiry” of the State’s punitive powers, as the SCJ itself
acknowledged. When the law did then make it possible to seek
justice, victims were told that the time limit for exercising this
right had expired, without any article from even the Magna
Carta being presented as evidence that this law was in any way
inconsistent with the Constitution.
The inconsistency of this ruling with international law is also
glaringly obvious. It adheres strictly to the principle of the legal
status of the “non-retroactivity of the most burdensome criminal
law” and the value of domestic law. More fitting of a Nineteenth
Century vision of sovereignty, the SCJ stated the following:
By a majority of four to one, the SCJ declared that Article 2
of Law No. 18831 was unconstitutional;39 this article arose from
the lack of full punitive powers, which prevented victims from
7
Conclusion
If difficulties with the substance are not encountered
when incorporating the standards provided for in the
American Convention on Human Rights into domestic
law, it is debatable, in terms of procedural guarantees,
if the judgments and opinions of the Inter-American
Commission on Human Right are able to create
exceptional situations which are directly applicable
by the Uruguayan courts: the guarantee arising from
the principle of legality and the prohibition of the
retroactive application of the burdensome law, as well
as from the protection of legitimate expectations and
legal certainty provided for by the constitutional rule of
law in the text and the spirit of the Charter, is opposed
to broad interpretations.43
It has been shown that Law No. 18831 does not breach any
basic principle of the Uruguayan legal system, but rather legally
reaffirms the basic pillars of our national Constitution, which
enshrines the right to enjoyment of certain rights.
Furthermore, this legal instrument is entirely compatible with
international human rights law. It allows the Uruguayan State to
transpose all aspects of international human rights law, including
the law and its punitive nature, to guarantee the protection of the
dignity of the human person. Access to adequate and effective
resources or mechanisms for the protection of human dignity is a
substantive component of international human rights law, all the
more so in cases involving “crimes against humanity.”
Law No. 18831 does not undermine the “non-retroactivity of
the most burdensome criminal law,” since the category of crimes
against humanity had already been awarded unambiguous
legal status in Uruguayan positive law
by customary law, the treaties ratified
by the State and international case law
at least five decades before the crimes
that are subject to Law No. 18831 were
committed. The SCJ loses sight of the
Constitution as a whole and disregards
any compatible and proper interpretation of its provisions, although it should
accept these interpretations because
of their legitimacy. It forgets that the
Constitution does not merely set out
limits of what is permissible, but that it expresses the established
values that are relevant to the legislator, the judge and administrator, and which may be regulated by law when doubts remain
about the values of life and when protecting against the most
heinous crimes.
It does not refer to jus cogens or case law, overlooks the
tribunals of Nuremberg, Tokyo, Rwanda and former Yugoslavia,
the many previous cases in the region and the case law of the
Inter-American Commission on Human
Rights and the International Court of
Justice.
The majority of the members of the
SCJ, four to one, also deemed Article 3
to be unconstitutional.44
The SCJ judgment shows
a complete lack of empathy
for the victims of the most
horrific and hideous crimes
in the history of Uruguay.
Putting forward impunity as justification for its ruling meant that the SCJ did
not identify the treaties which Uruguay
had signed that define crimes against
humanity, offenses which had been acknowledged long before
the start of the dictatorship. The ruling does refer to the Statute
of Rome, which established the International Criminal Court,
and two domestic laws introduced in 2002 and 2006, one of
which ratified the Statute and the other a complementary law
on cooperation with the International Criminal Court. It does,
however, overlook the treaties which Uruguay has ratified such
as the 1970 Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity, which
Uruguay accepted without any reservations, the 1945 London
Agreement establishing Nuremberg and the two 1949 Geneva
Conventions and their Common Article 3 and the additional
protocols of 1985.
Law is not immune to emotions. The SCJ judgment shows
a complete lack of empathy for the victims of the most horrific
and hideous crimes in the history of Uruguay.47 Many became
victims because a small number of people, protected by their
public status and during the exercise of their public duty,
seized the powers of the State and destroyed the institutions,
perverted the functions of the State and perpetrated all types
of crimes, including kidnapping, rape of both men and women,
summary executions, forced disappearances, systematic torture
and prolonged imprisonment as part of the campaign of illegal
repression waged in coordination with other States in the region
known as Operation Condor. Then, in an act of violence and
blackmail and under the threat of a coup d’état, lawmakers were
obliged to vote in favor of the law on the expiry of punitive
power, as stated in the 2009 Supreme Court of Justice judgment
and the Inter-American Court of Human Rights’ ruling in the
Gelman case.
The SCJ did not take account of Article 239 of the
Constitution45, which obliges the SCJ to prosecute crimes
against the law of the nations, nor did it consider Article 10 of
the 1934 Criminal Code, which makes explicit reference to the
international conventions.46
What exactly is unconstitutional about the lawmaker establishing that certain conducts must be interpreted in accordance
with the international treaties that Uruguay has signed, and
establishing that these actions must be classified as crimes
against humanity? What constitutional principle does it violate?
The SCJ has not put forward any other arguments except from
the alleged non-retroactivity of the law, which this article has
shown lacks any grounds.
Those of us who believe in the truth, memory, and justice
will continue working to make this a reality and honor our
inescapable and irrevocable commitment to the victims and
future generations.
8
Endnotes
1
21
Law No. 18831, enacted on 27 October 2011 and published
in the Official Journal 1/11/2011.
2 Art. 79 ¶ 2, Constitution of the Republic of Uruguay.
(http://pdba.georgetown.edu/constitutions/uruguay/ uruguay04.html)
(last visited 06/09/2013).
3 Law No. 15848 published in the Official Journal on 31
December 1986.
4 Judgment No. 365 of the Supreme Court of Justice—
Sabalsagaray Curutchet, Blanca Stella Maris—case of Nibia
Sabalsagaray, 19 October 2009. File 97-397/2004. IMPO–MEC
Publication.
5 Art. 72, Constitution of the Republic of Uruguay.
6 Gelman v. Uruguay, Merits and Costs, Inter-Am. Ct. H.R.
(ser. C) No. 221, ¶ 312 (Feb. 24, 2011).
7 “First of all, the Inter-American Commission welcomes
Uruguay’s enactment, on October 30, 2011, of Law No. 18.831,
which states that the crimes committed during the dictatorship are
not covered by statutes of limitation. In its first article, the new
law “restores the full exercise of the State’s punitive powers” for
the crimes covered by the Expiry Law of the Punitive Powers of
the State [Ley de Caducidad de la Pretensión Punitiva del Estado],
of December 22, 1986. With the new law, Uruguay has made significant progress toward complying with the recommendations in
Report No. 29/92—approved by the IACHR on October 2, 1992—
and the judgment handed down by the Inter-American Court of
Human Rights in the Juan Gelman case.” http://www.oas.org/en/
iachr/media_center/PReleases/2011/117.asp;
Uruguay: Congress adopts landmark law to tackle impunity
http://www.amnesty.org/en/news-and-updates/uruguay-congressadopts-landmark-law-tackle-impunity-2011-10-27;
Uruguay makes progress in launching legal initiative to guarantee
justice for crimes against humanity committed during the military
dictatorship http://cejil.org/noticias?page=1 [available in Spanish
only].
11 Law No. 15848, Article 1.
12 Schurmann Pacheco, R. Principles of legality and of nonretroactivity and the institute of prescription, No to impunity,
Yes to justice, pag. 170 CIJ Geneva, 1992.
13 Law No. 15752. DO Nº 21.969–2/07/1985.
14 Law No. 16529. DO Nº 24.112—17/08/1994.
15 International Covenant on Civil and Political Rights, GA
res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc.
A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967), art. 15(1).
16 Organization of American States, American Convention on
Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S.
123, art. 9.
18 Artucio, A. Impunity and international law. No to impunity, yes
to Justice, p. 201, Commission of Internationl Jurists, Geneva, 1992.
19 López Goldaracena, International Law: Crimes against
Humanity, pag. 58, Fundación de Cultura Universitaria,
Montevideo, 2008.
20 Almonacid Arellano et al v. Chile. Preliminary Objections,
Merits, Reparations and Costs, Inter-Amer. Ct. H.R. (ser. C) No.
154 (Sept. 26, 2006), concurring opinion of Judge A.A. Cançado
Trindade, ¶ 28.
Universal Declaration of Human Rights, GA res. 217A (III),
UN Doc A/810 at 71 (1948), art. 30.
22 Supra note 15.
23 Supra note 16, art. 29.
24 La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Amer.
Ct. H.R. (ser. C) No. 162 (Nov. 29, 2006), ¶ 226.
25 Supra note 20, ¶ 96.
26 Id., ¶ 151.
27 Supra note 6, ¶ 254.
28 Statement on the Duty of the Haitian State to Investigate the
Gross Violations of Human rights Committed during the Regime
of Jean-Claude Duvalier, 17 May 2011, ¶ 10.
29 List of countries which adhered to and ratified the London
Agreement establishing the International Military Tribunal
(http://treaties.un.org/Pages/showDetaisl.aspx?objid=
08000002801572a2) (last visited 05/31/2013).
30 London Agreement establishing the International Military
Tribunal (http://avalon.law.yale.edu/imt/ imtchart.asp) (last visited
05/31/2013).
31 International Military Tribunal Charter (http://avalon.law.yale.
edu/imt/imtconst.asp).
32 G.A. Res. 95, U.N. GAOR, 1st Sess., U.N. Doc. A/141 (1946).
http://www.un.org/spanish/documents/ga/res/1/ares1.htm
33 Principles of Intl. Law Recognized in the Charter of
the Nürnberg Tribunal and in the Judgment of the Tribunal
(http://www.derechos.org/nizkor/nuremberg/nprinciples.html)
34 Statute of Rome, UN Doc. A/CONF. 183/9; 37 ILM 1002
(1998); 2187 UNTS 90, art. 10.
35 Id., art. 22.
36 Art. 257, Constitution of the Republic.
37 Unconstitutionality can occur for reasons of form or substance.
According to this hypothesis, the SCJ should have assessed
whether a conflict existed between the law under scrutiny and the
Constitution of the Republic. A logical legal judgment of whether
two laws, one of which is of higher legal standing, are compatible
with one another should prevail.
38 Supreme Court of Justice, judgment No 20 “M.L., J.F.F., O. —
Denuncia” IUE 2-109971/2011, on Articles 1, 2 and 3 of Law No.
18831–22 Febrero 2013.
39 Law No. 18831, Art.2.
41 Id., art.72.
42 Id., art. 10.
43 Supreme Court of Justice, judgment No. 20 “M.L., J.F.F., O. —
Denuncia” IUE 2-109971/2011, on Articles 1, 2 and 3 of Law No.
18831–22 February 2013, p. 23.
44 Law No. 18831, Art. 3.
46 Uruguayan Criminal Code, Art. 10 (http://www.parlamento.gub.
uy/Codigos/CodigoPenal/ Cod_Pen.htm) (last visited 06/09/2013).
47 This ruling by the SCJ and other incidents such as the unexplained transfer of Dr. Mariana Mota, who is one of the few
magistrate judges who had publicly stated her will to move forward
with the investigations, and the SCJ´s refusal to clarify this matter
before Parliament, show the persistence, consistency and force of
impunity in Uruguay.
9
La ley Nº 18.831. Reflexiones a un año de su promulgación.
por Felipe Michelini*
E
ste artículo analiza la Ley Nº 18.8311 en términos generales como una norma que cumple su propósito explícito
de adecuar el derecho nacional a los estándares jurídicos
establecidos por el Derecho Internacional de Protección de los
Derechos Humanos que rigen para nuestro país. Se pasa revista a
algunas de las críticas que la norma ha recibido, concluyéndose
sin dificultad que la Ley Nº 18.831 concuerda cabalmente con el
Derecho Internacional de Protección de los Derechos Humanos
y con la Constitución de la República. En efecto los derechos,
deberes y garantías que esta protege, por
definición tienen el mismo fin en tanto la
Carta incorpora al derecho nacional, los
contenidos sustantivos de aquel.
la misma. El cúmplase de estilo por parte del Poder Ejecutivo,
utiliza idéntica denominación.
La ley es válida y está vigente desde el momento mismo de
su promulgación. No ha sido objeto de recurso de referéndum
alguno de acuerdo al artículo 79 de la Constitución de la
República,2 y por ende es total y absolutamente aplicable. Se
impone tanto al Poder Ejecutivo y a los fiscales de la República
que dependen de éste, por cierto en el marco de su independencia técnica, como al Poder Judicial en especial a los magistrados
penales, en el ejercicio de sus funciones
jurisdiccionales inherentes a su investidura. Sin perjuicio que se ha invocado su
supuesta inconstitucionalidad en algunas
causas, proceso que ha terminado con
sentencia contradictoria de la Suprema
Corte de Justicia (SCJ). Establecio la
constitucionalidad del artículos l y la
inconstitucionalidad de los artículos 2 y 3.
La brevedad, claridad y
contundencia del texto legal
conlleva un propósito patente
y expreso de permitir que las
víctimas o sus familiares en
su caso, puedan recurrir a la
justicia sin el obstáculo legal
de la norma de impunidad.
Asimismo se hace especial énfasis
en la referencia expresa de la norma
a la categoría jurídica de “crímenes
de lesa humanidad”. Se explicita que
dicha categoría ha sido recibida en el
derecho uruguayo a través de una triple
fuente normativa: costumbre, tratados y
jurisprudencia. La creencia extendida de
que dicha categoría se ha incorporado
recientemente a nuestro derecho o que es
simplemente una de carácter doctrinario,
no condice con un análisis jurídico de las
normas que rigen en el Uruguay sobre la materia. Una revisión
cuidadosa del orden jurídico positivo y vigente en nuestro
país, demuestra que la categoría ha sido incorporada a nuestro
derecho hace décadas.
El texto es breve, pero inequívoco.
Restablece el pleno ejercicio de la
pretensión punitiva del Estado para
determinados delitos, a estos no se le
computará plazo alguno sea procesal, de
prescripción ni de caducidad entre el 22
de diciembre de 1986 y el 27 de octubre
de 2011. Además se declara que esas conductas tipificadas como
delito son crímenes de lesa humanidad de conformidad con los
tratados internacionales de los que la República es parte.
La norma refleja la voluntad política del Poder Legislativo
y del Poder Ejecutivo al promulgarla, de asumir plenamente la
pretensión punitiva por gravísimos crímenes amparados en la
supuesta “caducidad” del artículo 1º de la Ley Nº 15.848.3 Se
deja así en el museo de la ignominia, el mamarracho jurídico de
la Ley de la Caducidad de la Pretensión Punitiva del Estado Nº
15.848.
Este reconocimiento se ha efectuado como mínimo desde
1945. Se concluye que debe descartarse que la aplicación de
la Ley Nº 18.831 interfiera con la garantía de la situación
denominada “irretroactividad de la ley penal más gravosa”, pues
los crímenes de lesa humanidad ya tenían personería en forma
inequívoca en nuestro derecho positivo.
Asimismo, se analiza someramente un fallo del máximo
órgano judicial de Uruguay sobre la constitucionalidad de la
mencionada ley.
La norma orienta nuestra legislación con la jurisprudencia
firme de la Suprema Corte de Justicia expresada en el caso
Sabalsagaray4 y la amplitud de la interpretación del artículo
72 de la Carta.5 Asimismo, adecua nuestro ordenamiento
jurídico al Derecho Internacional de Protección de los Derechos
Humanos en general y en particular al Sistema Interamericano
de protección y promoción de la dignidad humana. Cumple así
con lo mandatado en la Sentencia de febrero de 2011 de la Corte
Interamericana de Derechos Humanos en el caso Gelman v.
Uruguay, al establecer expresamente que Uruguay incumplió su
obligación de adecuar su derecho interno.6 El Estado uruguayo
no podía -si quería cumplir con esta parte de la sentencia- estar
omiso. En definitiva, a la Corte Interamericana le interesa el
resultado y no necesariamente, el medio legal concreto para ello.
Consideraciones generales
Hace tan solo un año el 27 de octubre de 2011, el Poder
Ejecutivo promulgó la Ley Nº 18.831. El nomen iuris de la
norma es “Pretensión Punitiva del Estado—Restablecimiento
para los delitos cometidos en aplicación del terrorismo de
Estado hasta el 1º de marzo de 1985” tal como reza el acápite de
* Dr. Felipe Michelini es abogado, docente en la Facultad de Derecho
de la Universidad de la República en Derechos Humanos y un
diputado.
10
La brevedad, claridad y contundencia del texto legal conlleva
un propósito patente y expreso de permitir que las víctimas o
sus familiares en su caso, puedan recurrir a la justicia sin el obstáculo legal de la norma de impunidad. En efecto, a las graves
y sistemáticas violaciones al derecho a la vida, la libertad, la
integridad personal entre otros, concretado a través de la práctica
de acciones planificadas en las que se destacan los secuestros,
los asesinatos, las ejecuciones extrajudiciales, las torturas, los
tormentos sexuales, violaciones y las detenciones prolongadas,
se le sumó la denegación de justicia y la imposibilidad de presentación de recursos adecuados y eficaces ante el Estado para
reparar y en su caso mitigar las graves violaciones perpetradas.
proceso con todas las garantías del debido proceso, incluida su
opinión en la propia discusión de la ley ya que sus abogados
defensores concurrieron a las Comisiones Asesoras del Poder
Legislativo. Todas garantías procesales que es bueno recordar,
ninguna de sus víctimas jamás dispusieron.
Pero sorteada sin dificultad esa primera crítica, se afirma
por otra parte, que la ley violenta principios fundamentales del
derecho de protección de los derechos humanos y del derecho
penal garantista. Ambos tienen en nuestro país, una larga
tradición en nuestra historia política y jurídica, que es bueno
recordar, no impidió que durante el régimen militar se cometieran los crímenes de lesa humanidad de naturaleza gravísima
por parte del Estado en su conjunto.
Todo ello en el marco del terrorismo de Estado ocurrido en
nuestro país y fuera de él, utilizando la coordinación represiva
ilegal con otros Estados, entre 1973 y 1985, y en el período
inmediatamente anterior. Además, se impidió primero por la vía
de los hechos y luego en forma de ley, el derecho a un recurso
efectivo para buscar sin cortapisa alguna el amparo ante un
órgano independiente e imparcial de justicia. En efecto la ley de
caducidad de 1986 en su vigencia, interpretación y aplicación
reforzó y reafirmó la impunidad. El Poder Ejecutivo modificó el
criterio anterior y las sentencias de la Suprema Corte de Justicia
en el 2009 y la de la Corte Interamericana de 2011 rectificaron
definitivamente el rumbo.
Es una crítica supuestamente formal y técnica, que se
descuenta esgrimida en general con buena fe, la que establece
dudas e interrogantes. Estos abordajes no valoran en su justo
término que la Ley Nº 18.831 ha sido una norma superadora
de la impunidad en el país. Incluso en muchos actores que han
dedicado una vida de compromiso y lucha contra la impunidad,
no asumen la defensa de la norma con entusiasmo, pues en cierta
forma ha permeado una percepción de que hay flancos débiles
en la defensa de la misma y en los aspectos extra jurídicos
que permearon el proceso de la iniciativa, discusión y sanción.
Es una gran paradoja, pues la norma ha sido recibida por la
comunidad internacional tanto la intergubernamental y la no
gubernamental, como una muestra más que auspiciosa de la
forma que pueden retroalimentarse los sistemas regionales y
nacionales en la lucha contra la impunidad y afirmar el estado
de derecho.7
Sin embargo, a pesar de este fin loable de la Ley Nº 18.831,
su texto mismo es impugnado. En efecto, a través de diversas
acciones se intenta deslegitimar la norma y torcer así el reclamo
al goce efectivo del derecho a la justicia. Es claro que la Ley de
Caducidad, su vigencia, aplicación e interpretación fue el reflejo
y excusa jurídica para afirmar un Estado basado en la impunidad
como eje rector de la sociedad uruguaya. Por ello la defensa de
la Ley Nº 18.831 y por ende la legalidad y legitimidad que ella
consagra de la acción de los Poderes del Estado para ejercer la
pretensión punitiva al investigar, esclarecer los hechos, procesar
a los eventuales responsables y en caso de hallarlos culpables
imponerles el castigo que establecen las normas penales, es fundamental para dignificar las víctimas del terrorismo de Estado y
fortalecer una institucionalidad democrática de calidad.
Cuestiones coadyuvantes
Es de principio clarificar que la Ley Nº 18.831 mantiene
una total y absoluta coherencia con el sistema de gobierno
democrático republicano -que es el régimen jurídico que nos
rige- y por ende es compatible total y absolutamente, con la
defensa y protección de los derechos humanos. Sistema que
significa que la legitimidad del gobierno se ejerce a través de
las reglas establecidas en la propia Constitución, y que las autoridades públicas no pueden legítimamente ir más allá de lo que
la norma los habilita para el fiel cumplimiento de sus cometidos,
siempre respetando la dignidad humana.
Esta lógica promueve una sociedad democrática en la cual
el pleno ejercicio de los derechos y absoluta vigencia de los
derechos humanos, sean ejes centrales de su esencia y además
repare en lo posible a las víctimas y sus familiares, mitigue su
dolor y garantice el Nunca Más al terrorismo de Estado.
La propia Carta define como “bases fundamentales de la
nacionalidad” las contenidas en las Secciones I y II de esta,
incluidos en ellos los artículos 7º de protección en el goce8,
el 72º de derechos inherentes a la personalidad humana o se
derivan de la forma republicana de gobierno9, afirmados y
vigorizados por lo establecido en el artículo 332º en referencia a
que los derechos reconocidos a las personas y las que atribuyen
facultades y deberes a las autoridades públicas, deben aplicarse
aún a falta de reglamentación.10
Críticas a la ley Nº 18.831
El cuestionamiento a la ley N° 18.831 asume aristas y perspectivas dispares, algunas de oportunidad o de conveniencia,
otras de carácter técnico.
Al igual que toda norma jurídica es por regla cuestionable,
opinable o perfectible. Un abordaje sesgado y rústico que afirma
que esta ley es tan sólo el ejercicio abusivo y revanchista de una
mayoría parlamentaria circunstancial, no tiene sustancia alguna
y es fácilmente descartable. Es un abordaje político y al efecto
de la interpretación jurídica, resultará irrelevante. Vale la pena
decir que el “revanchismo” que se afirma se promueve, es en
todo caso uno peculiar, pues lo que se ha hecho es promover que
los sospechados de conductas repugnantes, fuesen sometidos a
Una ley como la Nº 18.831 que afirma garantizar los contenidos sustantivos de nuestro ordenamiento jurídico debe asumirse
como compatible con la Carta y conducente a la protección del
ser humano, razón última del texto constitucional. Ello es así,
tanto por la vía tradicional de presumir per se la legitimidad de
una norma dictada por el Poder Legislativo, o que se prefiera
una interpretación más severa al momento de analizar la
11
constitucionalidad de una norma con el texto constitucional, en
lo que se conoce en doctrina la interpretación constitucionalizante de la ley.
prescripción no tiene esa categoría, ni la calidad de principio
absoluto y universal.12
Además en nuestro derecho, son de resorte legal y no
constitucional, por lo tanto la extensión de estos si en su caso
correspondiere, como hace el texto del artículo 2º analizado, no
violenta principio constitucional alguno de índole nacional o de
los instrumentos de protección de los derechos humanos. Otras
leyes de nuestro derecho positivo nacional de modificación de
plazos, ofrecen una muestra contundente de ello. Estas han sido
histórica y pacíficamente aceptados por la doctrina, todos los
operadores del derecho incluidos magistrados, fiscales, abogados defensores y legisladores. En efecto dos leyes en el período
democrático iniciado en 1985 como las Nº 15.75213 y 16.52914
suspendieron y por ende modificaron los cómputos de los plazos
de prescripción y caducidad. Más aún cuando la aprobación y
promulgación de la norma se realiza con el objetivo manifiesto
de cumplir con estándares internacionales de protección a los
derechos humanos en general y en particular con una sentencia
de naturaleza obligatoria para el Estado uruguayo.
La norma objeto de análisis es superadora de la situación
creada -contra todo principio jurídico- de que era posible
declarar que por “como consecuencia de la lógica de los hechos
originados por el acuerdo celebrado entre partidos políticos y
las Fuerzas Armadas …ha caducado el ejercicio de la pretensión
punitiva del Estado . . . .”11
No hay duda que la ley puede, y según la jurisprudencia
de la Suprema Corte de Justicia y de la Corte Interamericana
de Derechos Humanos debe, restablecer el pleno ejercicio de
la pretensión punitiva. Más aún cuando esos crímenes fueron
cometidos por funcionarios del Estado, utilizando toda la
organización estatal en forma consistente, masiva, sistemática
y de graves consecuencias para los derechos de las víctimas.
Ningún perjuicio se puede desprender de la recuperación de
la pretensión punitiva por parte del Estado, per se, apelando a
la fuente legal de su origen. Por lo tanto, la norma en análisis,
no sólo no contiene vicio alguno, sino que restablece el vicio
perverso de la norma que amparaba los crímenes comprendidos
en el artículo 1º de la ley Nº 15.848.
Pues, a pesar de la afirmación popular, la no retroactividad
de la ley penal, corresponde tan sólo en dos hipótesis específicas: creación de nuevas figuras penales o el agravamiento
de las penas. Ni más ni menos. El Pacto Internacional de
Derechos Civiles y Políticos lo establece en forma expresa15,
así como la Convención Americana sobre Derechos Humanos.16
La Constitución de la República, en su articulado histórico
no innova en este sentido. Se establece la máxima garantía en
materia penal, de que no hay pena sin delito y no hay crimen
sin ley que la establezca -expresado según la fórmula de nuestro
constituyente en el segundo párrafo del artículo 10- en que nadie
está obligado a hacer aquello que no manda la ley, ni privado de
lo que ella no prohíbe.17 El Código Penal lo aclara expresamente.
Retroactividad de la ley
Al ser legitima la acción del Estado que impone un determinado criterio para calificar conductas, se sostiene que ella
tiene un efecto retroactivo en la ley penal de forma ilegítima y
contraria por ende a los derechos humanos. No sería ajustado
a derecho, se sostiene con razón, que aún la buena intención
de proteger derechos, violara aquellos fundamentales en forma
flagrante. Pero ello es necesario fundamentarlo adecuadamente.
Siguiendo el razonamiento, debemos aceptar que la aplicación
temporal de las normas jurídicas debe hacerse en el marco de un
determinado sistema normativo, y debe probarse su consistencia
con el sistema jurídico que se intente aplicar.
Una primera observación es que el primer párrafo de ese
artículo establece a texto expreso que las acciones privadas de
las personas de que ningún modo atacan el orden público ni perjudican a un tercero, están exentos de la autoridad de los magistrados. Vale decir que al momento de los hechos acaecidos en el
período entre 1968 y 1985 el secuestro, la supresión de identidad
de niños y niñas, la tortura, la ejecución sumaria o extrajudicial,
la desaparición forzada, la violación o la agresión sexual, los
tratamientos, crueles inhumanos o degradantes, a personas
indefensas por parte de funcionarios públicos en ocasión de un
plan sistemático de represión ilegal, no podían estar fuera de la
acción de los magistrados. Esas figuras se subsumían, aún en
el marco legal del terrorismo de estado en varios tipos penales
consagrados en los textos de normas positivas. Por lo tanto, el
argumento de que la Ley Nº 18.831 establece una retroactividad
de la ley penal, es claramente inconsistente.
En nuestro país no hay ninguna referencia expresa a la
aplicación temporal de las normas, a no ser en el sentido común
que estas se aplicarán a partir de su promulgación, lo que parece
obvio. La interrogante, correctamente formulada, es si una ley
puede tomar hechos del pasado para darle un efecto jurídico
determinado en el futuro. Se pueden dictar y se dictan normas
jurídicas denominadas leyes que en forma frecuente toman
hechos acaecidos en el pasado y le dan valor jurídico y efecto
en el futuro. Se puede y es más común de lo que se cree, por
ejemplo el de establecer tributos sobre hechos generadores del
pasado, reconocer aptitudes para reglamentar el ejercicio de
profesiones o prohibiéndolas para otras personas, así como el
reconocimiento de beneficios de pensiones y jubilaciones.
Se dice en cambio, que esos eran delitos de tipo común,
pero que no revestían el carácter de lesa humanidad pues ello
es una categoría más gravosa al tener esos crímenes un carácter
imprescriptible, cosa que los delitos comunes no poseen. Es un
curioso razonamiento, pues la calidad de funcionario público del
sujeto, la escala de los crímenes perpetrados y la eliminación
del sistema de garantías del orden jurídico incluyendo el golpe
de estado, la supresión del Parlamento y la reducción del Poder
Judicial a su mínima expresión, no agravaría la responsabilidad
Se argumenta que en materia penal, hay una restricción
más severa. Nada puede ser retroactivo, se afirma, excepto en
los casos que beneficie al reo. En primer término, esa generalización tal vez simpática, no es técnicamente correcta. Por ejemplo, los plazos procesales, de prescripción, de caducidad, cómo
el tipo de juico o las reglas de la evidencia no están protegidos
por ese supuesto principio general. Así lo confirma el ilustre
Schurmann Pacheco en tanto que la imprescriptibilidad no viola
principio alguno de Derecho Penal, desde que el instituto de la
12
penal del sujeto, sino que lo exime de responsabilidad total de
los crímenes cometidos.
evidencian la voluntad de reprimir conductas violatorias de valores inherentes a la humanidad considerada
en su conjunto, como sería el atropello a gran escala de
la dignidad humana.
Una primera conclusión es que la Ley Nº 18.831 no crea
tipos penales nuevos ni establece penas más severas, por lo tanto
el legislador no ha transgredido mandato jurídico prohibitivo
alguno y por ende la norma es total y cabalmente constitucional
y condice con el derecho internacional de protección de los
derechos humanos.
El crimen contra la humanidad adquiere autonomía
respecto a otros delitos internacionales, tanto crímenes
de guerra como contra la paz.
Serán competentes para juzgar a sus responsables
los tribunales internos donde el “crimen contra la
humanidad” se cometa, no siendo en ningún caso eximente de responsabilidad el cumplimiento de órdenes
superiores.19
La categoría de “Crimen de lesa Humanidad”
La categoría de crimen de lesa humanidad que incluye a
actos como los de tortura, el asesinato político y la desaparición forzada conlleva la consecuencia de imprescriptibilidad,
imposibilidad de la amnistía, no aceptación de la excepción de
obediencia debida, improcedencia del asilo o refugio político,
juzgamiento o extradición por parte del Estado donde se encuentre el sospechoso.18
El Juez y jurista brasileño Antônio Augusto Cançado
Trindade resume en su voto razonado en el caso de la Corte
Interamericana Almonacid y otros Vs. Chile, un concepto
demostrativo de la gravedad del crimen de lesa humanidad:
. . . ya en los albores del Derecho Internacional, se
acudió a nociones básicas de humanidad para regir
la conducta de los Estados. Lo que, con el pasar
del tiempo, vino a denominarse “crímenes contra
la humanidad” emanó, originalmente, del Derecho
Internacional consuetudinario, para desarrollarse conceptualmente, más tarde, en el ámbito del Derecho
Internacional Humanitario, y, más recientemente, en el
del Derecho Penal Internacional. Aquí nos encontramos
en el dominio del jus cogens, del derecho imperativo.
En la ocurrencia de tales crímenes victimizando seres
humanos, la propia humanidad es del mismo modo victimizada. Esto ha sido expresamente reconocido por el
TPIY (en el caso Tadić, 1997); tales crímenes afectan la
conciencia humana (TPIY, caso Erdemović, 1996)—la
conciencia jurídica universal—y tanto los individuos
agraviados como la propia humanidad tórnanse víctimas de los mismos. Esta línea de entendimiento, que
alcanzó el Derecho Internacional Humanitario y el
Derecho Penal Internacional contemporáneo, debe, a
mi juicio, integrarse también al universo conceptual del
Derecho Internacional de los Derechos Humanos . . . .20
Se argumenta que la declaración del legislador de categorizar
una conducta como “crimen de lesa humanidad” a través de una
disposición legal, se constituye en una vía indirecta con el claro
propósito de sortear el aparente escollo insalvable de legislar
tipos penales de manera retroactiva. Este argumento es falaz e
inconsistente. Las fuentes del derecho para la persecución penal
de los crímenes más graves de la comunidad internacional, no
se limitan a la fuente formal ley del Estado, en este caso el uruguayo. Si así fuese, no podría sostenerse un sistema de derechos
humanos universal, que nuestra República sostiene, pues todo se
resumiría a la discrecionalidad y cambios del derecho interno.
La declaración que las conductas repugnantes a nuestro
sentir nacional y a la esencia de nuestro derecho tal como surge
del texto del artículo 72 de la Constitución de la República, son
crímenes de lesa humanidad de conformidad con los tratados
internacionales de los que la República es parte, no afecta
principio constitucional alguno. Al contrario los reafirma.
La prohibición de ciertas conductas conocidas como
crímenes de lesa humanidad, y la obligación de los Estados de
prevenir su realización y en caso de suceder la de investigar a
los sospechosos y penar a los responsables, se han incorporado
al derecho internacional de protección de los derechos humanos
por una triple fuente vinculante para la República: el derecho
consuetudinario, los tratados y la jurisprudencia. Todo lo que ha
devenido en la ubicación de estas obligaciones como parte del
orden internacional público que no admite pacto en contrario y
que toda acción en su contra es nula (ius cogens).
Este razonamiento es el que permite comprender lógicamente, el artículo 30 final de la Declaración Universal de
Derechos Humanos, en la que expresamente “no confiere
derecho alguno al Estado, a un grupo o a una personas, para
emprender y desarrollar actividades o realizar actos tendientes
a la supresión de cualquiera de los derechos y libertades proclamados en esta Declaración”.21
El Dr. Oscar López Goldaracena sintetiza la evolución de la
noción de crimen de lesa humanidad, de la forma siguiente:
Igualmente así se entiende el párrafo 2º del artículo 15 del
Pacto Internacional de Derechos Civiles y Políticos ratificado
por Uruguay en 1969 y vigente desde 1976, que afirma luego
de afirmar la no retroactividad de la ley penal, que “nada de lo
dispuesto en este artículo se opondrá al juicio ni a la condena
de una persona por actos u omisiones que, en el momento de
cometerse, fueran delictivos según los principios generales
del derecho reconocidos por la comunidad internacional.”22
Uruguay no estableció reserva alguna a este artículo.
La práctica sistemática de torturas, desapariciones y
homicidios políticos respaldada ideológicamente por
la doctrina de la seguridad nacional y cometida por
dictaduras castrenses latinoamericanas, constituye un
“crimen contra la humanidad.”
Dicha asimilación se produce por mandato de una
norma supranacional de derecho internacional (ius
cogens) de progresiva formación en la conciencia
pública internacional y exteriorizada en convenciones, declaraciones y jurisprudencia internacional que
Idéntico razonamiento es el que impone la cláusula interpretativa de la Convención Americana sobre Derechos Humanos
13
en la que no permite la justificación de una conducta violatoria
de la Convención en base a esta, en tanto suprima derechos y
libertades reconocidos en ella.23
Es decir, que la República adhirió al Acuerdo de Londres
en forma libre y voluntaria tal como lo permitía el artículo
5º del mismo. Asumió ante la comunidad internacional el
concepto reflejado en un tratado internacional, de la existencia
de crímenes de lesa humanidad (CTMI art. 6º. Lit. c) sobre
ofensas no circunscriptas a determinadas regiones (AL art. 1º),
aceptando además que dicho acuerdo no afectaba la jurisdicción ni los poderes de ningún tribunal nacional (AL art. 6º).
Reconoció así expresamente la legitimidad de la actuación de
dicho tribunal, sus sentencias y condenas, arrogándose además
para sí la pretensión punitiva de estos graves crímenes si así lo
considerase.
A la argumentación del derecho consuetudinario, reforzada
como se ha visto por textos específicos de los tratados en la
materia, debe sumarse la jurisprudencia inequívoca en el punto.
En el caso conocido como La Cantuta, la Corte Interamericana
de Derechos Humanos establece en forma inequívoca la inconsistencia de determinadas eximentes de la responsabilidad penal
con la Convención Americana sobre Derechos Humanos.24
Una sentencia de esta misma Corte en un caso sobre Chile de
Pinochet estableció criterios específicos sobre los crímenes
de lesa humanidad y le dio especial importancia al Estatuto
de Núremberg para evaluar la conducta del Estado Parte en
las circunstancias posteriores al derrocamiento del Presidente
Allende.25 A su vez reafirma el principio de la responsabilidad
estatal en casos de crímenes de lesa humanidad.26 En la condena
al Uruguay en el caso Gelman, se afirma esa base jurisprudencial, pues se establece que la irretroactividad de la ley penal no
constituye una excusa legítima para incumplir su obligación de
investigar y sancionar a los responsables de graves violaciones a
los derechos humanos.27 Asimismo, la Comisión Interamericana
de Derechos Humanos en casos referidos al régimen de Duvalier
en Haití explicita claramente que ese país tenía obligaciones previas a la instalación de ese gobierno, en referencia a los crímenes
de lesa humanidad pues estos ya eran parte del ius cogens.28
El texto es inequívoco: CTMI Artículo 6º […](c) Crímenes
contra la humanidad: es decir, asesinatos, exterminación,
sometimiento a esclavitud, deportación y otros actos inhumanos
cometidos contra cualquier población civil antes o durante
la guerra, o persecuciones por motivos políticos, raciales o
religiosos, en ejecución o en conexión con cualquier crimen
de la jurisdicción del Tribunal, sean o no una violación de la
legislación interna del país donde hubieran sido perpetrados.
Los dirigentes, organizadores, instigadores y cómplices participantes en la elaboración o en la ejecución de un plan común
o de una conspiración para cometer cualquiera de los crímenes
antedichos son responsables por todos los actos realizados por
toda persona en ejecución de tales planes. Asimismo, el impacto
de los trabajos del Tribunal Militar Internacional, como lo fue
luego el de Tokio y de otros tribunales de justicia, posibilitó la
Resolución Nº 95 de la Asamblea General de Naciones Unidas32
que se denominaron principios de Núremberg, que luego tienen
un desarrollo dentro de la propia organización a través de la
Comisión de Derecho Internacional como órgano subsidiario de
la Asamblea General.33
Sin embargo, pese a esta argumentación inequívoca, más
que suficiente vistos los fundamentos específicos para Uruguay
en la sentencia Gelman, se intenta erosionar este razonamiento.
Algunos que dicen compartir el fin loable de la persecución
penal y castigo de estos horrendos crímenes, sostienen que en el
derecho uruguayo los crímenes de lesa humanidad, son tan solo
una expresión de la doctrina. Elaboración necesaria e importante,
pero insuficiente al momento de ejercer la pretensión punitiva
y de paso, sin efecto práctico alguno. Según estos acérrimos
defensores de la interpretación pie letrista del derecho, que exige
derecho positivo y no acepta más que argumentos de texto, es
decir normas de una fuente jurídica formal e indiscutible.
Si se sostiene que se mantiene la continuidad de la persona
jurídica Estado, en tanto la República Oriental del Uruguay es el
mismo sujeto jurídico internacional que ratificó ese tratado con
el actual, ¿cómo es posible sostener la legitimidad ética, política
y jurídica para juzgar a los criminales del nazismo, y al mismo
tiempo, no se quiera asumir la pretensión punitiva en hechos que
han afectado a su propio pueblo?
Pero el argumento, repetido una y otra vez, devaluando
expresamente el valor del derecho consuetudinario y de la
jurisprudencia, obvia el hecho que la categoría de crímenes de
lesa humanidad en el Uruguay no es reciente. Al contrario tiene
larga data en el derecho positivo uruguayo, estando lejos está de
ser una categoría inventada por alguna mente febril.
La ratificación jurídica y conceptual de esta categoría, se
afirma en el año 2001. En efecto, cinco décadas más tarde de
adherir al Acuerdo de Londres, Uruguay ratifica sin reserva de
especie alguna, la Convención sobre Imprescriptibilidad de los
Crímenes de Guerra y de los Crímenes de Lesa Humanidad. El
texto adoptado en el año 1968, en su preámbulo reseña todas
y cada una de las resoluciones de la Asamblea General de
Naciones Unidas referidas a la materia y en especial al Acuerdo
de Londres que estableció el Tribunal Militar Internacional
que realizó como se ha dicho, su primer juicio en la ciudad de
Núremberg.
En efecto, en 1945 se realizó el Acuerdo de Londres (AL)29
para el enjuiciamiento y castigo de los principales criminales de
guerra de los países europeos del eje y nuestro país es uno de
los 19 estados que adhirieron al mismo.30 Ese acuerdo realizado
entre las potencias triunfantes de la segunda guerra mundial,
estableció el marco institucional para juzgar a los criminales
y establecer un Tribunal Militar Internacional. Luego este será
conocido como el Tribunal de Núremberg, pues allí se realizó
el primer juicio, aunque técnicamente la fuente normativa es el
mencionado Acuerdo de Londres. Es este tratado al que Uruguay
adhirió, el que contiene e incluye en forma expresa, la Carta del
Tribunal Militar Internacional (CTMI).31 Allí se tipifican los
crímenes contra la paz -hoy conocidos como agresión—de
guerra y contra la humanidad.
Asimismo, nuestro país ratifica los convenios de Ginebra
de 1949 que en su artículo 3 común de “Conflicto sin carácter
internacional” establece la prohibición absoluta de acciones que
comprometan la vida y la integridad personal, el homicidio en
todas sus formas, las mutilaciones, los tratos crueles, torturas y
suplicios; de personas que no participan directamente en las hostilidades. El corolario de esta prohibición en todo tiempo y lugar
14
compromete al estado a tomar todas las medidas legislativas
para fijar las adecuadas sanciones penales a los que las cometan
o den órdenes de cometerlas.
Uruguay. Asimismo, a contrario sensu el mencionado artículo
reconoce que se no ejercía plenamente la pretensión punitiva del
Estado, para los delitos cometidos en aplicación del Terrorismo
de estado.
En el año 1995 Uruguay ratificó la Convención Interamericana
sobre desaparición forzada de personas, sin reserva de tipo
alguno. En su Preámbulo se establece en forma clara que la
desaparición forzada es un crimen de lesa humanidad. En el
articulado se establece la obligación de los estados de tipificar
el delito de desaparición forzada y que este continuado o
permanente mientras no se establezca el destino o paraderos de
las víctimas y que la acción penal no estará sujeta a prescripción.
Asimismo, se establece que la Convención no se interpretará
como restrictiva de otros tratados suscritos por las partes.
Sin embargo la SCJ por una mayoría de cuatro a uno, declara
inconstitucional el artículo segundo39 que era la conclusión
lógica que se deriva de la falta de la pretensión punitiva plena,
de que las víctimas estaban impedidas de acceder a la justicia.
La sentencia, al aceptar la constitucionalidad del primer artículo
y negar el segundo y el tercero, pierde todo sentido lógico. Un
familiar un asesinado por torturas, en las que se le entregó el
féretro sellado y con la prohibición expresa de no proceder a su
apertura, no podía denunciar durante la dictadura, luego vino
la caducidad, y cuando se restablece
la pretensión punitiva, se le esgrime
que su derecho prescribió. ¿Qué sentido tiene mantener y afirmar la constitucionalidad del artículo primero
si luego este se torna absolutamente
ineficaz?
En el año 2002 se ratifica el
Estatuto que crea la Corte Penal
Internacional para la persecución
de los crímenes más repugnantes
como el genocidio, de guerra, de
lesa humanidad y de agresión. Se
acuerda en el marco del Estatuto que
la Corte que se crea de carácter permanente, imparcial e independiente
juzgará los crímenes a partir de su
vigencia cuando los Estados Partes
no puedan o no quieran juzgar a los
responsables de los hechos, sobre la
base de su carácter complementario
de las jurisdicciones nacionales.
El Estatuto fija la actuación de la
Corte que crea a partir de su vigencia, cómo no podía ser de otra
manera, pero no exime del cumplimiento de las obligaciones que
por vía convencional, consuetudinaria o de una sentencia, tuviese un Estado parte. Este abordaje tiene consagración expresa en
el artículo 10 del Estatuto34 y se reitera en el artículo 22 en tanto
se refiere a los principios generales de derecho Penal.35
No hace el menor esfuerzo de
identificar los valores en pugna,
el valor de la sociedad de buscar
a través del derecho la verdad,
el derecho de la víctima a ser
amparada en sus derechos y el
derecho del justiciado a ser tratado
de acuerdo al Estado de Derecho.
El único argumento expresado
por la SCJ es que el artículo viola el
principio de la “invalidez de retroactividad de la ley penal más gravosa”.
El problema que debe sortear es que
en ningún artículo de la Constitución
se habla de la prescripción, de la no
retroactividad de la ley en general, ni
aun específicamente de la ley penal.
Procede, entonces como una petición de principios con el
concepto de irretroactividad de la ley penal más gravosa, pues lo
define como granítico. No hace el menor esfuerzo de identificar
los valores en pugna, el valor de la sociedad de buscar a través
del derecho la verdad, el derecho de la víctima a ser amparada en
sus derechos y el derecho del justiciado a ser tratado de acuerdo
al Estado de Derecho.
La sentencia de la Suprema Corte de Justicia
A ese supuesto principio, la mayoría de la SCJ lo termina definiendo como único, excluyente y exclusivo de la
Constitución, a pesar de que no hubo plenitud en la pretensión
punitiva. Se ignora el artículo 7 de la Constitución40 es decir
el derecho a ser protegido en el goce de otros derechos que se
complementa con el 7241. La SCJ lo hace, mediante una lectura
incompleta del artículo 10 de la Constitución42 y, a falta de
argumentos, se basa en otra ley, norma de rango inferior a la
Constitución—el Código Penal—que tiene la misma naturaleza
que la impugnada.
La Suprema Corte de Justicia de Uruguay (SCJ)36 se expresó
recientemente, sobre la constitucionalidad37 de los artículos
1, 2 y 3 de la Ley Nº 18.83138. La decisión ha tenido una alta
repercusión y aún se desconoce su impacto concreto en las
causas en trámite.
Por unanimidad de los cinco miembros de la SCJ, el artículo
primero ha sido considerado constitucional. Se blinda a los
fiscales y magistrados en el ejercicio de la acción punitiva en
toda causa que existan hechos configurativos de apariencia
delictiva en la hipótesis del artículo 1º de la ley Nº 15.848.
Ningún fiscal o magistrado puede ampararse en la mencionada
ley de caducidad para el no ejercicio de sus cometidos, ni ninguna investigación podrá interrumpirse o archivarse invocando
dicha norma. No tendrán al momento de realizar la indagatorias
ninguna restricción entre ellas las de pedir permiso al Poder
Ejecutivo tal como lo establecía la ley de caducidad y que hasta
el 2009 fue invocada como materia excluida y extraña al Poder
Judicial. Aquel no podrá legítimamente arrogarse poder alguno
para sustraer del Poder Judicial materia que no le es privativa.
Este restablecimiento de la pretensión punitiva en su plenitud
permite cumplir a su vez con la sentencia en el caso Gelman Vs.
La SCJ al no incluir en su razonamiento el derecho de las
víctimas a ser protegidos en el goce de su derechos, lleva a que el
ser humano puede ser objeto -no ya por el ataque de una persona
individual- si no por una organización criminal que usurpó la
función pública y utilizó todo el poder del Estado para asesinar,
desaparecer personas y a torturar a los habitantes de la República.
Luego ampararse por veinte años por la “caducidad” ilegítima del
Estado a ejercer su pretensión punitiva, tal como la propia SCJ
reconoció y cuando una ley lo habilita expresamente a buscar el
amparo de la justicia, se le dice que expiró el plazo para ejercer
ese derecho, sin identificar ningún artículo de la Carta Magna
para declarar dicha norma contraria a la Constitución.
15
Conclusiones
La incongruencia también es patente con el derecho internacional. Se esgrime el principio de legalidad de “irretroactividad de la
ley penal más gravosa” y la prevalencia de la norma nacional. En
efecto la SCJ en una visión de la soberanía del siglo XIX, afirma:
Tal como se ha demostrado la Ley Nº 18.831, por una parte,
no infringe ningún principio fundamental de nuestro ordenamiento jurídico. Al contrario, reafirma por vía legal las bases
fundamentales de nuestra Constitución nacional que impone
la protección al goce de determinados derechos consagrados a
texto expreso por el constituyente.
Si sustancialmente no se perciben dificultades en
la integración de las normas contempladas en la
Conventión Americana sobre Derechas Humanos al
ordenamiento jurídico interno, a nivel procesal y de
garantías puede discutirse si los fallos y opiniones de
la Corte Interamericana de Derechas Humanos son
aptos para crear situaciones de excepción directamente
aplicables por los tribunales uruguayos: la garantía
derivada del principio de legalidad y la interdicción de
la retroactividad de la norma sancionadora no favorable, al igual que la protección de la confianza o seguridad jurídica contemplados en el estado Constitucional
de Derecho, en el propio texto y espíritu de la Carta, se
opone a interpretaciones extensivas.43
La disposición legal analizada, por otra parte, es totalmente
compatible con los mandatos del Derecho Internacional de
Protección de los Derechos Humanos. Le permite al Estado
uruguayo orientar todo el aparato del mismo, incluida la Ley
y su vocación punitiva, para cumplir con la protección de la
dignidad de la persona humana. En este, el acceso a recursos
o mecanismos de protección adecuados y eficaces de carácter
jurisdiccional es un componente sustantivo, más aún en los
casos de “crímenes de lesa humanidad”.
La Ley Nº 18.831 no vulnera la situación denominada “irretroactividad de la ley penal más gravosa”, en tanto la categoría de
crímenes de lesa humanidad ya tenía personería jurídica en forma
inequívoca en nuestro derecho positivo por vía de la costumbre,
los tratados ratificados por la República y la jurisprudencia internacional, desde por lo menos cinco décadas antes de la comisión
de los hechos objeto de la norma. La SCJ no tiene presente toda
la Constitución y elimina de plano toda interpretación compatible
y adecuada a la Carta a la que debe preferirse por una razón de legitimidad. Olvida
que esta no es meramente un límite, sino
la expresión de valores jerarquizados que
se imponen al legislador, al juez y al
administrador y pueden ser reguladas por
ley, en dubio de los valores de la vida y el
amparo ante los crímenes más abyectos.
No registra las normas de ius cogens y de derecho consuetudinario. Se olvida de los tribunales de Núremberg, Tokio,
Ruanda, la ex Yugoeslavia, de los amplios antecedentes de la
región, de la jurisprudencia de la CorteIDH n y de la Corte
Internacional de Justicia.
La mayoría de la SCJ también por 4 a 1, declaró inconstitucional el artículo 3 de la ley.44
La lógica justificante de la impunidad
hizo que la SCJ no haya identificado los
tratados en los que la República es parte,
en los que se definen los crímenes de
lesa humanidad que anteceden en mucho
tiempo el inicio de la dictadura. Invoca
sí el Estatuto de Roma, que creó la Corte
Penal Internacional y las dos leyes nacionales -una ratificatoria y la otra de cooperación y complementaria del sistema de la
CPI- del 2002 y del 2006 respectivamente.
Olvida en cambio los tratados ratificados
por Uruguay como Convención de Imprescriptibilidad de los
Crímenes de Guerra y de los Crímenes de Lesa Humanidad de
1970 que Uruguay aceptó sin reserva alguna, del Acuerdo de
Londres de 1945 que estableció Núremberg y de los Convenios
de Ginebra de 1949 con su artículo 3 común y sus protocolos
adicionales de 1985.
La SCJ en su sentencia
muestra una absoluta falta
de empatía por las víctimas
de los crímenes más
ignominiosos y repugnantes
de la historia del país.
El derecho no escapa al mundo de los
afectos. La SCJ en su sentencia muestra
una absoluta falta de empatía por las
víctimas de los crímenes más ignominiosos y repugnantes de la historia del
país.47 Víctimas que fueron producto de que algunas personas
amparadas por su investidura pública y en ejercicio de su
función pública, expropiaron para sí los poderes del Estado en
los que destruyeron las instituciones, pervirtieron las funciones
del Estado y cometieron todo tipo de crímenes, entre ellos, el
secuestro, las violaciones de hombres y mujeres, ejecuciones
sumarias, desapariciones forzadas, la tortura sistemática y la
prisión prolongada en el marco de la cooperación ilegal represiva
con otros estados de la región en lo que se ha denominado Plan
Cóndor. Luego de ello, en un acto de violencia y de chantaje se
les impuso a los legisladores de la época, bajo amenaza de golpe
de Estado, el votar una ley de caducidad de la pretensión punitiva,
como manera de garantizar la no persecución penal, en una lógica
perversa de impunidad, tal como lo consigna la propia sentencia
de la Suprema Corte de Justicia del año 2009 y la Sentencia en el
caso Gelman de la CorteIDH.
La SCJ no repara en el art. 239 de la Constitución45 que
comete a la SCJ juzgar sobre delitos contra el Derecho de
Gentes, ni se detiene en el artículo 10 del Código Penal del
año 1934 que hace una mención expresa a los convenios
internacionales.46
¿Cuál es la inconstitucionalidad en la que habría incurrido
el legislador en establecer que ciertas conductas deben ser
interpretadas de conformidad con los tratados internacionales de
los que República es parte, y por ello esas conductas deben ser
catalogadas como crímenes de lesa humanidad? ¿Qué principio
constitucional se violenta? La SCJ nada agrega, más allá—de
la supuesta irretroactividad—que ya se ha demostrado no tiene
sustento alguno.
Todos aquellos que creemos en la verdad, la memoria y la
justicia seguiremos trabajando para lograrla, compromiso ineludible e irrenunciable con las víctimas y las generaciones futuras.
16
Endnotes
1
24
Ley Nº 18.831, promulgada el 27 de octubre de 2011 y
publicada en el “Diario Oficial” 1/11/2011.
2 Art. 7, párr. 2, Constitución de la República
(http://pdba.georgetown.edu/
constitutions/uruguay/ uruguay04.html) (último acceso 09/06/2013).
3 Ley Nª 15.848 publicada en el “Diario Oficial” el 31 de diciembre de 1986.
4 Sentencia Nª 365 de la Suprema Corte de Justicia—Sabalsagaray
Curutchet, Blanca Stella Maris—caso de Nibia Sabalsagaray, 19 de
octubre de 2009. Ficha 97-397/2004. Publicación de IMPO—MEC.
5 Art.72, Constitución de la República.
6 Gelman Vs. Uruguay, Fondo y Reparaciones, Corte I.D.H. (ser.
C) No. 221, párr. 312 (Sentencia de 24 de febrero de 2011.
7 “En primer lugar, la Comisión Interamericana saluda la promulgación en Uruguay, el 30 de octubre de 2011, de la ley No. 18.831,
que declara imprescriptibles los crímenes cometidos durante la
dictadura. En su artículo 1º, la nueva ley “restablece el pleno ejercicio
de la pretensión punitiva del Estado” para los delitos comprendidos
en la Ley de Caducidad de la Pretensión Punitiva del Estado del 22
de diciembre de 1986. De esta manera, Uruguay ha avanzado de
manera significativa en el cumplimiento de las recomendaciones
del Informe 29/92 aprobado por la CIDH y la Sentencia de la Corte
Interamericana de Derechos Humanos (CorteIDH) en el caso Juan
Gelman.”
8 Art. 7, Constitución de la República.
11 Ley No. 15,848, art. 1.
12 Schurmann Pacheco, R. Principios de legalidad y de irretroactividad y el instituto de la prescripción, No a la impunidad—Sí a la
Justicia, pág. 170 CIJ Ginebra, 1992.
13 Ley Nº 15.752. DO Nº 21.969—2/07/1985.
14 Ley Nº 16.529. DO Nº 24.112—17/08/1994.
15 Pacto Internacional de Derechos Civiles y Políticos, GA res.
2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc.
A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967), art. 15(1).
16 Organización de Estados Americanos, Convención Americana
sobre Derechos Humanos, 22 de noviembre de 1969, O.A.S.T.S.
No. 36, 1144 U.N.T.S. 123, art. 9.
18 Artucio, A. Impunidad y derecho internacional. No a la
impunidad—Sí a la Justicia, pág. 201, CIJ Ginebra, 1992.
19 López Goldaracena, O. Derecho Internacional Crímenes
contra la Humanidad, pág. 58, Fundación de Cultura Universitaria,
Montevideo, 2008.
20 Almonacid Arellano y otros Vs. Chile. (Excepciones
Preliminares, Fondo, Reparaciones y Costas, Corte I.D.H. (ser. C)
No. 154 (Sentencia de 26 de septiembre de 2006), Voto Razonado
del Juez A.A. Cançado Trindade, párr. 28.
21 Declaración Universal de Derechos Humanos, GA res. 217A
(III), UN Doc A/810 at 71 (1948), art. 30.
22 Supra nota 15.
23 Supra nota 16, art. 29.
La Cantuta Vs. Perú, Fondo, Reparaciones y Costas, Corte
I.D.H. (ser. C) No. 162 (Sentencia del 29 de noviembre de 2006),
párr. 226.
25 Supra nota 20, párr. 96.
26 Id., párr. 151.
27 Supra nota 6, párr. 254.
28 Pronunciamiento sobre el Deber del Estado Haitiano de
Investigar las Graves Violaciones a los Derechos Humanos cometidas
durante el régimen de Jean-Claude Duvalier, 17 de mayo 2011 párr. 10.
29 Acuerdo de Londres para el establecimiento de un Tribunal
Militar Internacional http://avalon.law.yale.edu/imt/imtchart.asp
(último acceso 31/05/2013).
30 Registro de las adhesiones y ratificaciones del Acuerdo
de Londres para el establecimiento de un Tribunal Militar
Internacional http://treaties.un.org/Pages/showDetaisl.
aspx?objid=08000002801572a2 (último acceso 31/05/2013).
31 Carta del Tribunal Militar Internacional http://avalon.law.yale.
edu/imt/imtconst.asp.
32 G.A. Res. 95, U.N. GAOR, 1st Sess., U.N. Doc. A/141 (1946).
http://www.un.org/spanish/documents/ga/res/1/ares1.htm
33 Principles of Intl. Law Recognized in the Charter of
the Nürnberg Tribunal and in the Judgment of the Tribunal
(http://www.derechos.org/nizkor/nuremberg/nprinciples.html)
34 Estatuto de Roma, UN Doc. A/CONF. 183/9; 37 ILM 1002
(1998); 2187 UNTS 90, art 10.
35 Id., art 22.
37 La acción de inconstitucionalidad procede por razones de forma
o de fondo. En esta última hipótesis, la SCJ debía analizar si existe
un conflicto entre la norma impugnada y la Constitución de la
República (CR). Es un juicio lógico jurídico de compatibilidad
entre dos normas -una de mayor jerarquía- que debe prevalecer.
38 Suprema Corte de Justicia, sentencia Nº 20 “M.L., J.F.F., O.—
Denuncia” IUE 2-109971/2011, sobre la los artículos 1, 2 y 3 de la
ley Nº 18.831—22 de febrero de 2013.
39 Ley 18.831, art.2.
41 Id., art. 72.
42 Id., art. 10.
43 Suprema Corte de Justicia, sentencia Nº 20 “M.L., J.F.F., O.—
Denuncia” IUE 2-109971/2011, sobre la los artículos 1, 2 y 3 de la
ley Nº 18.831—22 de febrero de 2013.pág 23.
44 Ley 18.831, art. 3.
46 Código Penal de la Republica, art. 10 (http://www.parlamento.
gub.uy/Codigos/CodigoPenal/ Cod_Pen.htm) (último acceso
09/06/2013).
47 Esta sentencia de la SCJ y otros hechos singulares como el
traslado sin explicación de la Dra. Mariana Mota, una de las pocas
magistradas que había asumido públicamente su decisión de avanzar
en las investigaciones, y la negativa de la propia SCJ de concurrir al
Parlamento para aclararlo, muestran de la persistencia, consistencia
y vigor de la cultura de la impunidad en Uruguay.
17
Defining Myanmar’s “Rohingya Problem”
by Benjamin Zawacki*
M
uch has been written either empathetically or as
a challenge of Myanmar’s “Rohingya problem.”
Between June and November 2012, the Rohingya
bore the brunt of communal violence, human rights violations,
and an urgent humanitarian situation in Rakhine State, and still
face an uncertain future.
in the eyes of the Myanmar authorities at least—as evidenced
by the lack of legal accountability for civilians and officials
alike—discrimination also makes the violence and violations
somehow justifiable. This is the Rohingya problem boiled down
to its most basic element.
In 1978’s “Dragon King” operation,
the Myanmar army committed widespread
killings and rapes of Rohingya civilians,
and they carried out the destruction of
mosques and other religious persecution.
These events resulted in the exodus of an
estimated 200,000 Rohingya to neighboring Bangladesh. Another campaign
of forced labor, summary executions,
torture, and rape in 1992 led to a similar
number of Rohingyas fleeing across the
border. In February 2001, communal
violence between the Muslim and Buddhist populations in
Sittwe resulted in an unknown number of people killed and
Muslim property destroyed.1 In late 2008 and early 2009,
Thai authorities pushed back onto the high seas several
boats—lacking adequate food, water, and fuel—of Rohingyas
in the Andaman Sea.2
A great deal of rhetoric has attended
these accounts—by officials and citizens
of Myanmar, Rohingya organizations,
journalists, human rights groups, and
others—essentially attaching labels to
the situation. And while there have been
a number of thoughtful attempts to define
or even explain the Rohingya problem in
historical or political terms, they have
been largely drowned out by emotive
outbursts and media-friendly sound bites.
This is not only unfortunate, it is also consequential, for as was
seen in 2012, rhetoric can influence both the way in which a
crisis plays out as well as in how it is responded to. In other
words, how we talk about what it is we are talking about matters.
What do we mean when we talk about the “Rohingya problem”?
[I]n the eyes of the
Myanmar authorities at least
. . . discrimination makes
violence and violations
somehow justifiable.
In proffering a modest definition of Myanmar’s “Rohingya
problem”—one almost entirely of its own making—three
distinct but related areas of law and fact warrant particular
examination: 1) nationality and discrimination, which focuses
exclusively on Myanmar; 2) statelessness and displacement,
which implicates Myanmar’s neighbors as well; and 3) the
doctrine of the Responsibility to Protect, which draws into the
discussion the role of the international community.
All of these events have similar, separate equivalents in
countries in which systemic discrimination does not take place.
Yet in Myanmar such discrimination provides the violence
with a ready-made antecedent, expressly approved by the state.
Indeed to varying degrees, the seminal events noted above
were simply exacerbations of this underlying discrimination:
alarming episodic symptoms of a chronic legal, political, and
economic illness. It would overstate the causality to assert that if
Myanmar had never put its system of discrimination against the
Rohingya into place, then these events would not have occurred.
Eliminating it now, however, is urgently required for a future
of sustainable peace in Rakhine State. Equally important, it is
imperative under human rights law.
These three areas demonstrate that although the root causes
of the “Rohingya problem” are within Myanmar, their effects are
felt regionally and are of relevance even further afield. They are
thus progressively causal, and they imply where efforts toward
solutions should be directed and prioritized.
The system’s anchor is the 1982 Citizenship Law, which in
both design and implementation effectively denies the right to a
nationality to the Rohingya population. It supersedes all previous
citizenship regimes in Myanmar.3 The 1982 Citizenship Law
creates three classes of citizens—full, associate, and naturalized
—none of which has been conferred on most Rohingyas.
Nationality and Discrimination
The violent events of 2012, as well as those of 1978, 1992,
2001, and 2009, can be attributed to systemic discrimination
against the Rohingya in Myanmar. That is, to a political, social,
and economic system—manifested in law, policy, and practice—
designed to discriminate against this ethnic and religious minority. This system makes such direct violence against the Rohingya
far more possible and likely than it would be otherwise. Further,
Myanmar reserves full citizenship for those whose ancestors
settled in the country before the year 1823 or who are members
of one of Myanmar’s more than 130 recognized national ethnic
groups, which do not include the Rohingya. Associate citizens
are those who both are eligible and have applied for citizenship
under a previous 1948 law. This requires an awareness of the law
that few Rohingya posses and a level of proof that even fewer
* Benjamin Zawacki is the Senior Legal Advisor for Southeast Asia
at the International Commission of Jurists, and a member of the
Council on Foreign Relations. The views expressed in this article,
however, are his own.
18
are able to provide. Access to naturalized citizenship is similarly,
available only for those who resided in Myanmar on or before
1948. With all three classes, the Central Body has the discretion
to deny citizenship even when the criteria are met.4
indisputably made citizens. Rohingyas born in Myanmar who
would otherwise be stateless should be granted citizenship, as
should those who are not born there but are able to establish a
genuine and effective link to the country. Myanmar should also
eliminate its policies and practices that discriminate against the
Rohingya on the grounds of ethnicity and/or religion.
The 1982 Citizenship Law’s discriminatory effects are also
extremely consequential. The main effect is that the Rohingya,
most of whom lack citizenship in Myanmar, have been rendered
stateless, both unable to avail themselves of the protection of the
state and—as has been the case for decades—subject to policies
and practices that constitute violations of their human rights and
fundamental freedoms. These include restrictions on movement;
forced labor; land confiscation, forced eviction, and destruction
of houses; extortion and arbitrary taxation; and restrictions on
marriage, employment, health care, and education.5 Although
not limited to Rohingyas, these restrictions are not imposed
in the same manner and to the same degree on Buddhists or
other Muslims in Rakhine State, or on other
ethnic minorities across the country.
This is systemic discrimination: laws,
policies, and practices, though designed
and carried out by people, are ultimately
part of or attributable to a system that
ensures discrimination even in the absence
of discriminatory individuals.
It is unlawful. As a member of the
United Nations, Myanmar is legally obliged
to promote “universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to
race, sex, language, or religion,” as declared
in Articles 55 and 56 of the UN Charter.
More than any other single step, dismantling its system
of discrimination would bring Myanmar’s Rohingya problem
closer to a solution.
Statelessness and Displacement
Because Myanmar’s Rohingyas have been deprived of a
nationality, they are rendered stateless. The human rights effects
of this both for Rohingyas inside Myanmar and those living
abroad as refugees are substantial.
[L]aws, policies,
and practices . . . are
ultimately part of
or attributable to a
system that ensures
discrimination even in the
absence of discriminatory
individuals.
Inside Myanmar, a kind of circularity
exists whereby systemic discrimination
renders the Rohingya stateless, while their
status as a stateless population acts as
validation for further discrimination and
persecution by the state and its citizens.
Because of this, access to a nationality is
commonly known as “the right to have
rights.”9 This description, however, is only
correct in fact but not as a matter of law;
all human rights belonging to citizens also
belong to stateless persons.
Immigration law may legitimately
distinguish between those with and those
without a nationality. But just as states’
authority to confer nationality is restrained
by a prohibition on denial based on ethnicity or religion, they
likewise cannot apply immigration law at the expense of basic
human rights and fundamental freedoms. Similarly, although
human rights law allows for the conditional suspension of
certain rights during emergencies, it does not permit—as was
the case during the state of emergency declared in northern
Rakhine State in June 201210—derogation from the right to life
(among other rights).
The Universal Declaration of Human Rights—though not
a binding document—provides in Article 15 that “everyone
has the right to a nationality.” Article 2 holds that everyone is
entitled to all the rights in the Declaration “without distinction
of any kind, such as race, color, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status.” So significant is this anti-discrimination language
that it can be found in five more international human rights
documents, including the Convention on the Rights of the Child
(CRC)6 and the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW).7
There are two international treaties on statelessness, neither
of which Myanmar has signed or ratified. At first glance, the
Convention Relating to the Status of Stateless Persons would
seem to be the more relevant to the Rohingya, for it pertains
to the treatment of de jure stateless persons. A de jure stateless
person is one “who is not considered as a national by any state
under the operation of its law.”11 Both its Preamble and Article
3 contain non-discrimination clauses, while other provisions
provide protections in respect to religion, property, employment,
education, public assistance, and social security,12 all implicating
the situation of the Rohingyas in Myanmar.
Myanmar has ratified both of these documents, making
their provisions binding on the state. According to Amnesty
International, it is a violation “to be deprived of one’s rights
because of a characteristic that one cannot change—such as
one’s race or ethnic origin—or because of a characteristic that is
so central to one’s being that one should not be forced to change
it, such as religion.”8
In addition, Article 7 of the CRC provides for the right of
a child to a nationality, “in particular where the child would
otherwise be stateless.” It is clear that Myanmar, as a State Party
to this treaty, is in violation of its international legal obligations
pertaining to the right of Rohingya children to a nationality.
Yet, it is far from clear that the Convention would even apply
to the Rohingya in Myanmar, as it applies only to stateless
persons deemed to be legally residing in the country at issue.
Applicability would thus turn on whether, by virtue of the 1982
Citizenship Law, the Rohingya are deemed by Myanmar not to
be legally residing in its territory, or whether other actions by
the authorities since 1982 indicate or confer legal residency.13
Myanmar should substantially amend the 1982 Citizenship
Law or repeal and redraft it, such that the Rohingya are
19
of northern Rakhine State, land confiscation, evictions from
homes and homesteads, and the construction of model villages.17
The UN Guiding Principles on Internally Displaced Persons,
with its focus on rights and non-discrimination, should form the
basis of the Myanmar government’s treatment of these internally
displaced Rohingyas, but clearly this has not been the case.
Although non-binding, the Principles contemplate all those
internally displaced, including stateless persons.
It is believed that more Rohingya live outside Myanmar than
the estimated 800,000 who live inside the country,18 creating
an involuntary diaspora through two and a half decades of
both overt forced deportation and removal by state authorities,
as well as the communal violence state policy has facilitated.
These people are not simply refugees—a difficult enough
status to cope with—but stateless persons outside their territory
of habitual and historical residence.
Courtesy United Nations Development Programme
This status does not change the root causes of the Rohingya
problem, but it does extend the focus beyond Myanmar alone
and onto its immediate and regional neighbors. Saudi Arabia is
thought to host 500,000 Rohingyas.19 In Bangladesh, the country
that has and continues to host the largest number of recognized
and unrecognized Rohingya refugees, 29,000 live in official
camps, while another 200,000 live in makeshift settlements or
amidst the local border population.20 Smaller populations reside
in Malaysia, Thailand, Indonesia, and India. October each year
marks the start of the annual six-month sailing season, wherein
Rohingyas flee persecution in Myanmar via smugglers on boats
that are often unseaworthy.21
Rohingya were permitted in 1990 to form political parties
and vote in multiparty elections. Myanmar accepted some
250,000 repatriated Rohingya refugees from Bangladesh in
1992 and in 1994 began issuing Temporary Resident Cards to
some of them (although the country also ceased issuing birth
certificates to Rohingya babies the same year). Rohingyas were
permitted to vote in both the 2008 Constitutional referendum
and the 2010 national elections, for which they were also
granted a form of temporary identification card. As Myanmar
does for all residents, the authorities have maintained lists
of Rohingya families for several decades.
If the 1982 Citizenship Law renders the Rohingya illegal
residents, then the Convention Relating to the Status of Stateless
Persons reflects and actually contributes to the circularity in
Myanmar described above. It effectively “scores an own goal”
by allowing states—through the very discrimination it was
designed to contest—to opt out of adhering to its provisions.
If the authorities do consider the Rohingya as legally residing
in Myanmar, however, then the Convention would apply, and
Myanmar should be urged to ratify and implement it.14
None of these countries fully respects the Rohingyas’ right
to seek and enjoy asylum or the right to not be sent back to a
country in which they have a well-founded fear of persecution
on grounds of (among others) ethnicity or religion. Known as
non-refoulement, this principle makes irrelevant the fact that the
countries mentioned are not States Parties to the UN Convention
on the Status of Refugees.22 The prohibition against involuntary
return of asylum-seekers and refugees is a matter of customary
international law, meaning that it applies regardless of a nation’s
treaty status.
The Convention on the Reduction of Statelessness, in
contrast, is of indisputable relevance to Myanmar’s Rohingyas,
as it obligates States Parties to prevent, reduce, and avoid statelessness through taking certain positive measures, especially by
granting “its nationality to a person born in its territory who
would otherwise be stateless.”15 This Convention should thus
be the focus of increased advocacy as a solution to the problem.
Instead, citing immigration concerns, economic incentives
or constraints, or questionable claims of national security,23 all of
these countries have resorted to detention, forced repatriation, the
deprivation of basic necessities on the high seas, informal deportation to traffickers, and/or direct participation in trafficking.
The human rights and humanitarian records of Bangladesh and
Thailand in particular have long been notably poor in relation to
the Rohingya.24 As such, they are in breach of their international
legal obligations pertaining to asylum-seekers and refugees.
At least hundreds of thousands of Rohingyas have been
physically displaced over the past 25 years, both internally and
outside of Myanmar. Although hardly an exhaustive list, the five
seminal events noted above, in 1978, 1992, 2001, 2009, and
2012, all featured or resulted in such displacement. Internally,
not only has communal violence displaced Rohingyas, but state
policy, practice, and participation—including in either instigating or failing to stop communal violence—have accounted
for internal displacement as well. At least 115,000 Rohingyas
are still in camps away from their homes in the wake of last
year’s clashes.16 State authorities have forcibly or arbitrarily
transferred Rohingyas over the years through militarization
Further, none of the countries directly affected by the
Rohingyas’ displacement is a party to the Convention on the
Status of Stateless Persons. While, as explained above, this
Convention possibly acts against its own interests in Myanmar,
it is notably appropriate to its regional neighbors.25 Unable to
avail themselves of the diplomatic or consular protection of
Myanmar, the Rohingyas’ stateless status places them in the
same position everywhere, whereby their “right to have rights”
is seen by the authorities as lacking. It simply compounds the
precariousness of their situation.
20
Along with ending systemic discrimination in Myanmar,
a solution to the Rohingya problem would be significantly
advanced if Myanmar and its regional neighbors abided
by the human rights provisions pertaining to stateless persons
and refugees.
Interestingly, Schabas is also the author of a 2010 report
titled Crimes against Humanity in Western Burma: The Situation
of the Rohingyas, in which he concluded that “[u]nder the
circumstances, it does not seem useful at this stage to pursue
an analysis that necessarily depends on an expansive approach
to the definition of genocide.”31 He explained that international
tribunals and other bodies have been unwilling to interpret the
scope of genocide beyond “the intentional physical destruction
of a group,”32 and so clearly implied that such intentional
physical destruction of the Rohingya as a group was not taking
place. While not ruling out the technical charge of genocide
based on a “simplistic analysis of the factual findings” of the
report, Schabas steered clear of assessing the Rohingya situation
through the application of the genocide definition.33
The Responsibility to Protect
The doctrine of the Responsibility to Protect, agreed upon by
the UN General Assembly in the 2005 World Summit Outcome
Document, has three main pillars: 1) the state carries the primary
responsibility for protecting populations from genocide, war
crimes, crimes against humanity and ethnic cleansing, and their
incitement; 2) the international community has a responsibility
to encourage and assist states in fulfilling this responsibility;
and 3) the international community has a
responsibility to use appropriate diplomatic,
humanitarian and other means to protect
populations from these crimes. If a state
is manifestly failing to protect its populations, the international community must be
prepared to take collective action to protect
populations, in accordance with the Charter
of the United Nations.26
This doctrine applies to the situation of
the Rohingyas in Myanmar if one or more
of the four expressed crimes is being or
has been committed against them, and if
Myanmar is “manifestly failing” to protect
them.
If a state is manifestly
failing to protect
its populations, the
international community
must be prepared to take
collective action to protect
populations.
Have the circumstances and factual
findings since 2010 changed such that at
this stage an argument would be persuasive
that an intentional physical destruction of
the Rohingya is underway in Myanmar?
Schabas’s remarks on Al-Jazeera are essentially consistent with his 2010 report, as
most of what he notes is not necessarily
aimed at physically destroying the Rohingya
as a group, and even the communal violence
of 2012 and the government’s response—
which he does not address—do not clearly
implicate such an expansive definition
of genocide.
Rather, what the Rohingya have exper
ienced for decades recalls Schabas’s conclusion in 2010: crimes
against humanity. A crime against humanity is defined in the
Rome Statute of the International Criminal Court as “any of the
following acts when committed as part of a 1) widespread or
systematic 2) attack directed against any 3) civilian population,
4) with knowledge of the attack”.34 Schabas added that it is
necessary that the perpetrator act pursuant to or in furtherance
of a state or organizational policy.35
As there is no armed conflict in Rakhine State, war crimes
are clearly not at issue. Genocide, however, was claimed on dozens of other occasions during the latter half of 2012, mostly by
journalists, commentators, and Rohingya activists, but also by
the Organization of Islamic Cooperation (OIC) in November.27
International law defines genocide as acts “committed with
intent to destroy, in whole or in part, a national, ethnical, racial
or religious group.”28 Such acts are listed as killing members
of the group, causing serious bodily or mental harm to members
of the group, deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole
or in part, imposing measures intended to prevent births within
the group, and forcibly transferring children of the group to
another group.29
Among the eleven acts listed in the Rome Statute, nine are of
varying relevance to the Rohingya in Myanmar: murder; forcible
deportation or transfer of a population; imprisonment or other
severe deprivation of physical liberty in violation of fundamental
rules of international law; torture; rape, enforced sterilization,
or any other form of sexual violence of comparable gravity;
persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, or religious grounds;
enforced disappearance of persons; the crime of apartheid; and
other inhumane acts of a similar character intentionally causing
great suffering or serious injury.36
The most credible use of the term in relation to Myanmar
came from Professor William Schabas, who from 2009-2011
was a member of the International Association of Genocide
Scholars. In an Al-Jazeera documentary entitled “The Hidden
Genocide” that first aired on December 9, 2012, he stated:
Schabas argued that “the Rohingya are the prima facie
victims of the crime against humanity of persecution,”37 consisting
of “the severe deprivation of fundamental rights on discriminatory grounds.”38 The analysis is not dissimilar to discrimination
discussed above, though placed squarely within the five elements
that constitute a crime against humanity. Schabas also accurately
asserted that the government of Myanmar has perpetrated the
forcible transfer of the Rohingya population, via expulsion or
other coercive acts.
[I]n the case of the Rohingya we’re moving into a zone
where the word can be used. When you see measures
preventing births, trying to deny the identity of a people,
hoping to see that they really are eventually—that they
no longer exist—denying their history, denying the
legitimacy of their right to live where they live, these
are all warning signs that mean that it’s not frivolous
to envisage the use of the term genocide.30
21
He stopped short, however, of concluding that this crime
against humanity also constitutes ethnic cleansing and it is
here that his overall argument—accurate enough in 2010—is
incomplete in view of the events of 2012. Ethnic cleansing is
“rendering an area ethnically homogeneous by using force or
intimidation to remove persons of given groups from the area.”39
It is distinct from genocide in its intent—to remove rather than
destroy the group. Schabas stated: “Since at least 1978, the
SPDC40 have persistently tampered with the ethnic make-up
of the region. However, it cannot be said with any degree of certainty that the intent behind such actions is to ethnically cleanse
North Arakan State.”41 This would no longer seem to be the case.
of Rohingyas had fled the state capital of Sittwe, where their
homes, shops, and mosques were destroyed like those of their
compatriots elsewhere.55 According to Border Affairs Minister
Lt. Gen. Thein Htay, the city reportedly consisted of “lines that
cannot be crossed.”56 However, in what was described as their
largest ever public gathering, ethnic Rakhines in Sittwe “laid
out an ultra-nationalist manifesto approving, among other things
. . . the formation of armed militias, . . . removal of Rohingya
villages, and the reclamation of land that had been ‘lost’ to [the
Rakhines].”57 They also came out against plans to reunite their
community with the Rohingya.58
In October, a week before the second outbreak of violence
on October 21, hundreds of ethnic Rakhines, including monks,
demonstrated for several days in support of relocating the
residents of the Aung Mingalar part of Sittwe, an almost entirely
Muslim area.59 Human Rights Watch observed, “Segregation
has become the status quo.”60 In the midst of the violence,
several hundred Buddhists reportedly demonstrated in Sittwe in
support of a ten-point document circulated by the All-Arakanese
Monks’ Solidarity Conference, calling for the targeting of
Rohingya sympathizers as national traitors, and the expulsion
of Rohingyas from Myanmar.61 Most Rohingya neighborhoods,
including unburned buildings, were bulldozed in the days following the violence.62 Further, as the government admitted that
the violence against the Rohingya was instigated and organized,
rather than spontaneous,63 the New York Times reported that
anti-Islamic pamphlets appeared in Rakhine State.64
Action by ethnic Rakhine Buddhists and inaction by the
authorities—both aided and abetted by years of persecutory
policy and recent statements by officials—strongly suggest that
what is being prosecuted in Rakhine State is an effort to remove
the Rohingya from the area. President Thein Sein himself
set the tone in July when he stated that the Rohingya could
not and would not be accepted as either citizens or residents
of Myanmar, and he asked the UN High Commissioner for
Refugees (UNHCR) to consider placing them in camps outside
of the country and resettling them to others.42 That is, he wanted
them removed from Myanmar.
It is true that both he and other officials have moderated
that position to some extent since.43 In August, the President
pledged to open more schools for Rohingya.44 In September
the Minister of Immigration stated that the Rohingya have
the right to apply for citizenship,45 and the Vice President
pointedly called for increased economic development for “both
sides” in Rakhine State.46 In November the Foreign Minister
pledged to return the displaced in Rakhine State to their homes
as soon as possible.47 That month the President wrote a letter
to the UN Secretary-General promising unspecified rights for
the Rohingyas.48
By November—when the number of displaced persons
reached roughly 115,000 and consisted almost entirely of
Rohingyas65—the situation was most accurately described by
The Economist:
[I]ts main contours are clear: a vicious and bloody
campaign of ethnic cleansing by) (the Rakhines that is
intended to drive Rohingyas out. Rakhine politicians
say frankly) (that the only alternative to mass deportation is a Burmese form of apartheid, in which more
Rohingyas are corralled into squalid, semi-permanent
internal-refugee camps.66
Despite these words, however, the actions, developments,
and facts on the ground still support the conclusion that ethnic
cleansing49 is underway in Rakhine State. Proceeding chronologically and merging relevant official actions and statements
with those of relevant non-state actors,50 in August the Rakhine
Nationalities Development Party’s (RNDP) Dr. Aye Maung
reportedly urged rice sellers to refuse Rohingya buyers and said
that Rakhine State should “be like Israel.”51 In a review of the
situation prepared for Parliament that month, President Thein
Sein reportedly stated that ethnic Rakhines were targeting and
terrorizing the Rohingya population, and that Rakhines could
not accept Rohingyas as citizens or residents of Myanmar.52
In September, groups of monks in Mandalay demonstrated for
several days urging the removal or internment of the Rohingya
in Myanmar.53 The U.S. deputy national security advisor noted
this problem and stated, “In Burma, preferential treatment
for Buddhists and prejudice against ethnic South Asians,
particularly ethnic Rohingya Muslims, fuels tensions between
the Buddhist majority and Christian and Muslim minorities.”54
That month, Buddhist groups reportedly prevented doctors
and aid workers from delivering medical assistance to camps of
Rohingyas, and distributed pamphlets threatening them against
continuing their work in Sittwe.67 Reuters reported that military
sources said the second wave of attacks against the Rohingya
—resulting in several more villages completely destroyed
or cleansed—were planned and orchestrated by Rakhine nationalists tied to the RNDP (which denied official involvement).68
Echoing the title of an August 2012 Human Rights Watch report
produced after the initial violence (The Government Could
Have Stopped This), a member of the National Democratic
Party for Development, said “There were [threats of violence]
ahead of the riots—we knew Kyaukphyu was going to burn and
repeatedly warned concerned government authorities about it
but they kept on saying ‘we got it’ and then the town was burnt
down.”69 A government self-survey of ethnicity in Rakhine State
did not contain the option of “Rohingya,” with those refusing
to choose “Bengali” reportedly designated as such against their
will or excluded altogether—in both cases potentially making
them “illegal.”70
By mid-September, an estimated 76,000 persons in Rakhine
State were living in camps. Most were Rohingyas, unable to
work, go to school, buy goods either inside or outside the
camps, or even leave them without fear of being beaten by ethnic
Rakhines or detained by the authorities. Farther south, thousands
22
December saw vehement official denials of the Al-Jazeera
documentary’s conclusions, noted above, though the report’s
findings were revealing. A Burmese academic stated that
Rakhine State is “our ancestral land, we cannot share that land,
you know, for any aliens or immigrants.”71 He also said that “no
Muslim, no Bengali living in that town [of Taungoo] because
the town people, town folk, do not allow any Bengali people
to come here.”72 A Sittwe-based monk not only repeated this
statement but reasoned it is why ethnic Rakhine Buddhists killed
ten Muslims there in early June, setting off the initial communal
violence: “They felt insulted and were furious when ten Muslims
dared to pass through the town.”73
Al-Jazeera displayed a July 2012
statement by the RNDP’s Dr.
Aye Maung that “Bengali people
should be relocated to suitable
places . . . in order not to reside
or mix with Rakhines.”74 And it
stated that in the Aung Mingalar
section of Sittwe, the Rohingyas
“are fenced in and cannot leave.”75
regarding Myanmar that expressed its “serious concern” about
the situation in Rakhine State.82 It also called for government
action in relation to “arbitrarily detained persons,” the “return
of individuals to their original communities,” the “restitution of
property,” and a “policy of integration . . . and peaceful coexistence.”83 Although the government “accepted” the General
Assembly’s calls, it undermined its approval by protesting the
use of the word “Rohingya” in the resolution.84
The General Assembly did not formally invoke the
Responsibility to Protect. Possible reasons include that it did
not judge the situation in Rakhine State to constitute crimes
against humanity and/or ethnic
cleansing that it deemed that
Myanmar itself was exercising its
primary responsibility to protect
its citizens, or that it assessed that
the notoriously difficult political
hurdles attending the doctrine’s
successful invocation made it
a non-starter. Only the third
possibility is valid: ethnic cleansing is taking place in Myanmar,
and as Myanmar is “manifestly
failing to protect its populations,
the international community must be prepared to take collective
action to protect populations, in accordance with the Charter
of the United Nations85….”
Primary responsibility rests with
the Myanmar government to protect
those whose right to a nationality
the country has long denied, but its
regional neighbors have legal and
humanitarian obligations[.]
By the end of 2012, hundreds of
Rohingya villages or settlements
had been destroyed, tens of thousands of homes razed, and at least 115,000 Rohingyas displaced
in camps or “ghettos” in Myanmar, across the Bangladeshi border,
or further afield on boats.76 According to the International Crisis
Group, “There have been indications that the local authorities .
. . might invoke colonial-era legislation that empowers them to
reclaim areas damaged by fire as state-owned land.”77 Officials
stated that the segregation was temporary for the safety of the
Rohingyas and intended to prevent further violence, which was
doubtless true in July when the process began. That organized
violence had broken out again in October, however, and that the
segregation had only increased, exposed the weakness of the
statement in fact if not intent. Indeed, the most convincing indication that ethnic cleansing—the forcible removal—of the Rohingya
in Rakhine State is underway is that so many have in fact been
removed from their homes, neighborhoods, cities, and country.78
The Rohingya problem has been referred to and described in
different ways, and certainly it is more than a matter of nationality and discrimination, statelessness and displacement, and the
Responsibility to Protect. Yet the initial two areas have assumed
particular factual and legal significance over the past three
decades, as persecution of the Rohingya within Myanmar and its
effects regionally have continued unabated. The third area—not
unrelated to the others—should assume equal importance and
attention, but thus far it has not. All three issues are progressive
in their application to the Rohingya: persecutory discrimination
and statelessness includes and leads to forcible displacement,
which combined constitute crimes against humanity and ethnic
cleansing and implicate the Responsibility to Protect.
Certain lawmakers in Indonesia, Egypt, Saudi Arabia, and
Japan referred to the situation in Rakhine State as ethnic cleansing
in August and September. The Organization of Islamic
Cooperation “expressed disappointment over the failure of the
international community to take action,”79 and Saudi Arabia
urged the “international community to take up its responsibilities by providing needed protection.”80 The formal doctrine of
the Responsibility to Protect, however, gained no appreciable
traction among policy-makers.81
Primary responsibility rests with the Myanmar government
to protect those whose right to a nationality the country has long
denied, but its regional neighbors have legal and humanitarian
obligations of their own vis-à-vis the Rohingya, as does the international community. The Rohingya problem begins at home—and
could well end there with enough political will. Failing that, as has
been the case since June 2012 if not decades, regional countries
and the wider world should act to address the displacement and
statelessness, and to stop the violence and violations.
In November, the UN General Assembly (within which
the Responsibility to Protect originated) adopted a resolution
Endnotes
1
3
See, e.g., Amnesty International, Myanmar: The Rohingya
Minority: Fundamental Rights Denied (2004).
2 See, e.g., Human Rights Watch, Perilous Plight: Burma’s
Rohingya Take to the Seas (2009).
These existed in 1947, 1948, and 1971.
See Burma Citizenship Law [Myanmar] (Oct. 15, 1982),
http://www.unhcr.org/refworld/docid/ 3ae6b4f71b.html, (last
visited Nov. 13, 2012).
4
23
5
26
See, e.g., Amnesty International supra note 1; The Equal
Rights Trust, Burning Homes, Sinking Lives: A situation report
on violence against stateless Rohingya in Myanmar and their
refoulement from Bangladesh (2012); Human Rights Watch, “The
Government Could Have Stopped This”: Sectarian Violence and
Ensuing Abuses in Burma’s Arakan State (2012).
6 Myanmar ratified the treaty on July 15, 1991.
7 Myanmar ratified the treaty on July 22, 1997.
8 Amnesty International, supra note 1.
9 The Equal Rights Trust, supra note 2.
10 See Human Rights Watch, “supra note 2, at 24–27.
11 United Nations Convention relating to the Status of Stateless
Persons art. 1(1), Sept. 28, 1954, 360 U.N.T.S. 117. See also UN
High Commissioner for Refugees, Guidelines on Statelessness No.
1: The definition of “Stateless Person” in Article 1(1) of the 1954
Convention relating to the Status of Stateless Persons, ¶¶ 35-37,
U.N. Doc. HCR/GS/12/01 (Feb. 20, 2012).
12 See United Nations Convention relating to the Status of Stateless
Persons art. 4, 13, 22, 23, 24, Sept. 28, 1954, 360 U.N.T.S. 117.
13 See UN High Commissioner for Refugees, Guidelines on
Statelessness No. 1: The definition of “Stateless Person” in Article
1(1) of the 1954 Convention relating to the Status of Stateless
Persons, ¶¶ 35-37, U.N. Doc. HCR/GS/12/01 (Feb. 20, 2012).
14 See UN High Commissioner for Refugees, Guidelines on
Statelessness No. 3: The Status of Stateless Persons at the National
Level, U.N. Doc. HCR/GS/12/03 (July 17, 2012).
15 United Nations Convention on the Reduction of Statelessness,
art. 1, Aug. 30, 1954, 989 U.N.T.S. 175.
16 See U.N. Central Emergency Response Fund, CERF Provides US
$5.3 million for conflict-affected people in Myanmar, Nov. 26, 2012
available at http://www.unocha.org/cerf/cerf-worldwide/where-wework/mmr-2012 Myan.: Displacement in Rakhine State, U.N. Office
for the Coordination of Humanitarian Affairs , Situation Rep. No. 9,
Oct. 5, 2012. (Myan. Situation Rep. No.5, Oct. 5, 2012).
17 See, e.g., Crimes against Humanity in Western Burma: The
Situation of the Rohingya, Irish Centre for Human Rights, Nat’l.
Univ. of Ir., Galway, 2010.
18 See, The Equal Rights Trust, supra note 2, at 28; U.N. High
Commissioner for Refugees, Myan. Fact Sheet (September 2012)
available at http://www.equalrightstrust.org/ertdocumentbank/
UNRAVELLING%20ANOMALY% 20small%20file.pdf.
19 See Imtiaz Ahmed, Globalization, Low-Intensity Conflict &
Protracted Statelessness/Refugeehood: The Plight of the Rohingyas,
in The Maze of Fear: Sec. & Migration After 9/11, 186 (John
Tirman ed., 2004).
20 See U.N. High Commissioner for Refugees, Country Operations
Bangl. (Oct. 2012), http://www.unhcr.org/ cgi-bin/texis/vtx/
page?page=49e487546&submit=GO.
21 See Human Rights Watch Ad Hoc and Inadequate: Thailand’s
Treatment of Refugees and Asylum Seekers, 75-79 (2012).
According to the Arakan Project, the 2012-2013 season has seen
has seen more than 20,000 Rohingyas leave Myanmar on boats.
22 See Convention Relating to Status of Refugees, art. 33(1),
Apr. 24, 1954, 189 U.N.T.S. 150.
23 See id., art. 33(2).
24 In February 2013, Human Rights Watch accused the Thai Navy
of opening fire at a boat of Rohingyas, killing two. See e.g. The
Equal Rights Trust,supra note 2.
25 See U.N. High Commissioner for Refugees, Guidelines on
Statelessness No. 3: The Status of Stateless Persons at the National
Level, HCR/GS/12/03 (July 2012), http://www.unhcr.org/refworld/
docid/ 5005520f2.html.
See Office of the Special Adviser on the Prevention of
Genocide, The Responsibility to Protect, http://www.un.org/en/
preventgenocide/adviser/responsibility.shtml.
27 See Stop Rohingya Genocide: OIC, On Islam Nov. 17, 2012,
http://www.onislam.net/english/news/asia-pacific/460041stop-rohingya-genocide-oic.html.
28 Convention on the Prevention and Punishment of the Crime
of Genocide, art. II, Dec. 9, 1948, 78 U.N.T.S. 1021.
29 See id.
30 The Hidden Genocide, Al Jazeera, Dec. 9, 2012, http://
www.aljazeera.com/programmes/aljazeerainvestigates/
2012/12/2012125122215836351.html.
31 Irish Centre for Human Rights, Crimes against Humanity
in Western Burma: The Situation of the Rohingyas 29-30 (2010).
32 Id. at 29.
33 Id.
34 Rome Statute of the International Court, art. 7, U.N. Diplomatic
Conference of Plenipotentiaries on the Establishment of an Inter
national Criminal Court, U.N. Doc. A/CONF/183/9 (July 17, 1998).
35 Irish Centre for Human Rights, supra note 31, at 31–32.
36 Rome Statute, supra note 34.
37 Irish Center for Human Rights, supra note 31, at 137.
38 Id. at 138.
39 Case Concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (Judgment), para. 190, Feb.
26, 2007.
40 State Peace and Restoration Council, Myanmar’s governing body
at the time.
41 Irish Centre for Human Rights, supra note 17, at 112.
42 See Democratic Voice of Burma, Gov’t will not recognise
Rohingya: Thein Sein, July 12, 2012.
43 The government established of a 27-member commission to
investigate the initial outbreak of violence; assigned the same task
to the National Human Rights Commission; initiated a second
investigation into the second outbreak of violence in October;
ordered that weapons be turned into the authorities; rebuked the
RNDP’s nationalist language; and pledged to bring perpetrators of
the violence to justice. However, the Foreign Minister denied in
August both human rights violence and a “policy of abuse” against
the Rohingya, and in September, Rakhine State’s Attorney-General
denied religious persecution of the Rohingya.
44 See Michael Lipin, Burma’s President to open schools for
Muslims, Voice of America Aug. 14, 2012.
45 See, Rohingyas ‘have the right’ to apply for Burmese citizenship:
minister, Mizzima News, Sept. 13, 2012.
46 Burma’s vice president calls for development in Rakhine State,
Mizzima News Sept. 24, 2012.
47 See, Government to resettle refugees
in Arakan state: Burmese FM, Agence-France Presse, Nov. 6, 2012.
48 See, Myanmar’s president says he’ll consider new rights for
Rohingya minority ahead of Obama visit, Associated Press,
Nov. 19, 2012.
49 On August 3, 2012, Agence-France Presse quoted Indonesian
protesters outside the Myanmar Embassy in Jakarta expressing
anger at “Muslim cleansing” in Rakhine State. While the issues of
the Rohingyas’ ethnicity and religion (also a minority in Myanmar,
where an overwhelming majority of the population is Buddhist)
have become conflated since June 2012, this author believes that
religious persecution of the Rohingyas is part and parcel of, and
therefore subsumed by, their persecution on ethnic grounds.
50 While the author visited Myanmar twice in late 2012 and spoke
with a number of Rohingyas from Rakhine State, most of the factual
information in this Section has not been independently confirmed.
24
51 See Aye, Nai, Thein Sein meets with Arakan leaders, Democratic
Voice of Burma, Aug. 10, 2012.
52 See Agence-France Presse, Politicians and monks kindle hate,
Aug. 2012.
53 See, Monks in Myanmar rally to show support for president’s
anti-Rohingya plan, Assoc. Press Sept. 4, 2012.
54 See Lalit K. Jha, Burmese government fosters religious intolerance: US official, The Irrawaddy, Sept. 13, 2012.
55 Interview with Matthew Smith, Asia Researcher, Human Rights
Watch, in Kuala Lumpur, Malaysia (Sept. 18, 2012).
56 See Todd Pitman, Divided town challenges Myanmar’s democracy hopes, Assoc. Press, Oct. 1, 2012.
57 See Int’l Crisis Grp., Myanmar: Storm Clouds on the Horizon,
Asian Report No. 238, 2 (2012).
58 See id.
59 See Amelie Bottollier-Depois, Muslims trapped in ghetto
of fear in Myanmar city, Agence-France Presse, Oct. 19, 2012.
60 See Carey L. Biron, Myanmar’s Rohingyas Face ‘Permanent
Segregation’, Activists Warn, Inter Press Service, October 9, 2012.
61 See Hanna Hindstrom, Monk group calls on locals to target
‘Rohingya sympathizers,’ Democratic Voice of Burma, Oct. 23, 2012.
62 See Int’l Crisis Grp., supra note 58 at 5.
63 See Int’l Crisis Grp., supra note 58; Myanmar Says it Has
Evidence Communal Violence was Organized by Groups and
Individuals, Assoc. Press, Oct. 31, 2012.
64 See Mark McDonald, As Violence Continues, Rohingya Find
Few Defenders in Myanmar, N.Y. Times, Oct. 31, 2012.
65 Interview with Matthew Smith, Asia Researcher, Human Rights
Watch, Urbana-Champaign, Il., (Oct. 15, 2012).
66 Ethnic Cleansing in Myanmar: No Place Like Home, The
Economist, Nov. 1, 2012.
67 See Thomas Fuller, Threats Hinder Aid Myanmar, Doctors
Without Borders Says, N.Y. Times, Nov. 5, 2012.
68
Jason Szep and Andrew R.C. Marshall, Witnesses Tell of
Organized Killings of Myanmar Muslims, Reuters, Nov. 12, 2012.
69 Group Says Death Toll in Arakan Higher than Government
Figures, Democratic Voice of Burma, Nov. 13, 2012.
70 See, Rohingya Refuse to Register as ‘Bengali,’ The Irrawaddy,
Nov. 13, 2012.
71 Al Jazeera, supra note 30.
72 Id.
73 Id.
74 Id.
75 Id.
76 In what was widely seen as a dramatic underestimate, Myanmar
authorities claimed that 167 people died during the 2012 violence
in Rakhine State.
77 Int’l Crisis Grp., supra note 58, at 5.
78 In February 2013, Myanmar’s Immigration and Population
Minister denied the existence of the Rohingya during a
Parliamentary session.
79 See, OIC piles on Myanmar pressure, Bangkok Post,
Aug. 7, 2012.
80 See, Saudi accuses Burma of ‘ethnic cleansing’,
Agence-France Presse Aug. 8, 2012.
81 Through the end of 2012, the OIC and the UN SecretaryGeneral’s Special Advisor on Myanmar twice visited the country,
as did the Turkish Foreign Minister, a special envoy from Indonesia,
and the U.S. Ambassador, also visited the area.
82 67/233, ¶ 15, U.N. Doc. A/RES/67/233 (Dec. 24, 2012).
83 Id..
84 UN General Assembly voices concern for Myanmar’s Muslims,
Reuters, Dec. 25, 2012.
85 See Office of the Special Adviser on the Prevention of
Genocide, The Responsibility to Protect, http://www.un.org/
en/preventgenocide/adviser/responsibility.shtml.
25
Identity and the Sexual Minority Refugee:
A Discussion of Conceptions and Preconceptions
in the United Kingdom and Ireland
by Samantha K. Arnold*
A
Introduction
affect the sexual minority applicant in the pursuit of asylum.
Secondly, it highlights where stereotypes or assumptions are
imputed onto the applicant by the interviewer while discussing
the variety of ways in which a sexual minority applicant may
express sexual orientation and/or gender identity. In conclusion,
this article asserts that interviewers
do not apply a flexible enough
approach in determining whether or
not an applicant is indeed a member
of a sexual minority, for example, in
cases where the interviewer does not
deem self-identification as sufficient.
ll human beings, regardless of their sexual orientation,
have the right to the enjoyment and protection of
the fundamental freedoms outlined in the Universal
Declaration of Human Rights by virtue of their humanity.1
However, persons who identify as, or
are perceived to be, sexual minorities
—lesbian, gay, bisexual, trans, or
intersex persons—are regularly
denied these rights through discriminatory laws or national practices.
In 2010, the International Lesbian,
Gay, Bisexual, Trans and Intersex
Association (ILGA)2 organization
reported that countries repeatedly
breach the right to life, the right to
be free from torture and inhuman
treatment, and the right to non-discrimination.3 Although it is
each state’s responsibility to protect its citizens and persons
living within its territory in accordance with international
norms, the rights of sexual minorities often come into conflict
with the religious and cultural morals that govern society.4 For
example, at least 76 countries continue to prosecute individuals
on the basis of their sexual orientation.5 Thirty-eight countries in
Africa alone have laws criminalizing homosexuality.6 The ILGA
reported that in 2010, same-sex acts were punishable by death
in at least five countries: Iran, Mauritania, Saudi Arabia, Sudan,
and Yemen, as well as regions within Nigeria and Somalia.7
Sexual minority refugees often flee situations where states sanction discriminatory actions and policies toward sexual minorities,
or where states fail to protect their citizens from persecution on
the basis of their sexual orientation and/or gender identity.
A person’s gender and sexual
orientation . . . play a significant
role in self-perception, as well
as external perception and the
person’s place in a society.
Sexual Minorities
Both sexual orientation and gender
identity determine an individual’s
overall sexual identity and the characteristics associated with
personhood or personality. A person’s gender as well as sexual
orientation, whether one identifies as gay, straight or bisexual,
plays a significant role in self-perception, as well as external
perception and the person’s place in a society. Identity is a broad
concept, invariably influenced by a person’s environment, and is
expressed in diverse ways, through clothing, life-style choices,
partners, and many other factors.
Given the cultural, social, and personal significance of defining
one’s self as male, female, gay, or straight, terminology takes on
a significant role in defining how others perceive sexual orientations and gender identities. For example, the United Nations
High Commissioner for Refugees (UNHCR) often uses the term
“gay” to describe both men and women who have “enduring
physical, romantic, and emotional attractions” to persons of the
same sex9 in accordance with the Yogyakarta Principles, a document which summarizes human rights norms as they apply to
sexual minorities drafted in 2006 by lawyers and experts on the
subject.10 The Principles use the term “gay” to describe men and
the term “lesbian” to describe women.11 Both the UNHCR and
the Yogyakarta Principles define the term “bisexual” as either
men or women who are attracted to both men and women.12
Similarly, the term “trans,” although not universally accepted, is
an inclusive term referring to those whose biological and gender
identities or expressions are in tension with one another.13 This
umbrella term includes, inter alia, “preoperative, postoperative
or non-operative transsexuals, female and male cross-dressers,
drag queens or kings, female or male impersonators and intersex
individuals.”14 The term “intersex” refers to individuals whose
Despite fears of persecution, receiving countries often classify
protection applicants as economic migrants, not asylum seekers.8
This article, however, focuses specifically on the ways in which
the concepts of sexual orientation and gender identity are perceived using examples from Ireland and the United Kingdom,
and the impact that the factors have on their asylum claims.
First, it reflects on the conceptualization of sexual minorities
in receiving countries to analyze to what extent pre-conceived
notions of sexual orientation and gender identity adversely
* Samantha K. Arnold is a Ph.D. candidate, Trinity College Dublin,
and is presently the Children’s and Young Persons’ Officer at the Irish
Refugee Council.
26
biological makeup consists of more than one set of sexual
organs, hormones or physical characteristics. Intersex may refer
to someone who has both male and female characteristics or who
lacks any clear biological indication of sex.15
sexual minorities, there is wide variation along the spectrums
of sexual orientation and gender identity.24
There are great differences in characteristics, identity, and
attraction among the aforementioned groups.16 These differences
are important to consider in the asylum context, particularly as
there are cultural differences that may also affect the ways in
which sexual minorities present themselves to immigration
authorities.
The 1951 Convention on the Status of Refugees, as amended
by the 1967 Protocol, defines a refugee as a person who,
The Sexual Minority Refugee
owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside
the country of his nationality and is unable, or owing to
such fear, is unwilling to avail himself of the protection
of that country; or who, not having nationality and
being outside the country of his former residence as a
result of such events, is unable or, owing to such fear,
is unwilling to return to it.25
In order to address this, immigration officials should be
aware of the ways in which people define and express themselves within the sexual minority category of asylum-seekers to
avoid applying western preconceptions of behavior, mannerisms,
and appearance to individuals who may never have been able to
explore their own gender or sexual identity in their country of
origin. For example, in the European Union, it is often assumed
that if an individual identifies as gay, that person would be
familiar with various nightclubs, districts, or prominent sexual
minorities in the arts.17 There may also be an assumption by
immigration officials that the individual could identify a pink
triangle or the rainbow flag as symbols of sexual minority
revolution.18 Lord Roger, in HJ and HT v. SSHD, a United
Kingdom Supreme Court case discussed below, highlighted
similar assumptions when he described the activities of gay men:
This definition can be subdivided into five components that
establish: 1) a well-founded fear of persecution; 2) that the harm
feared or experienced amounts to persecution; 3) a well-founded
fear of persecution based on one of the five enumerated grounds
(race, religion, nationality, membership of a particular social
group, or political opinion); 4) that the applicant is outside of
his country of origin; 5) and that the applicant’s country of
nationality cannot or will not provide protection to the applicant.
All human beings have the right to seek asylum in another
country in accordance with Article 14 of the Universal
Declaration of Human Rights.26 Sexual minorities may also fall
within the scope of the 1951 Convention Relating to the Status
of Refugees. The UNHCR, in its Guidance Note on Refugee
Claims relating to Sexual Orientation and Gender Identity,
provides evidence suggesting that sexual minorities may invoke
the particular social group, race, religion, political opinion and/
or nationality nexuses.27 The UK Border Agency, in accordance
with the UNHCR guidelines, has determined that sexual
minority asylum seekers meet the requisite characteristics for
protection as persons belonging to a group sharing a common,
immutable characteristic that a person should not be required to
change, or the ‘particular social group.’28 In Ireland, the Refugee
Act 199629 specifically provides that sexual orientation meets
the particular social group criteria for qualification as a refugee,
as well.30 Thus, both the UK and Ireland have transposed into
domestic law the European Council Directive 2004/83/EC
of April 29, 2004 on minimum standards for the qualification
of third country nationals and stateless persons as refugees or
as person who otherwise need international protection and the
content of the protection granted (Qualification Directive), which
also provides that sexual orientation falls within the meaning of a
particular social group nexus. Article 10.1(d) states:
To illustrate the point with trivial stereotypical examples
from British society: just as male heterosexuals are free
to enjoy themselves playing rugby, drinking beer and
talking about girls with their mates, so male homosexuals
are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking
about boys with their straight female mates.19
However, in countries where sexual minorities are subjected
to persecutory actions or serious harm, many applicants from
those countries who identify as gay, lesbian, bisexual, or
otherwise may not exhibit any identifying characteristics as they
may have spent their life before fleeing to conceal their sexual
orientation and/or gender identity.20 It is therefore difficult for
applicants to provide immigration authorities with testimony of
past self-identification or of a sexual or gendered past as one
might not exist due to the applicant’s concealment. Similarly,
it is challenging to compile a list of characteristics associated
with western gay culture as many transsexual or trans applicants
may have actively chosen not to display or identify with those
characteristics. It would be even more difficult to produce a
list of recognizable characteristics arising from regions where
sexual or gender transgressions are punishable by law or death
because most gay and trans individuals actively avoid any
connection with recognizable characteristics. For example,
a 2010 publication from the UK lesbian, gay and bisexual
charity group Stonewall,21 No Going Back, reported that it is
common for interviewers in the UK Border Agency to assume
that someone who identifies as gay would be “flamboyant”
and someone who identifies as lesbian would be “butch.”22
However, as discussed herein, it would not be in an applicant’s
interest to ascribe to either “type,” as such classification may
have resulted in becoming a target of persecution before having
fled.23 Moreover, within the world’s disparate community of
[A] group shall be considered to form a particular
social group where in particular: members of that
group share an innate characteristic, or a common
background that cannot be changed, or share a characteristic or belief that is so fundamental to identity
or conscience that a person should not be forced to
renounce it, and that group has a distinct identity in
the relevant country, because it is perceived as being
different by the surrounding society[.]31
27
Sexual orientation, however, is only one part of the discourse
on sexual minorities. The concept of gender identity forms the
rest of the debate and is an integral factor for consideration when
assessing a claim for protection on the basis of the applicant’s
identification, or perceived identification, as a sexual minority.
The reason gender identity forms an integral part of the discourse
on asylum as it relates to sexual minority applicants is due to the
complexities associated with transgressing a social norm as it
relates to sexual behavior alongside gendered expression. The
ways in which a person identifies with one gender or another (or
a combination of the two generally accepted binary incarnations
of “gender”) may have further implications in respect to their
asylum claim. Gender identity is described in the Yogyakarta
Principles, as “each person’s deeply felt internal and individual
experience of gender, which may or
may not correspond with the sex
assigned at birth, and which includes
the personal sense of the body and
other expressions of gender, including dress, speech and mannerisms.”32
Some of these expressions may come
into conflict with societal norms or
laws in an applicant’s country of origin.33 However, expressions of gender
identity can vary greatly and thus it
is not always clear how to interpret
the ways in which an applicant may
present with certain characteristics,
especially where they come into conflict with ideas of gender expression
in the receiving country. Both of
these factors, the way applicants
express themselves and the way immigration officials interpret
those expressions, affect the asylum claim.
asylum-seekers are coming, and therefore applicants may not
have the vocabulary to express this aspect of their identity. This
is particularly true in countries that persecute individuals for
alternate gender identities, as discussed above. Moreover, applicants may be hesitant to disclose their sexual orientation and/or
gender identity due to feelings of shame or guilt, or memories of
past trauma.37 In other cases, applicants may feel intimidated to
disclose their sexual or gender identity to someone in a position
of authority, as police may have been agents of persecution in
their country of origin.38 Recognizing this challenge, UNHCR
advises that those responsible for assessing claims on this basis
take into account the difficulties in proving sexual orientation:
While some applicants will be able to provide proof
of their LGBT status, for instance through witness
statements, photographs or
other documentary evidence,
they do not need to document
activities in the country of
origin indicating their different sexual orientation or gender
identity. Where the applicant is
unable to provide evidence as
to his or her sexual orientation
and/or there is a lack of sufficiently specific country of origin
information the decision-maker
will have to rely on that person’s
testimony alone.39
Western stereotypes,
out-of-date country-of-origin
information and biased
immigration officials create
undue difficulty for members
of a sexual minority to prove
that they are in fact a sexual
minority and that they fear
persecution on that basis.
The responsibility to provide “proof ”
of one’s sexual orientation and/or gender
identity therefore not only rests with
applicants and their ability to convey testimony, but it also rests
with the decision maker in determining what weight to allocate
the applicant’s testimony of self-identification. As highlighted in
No Going Back, there is evidence that judgment may be clouded
by to a reliance on the receiving country’s stereotypical notions
of what it means to be “gay,” “lesbian,” or “trans,”40 all of which
may be completely inapplicable to members of a sexual minority from other cultures and countries. It is therefore extremely
difficult to prove one’s sexual orientation and/or gender identity
when there are several conceptions of what it means to be gay
or lesbian, for example. In Ireland and the UK, medical reports
and witness testimony may be used to support the applicant’s
sexual orientation.41
Gender identity is discussed in the UK Border Agency’s
Asylum Instruction: Gender Issues in the Asylum Claim,34 and
is referred to in terms of “gender related aspects” of an asylum
claim in the Qualification Directive.35 While this directive
recognizes gender identity, given long-standing cultural preconceptions and practices, the recognition of expressions of
gender identity in individual asylum claims continues to be
inconsistent.
Despite international and domestic law’s development in
the area of the right to asylum based on sexual orientation and/
or gender identity, sexual minority applicants face numerous
barriers related to satisfying a claim for protection. Specifically,
Western stereotypes, out-of-date country-of-origin information
and biased immigration officials create undue difficulty for
members of a sexual minority to prove that they are in fact a
sexual minority and that they fear persecution on that basis.36
Furthermore, although states might have a clear policy
and guidelines on what constitutes a sexual minority refugee,
because applicants who identify as a sexual minority may present in a variety of ways, often through expressing their gender
identity and/or sexual orientation as a result of their background
and individual development, immigration officials have a difficult time adequately implementing those policies. Immigration
officials in Ireland and the UK may not view the same act as
one that would make the applicant identifiable as a member of a
sexual minority and thus a possible subject of persecution. In one
case, a British immigration official reportedly asked whether or
not the applicant was familiar with the works of the poet Oscar
Wilde.42 This indicates an assumption that sexual minorities
have similar interests or behave the same way across the world.
The Sexual Minority Refugee in Ireland
and the United Kingdom
Immigration officials commonly expect or suppose that
an applicant will self-identify as a sexual minority at the first
instance. However, this poses a challenge to applicants and
their legal representatives, as there is often limited discourse on
sexual orientation and gender identity in countries from which
28
of persecution.55 If so, then the applicant has a well-founded
fear of persecution.56 This case set the standard in determining
sexual minority claims. Prior to this judgment, applicants were
frequently required to return to their country of origin, where
they would act discreetly in order to avoid persecution.57
Similarly, in Ireland, a study found that an applicant’s testimony
fell short of establishing his homosexual orientation because he
had never heard of one of the main gay bars in Dublin.43 What
immigration officials fail to consider is that members of sexual
minorities often take to concealing their sexual orientation and
restricting their own gender expression to avoid harm, discrimination, or persecution.44 Moreover, immigration officials may
also fail to acknowledge the role religion plays with respect to
social and cultural habits and customs; for example a Muslim
man who may have been raised to avoid consuming alcohol may
never have reason or a desire to seek out a gay bar.45
The judgment handed down in HJ and HT removed the
discretion requirement, except in cases where the applicant is
acting discreetly not out of fear of persecution but due to social
pressure regardless of whether or not there is a legitimate cause
for fearing persecution.58 Although this judgment is progressive, the line between discretion due to social pressures and
stereotypes and discretion due to a fear of persecution has not
been clarified. If the applicant would have a legitimate fear of
persecution, whether or not the applicant
would act “naturally” discreet or not should
be of no influence on the outcome of
the case.
These challenges exist despite the fact that the UK Border
Agency guidelines delve into the issue of assessing credibility in
asylum claims.46 The guidelines emphasize
being alert to mitigating factors that may
affect the delivery of testimony, i.e.: traumatic experiences, inarticulateness, fear,
distrust of authorities, shame, and reliving
painful memories—especially those sexual
in nature—which may affect the applicant’s ability to relate testimony or sexual
orientation and/or gender identity.47 For
these reasons, disclosure of an applicant’s
sexual orientation and/or gender identity
may be delayed or masked by feelings of
shame or guilt that may result in non-disclosure, late disclosure, or past repression
which means the applicant may not have
a sexual and/or gendered history.48
UK Standards
Individuals fleeing
violence on the basis of
their sexual orientation
may not be aware of the
possibility of applying for
protection on the basis of
sexual orientation and/or
gender identity and may
also suffer from guilt,
shame, or past trauma.
Most recently, in SW (Lesbians—HJ and
HT Applied) Jamaica v. SSHD, the UK’s
Upper Tribunal found that the applicant
was acting discreetly out of fear of persecution, and not due to social pressures.59
The appellant stated to the court that she
would not return to Jamaica and hide
her identity as a lesbian, nor would she
change her behavior. She was prepared to
put herself in danger to live openly after
having experienced repression in the past
and having experienced the relative freedom of life in the UK.60 This judgment is
consistent with HJ and HT and highlights
the importance of an in-depth analysis of
the reasons an applicant may have concealed his or her sexual
orientation in the past in conjunction with the court’s analysis of
the applicant’s fear of future persecution.
The United Kingdom courts, through
various decisions have also addressed the issue of sexual minority asylum claims. In HJ and HT v. SSHD, the UK Supreme
Court set out new guidelines in determining sexual minority
applications for protection.49 The approach set up by Lord Roger
in HJ and HT outlines four steps to assessing whether or not an
applicant who identifies as a sexual minority should be granted
protection considering whether or not the person is acting
naturally discreet or acting discreetly by necessity.50
However, a recent European report, Fleeing Homophobia,
suggests that Irish asylum decision-makers continue to argue
that applicants who identify as sexual minorities can safely
return to countries where they would be subject to persecution
by assuming (or requiring) that the applicants could return
and act discreetly to avoid persecution, and thus do not meet
the “well-founded fear of persecution” requirement for an
asylum claim.61 Decision makers are, however, moving away
from focusing on whether or not applicants can return and
conceal sexual orientations and/or gender identities.
Unfortunately, this seems to have resulted in decision makers
focusing on “proving” sexuality rather than whether or not the
applicant could reasonably live discreetly if returned.62 There
may also be a tendency to focus on whether or not the applicant
is acting “naturally” discreet.
First, the tribunal must determine whether the applicant
is either “gay” or would be treated as gay in the country of
origin based on the evidence the applicant has provided, such
as documentation relating to the applicant’s involvement in
sexual minority groups, statements from partners, photos,
or verbal or written testimony.51 Second, the tribunal must
find that in the country of origin there is a reasonable fear of
persecution for those that live their lives as openly transgendered or homosexual.52 Third, the tribunal must consider how
the applicant would act if returned to that country.53 In other
words, if the applicant would conceal their identity upon return
to avoid societal stigmatization, or for other personal reasons
not relating to persecution, the applicant may not be eligible
for protection. However, applicants who would return and not
conceal their sexual orientation and/or gender identity and that
would itself put them at risk of persecution, then they may be
eligible for protection.54 Lastly, the tribunal must consider if
the applicant, living openly, would thereby be exposed to a risk
Conclusion and Recommendations
Sexual minority asylum seekers face obstacles unique to
their asylum demographic. Individuals fleeing violence on
the basis of their sexual orientation may not be aware of the
possibility of applying for protection on the basis of sexual
orientation and/or gender identity and may also suffer from
guilt, shame, or past trauma. Others may be fleeing a general
29
situation of violence and could apply for asylum based on the
internal violence in the country as well as based on their sexual
orientation. Both difficulties of a lack of knowledge as well as
past mental trauma and stigmatization may affect an applicant’s
ability or willingness to disclose sexual orientation and gender
identification to legal practitioners and/or immigration officials.
This challenge may be affected by the level of sensitivity and the
knowledge the interviewer exhibits.
reform is required. First, adjudicators and officials must be
better trained and informed about the specific issues relating to
sexual minority applicants as well as the requirements under the
law of taking these different cultural indicators into consideration. More comprehensive country-of-origin information that
highlights the specific risks faced by sexual minorities must be
incorporated into asylum application criteria. More specific to
sexual minorities, decision makers must recognize the diverse
manifestations of sexual orientation and gender identity and
move beyond stereotyping that is often linked to the social
contexts of Western, industrialized states.
In order to combat the inconsistencies and hardships faced
by sexual minority applicants despite clear language from
the courts as well as in international conventions and treaties,
Endnotes
1 Universal Declaration of Human Rights G.A. Res. 217A (III),
U.N. Doc A/810 at 71 (1948) [hereinafter UDHR].
2 International Gay, Lesbian, Bisexual, Trans and Intersex
Association, http://ilga.org (last visited Apr. 16, 2013).
3 D. Ottosson State Sponsored Homophobia: A world survey
19
HJ (Iran) and HT (Cameroon) v. Sec. of State of the Home
Dept., (2010) UKSC 31, [78] (appeal taken from Eng. and Wales)
[hereinafter HJ and HT].
20 Laurie Berg and Jenni Millbank, Constructing the Personal
Narratives of LGB Claimants, Journal of Refugee Studies, 2009
199-201, 216.
21 A UK lesbian, gay and bisexual charity: www.stonewall.org.uk.
22 Stonewall, No Going Back: Lesbian and gay people and the
asylum system, (2010) available at http://www.stonewall.org.uk/
what_we_do/research_and_policy/2874.asp [hereinafter No Going
Back].
23 Barry O’Leary. ”We Cannot Claim any Particular Knowledge of
Homosexuals, Still less of Iranian Homosexuals…”: The Particular
Problems Facing Those Who Seek Asylum on the Basis of their
Sexual Identity 89 (2008) 16 Feminist Legal Studies [hereinafter
O’Leary 2008].
24 Id.
25 Convention Relating to the Status of Refugees, Apr. 22, 1954,
189 U.N.T.S. 150, Art. 1A(2).
26 UDHR Article 14.1: “Everyone has the right to seek and to
enjoy in other countries asylum from persecution.”
27 See e.g. UNHCR, supra note 9, at ¶ 8; Home Office the UK
Border Agency, Asylum Instruction: Sexual Orientation and
Gender Identity in the Asylum Claim, available at http://www.
ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/
asylumpolicy instructions/apis/sexual-orientation-gender-ident?
view=Binary [hereinafter UKBA Sexual Orientation and Gender
Identity in the Asylum Claim].
28UKBA, supra note 27.
29 Irish Refugee Act of 1996, Art., 1 available at http://www.unhcr.
org/refworld/docid/ 3ae6b60e0.html.
30 Refugee Act 1996 Section 1: ‘“membership of a particular social
group” includes membership of a trade union and also includes
membership of a group of persons whose defining characteristic is
their belonging to the female or the male sex or having a particular
sexual orientation’.
31 European Council Directive 2004/83/EC of 29 April 2004,
Art. 10.1(d), available at http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=CELEX:32004L0083:EN:HTML [hereinafter
European Council Directive].
32 Yogyakarta Principles, supra note 10.
33UKBA, supra note 27.
34 Id.
35 European Council Directive, supra note 31.
of laws prohibiting same sex activity between consenting
adults,
International Lesbian, Gay, Bisexual, Trans and Intersex
Association, http://ebookbrowse.com/ilga-state-sponsoredhomophobia-2010-pdf-d44415034 (2010).
4 Id.
5 Id.
6 Id.
7 Id.
8 See Diane Taylor, The UK Border Agency must end this culture
of disbelief, The Guardian (Nov. 22, 2012), available at http://www.
guardian.co.uk/commentisfree/2012/nov/22/uk-border-agencyculture-disbelief; Sue Conlan et. al., Irish Refugee Council, Difficult
to Believe: The assessment of asylum claims in Ireland, available
at http://www.irishrefugeecouncil.ie/wp-content/uploads/2011/08/
Difficult-to-Believe-The-assessment-of-asylum-claims-in-Ireland.pdf.
9 UN High Commissioner for Refugees, UNHCR Guidance
Note on Refugee Claims Relating to Sexual Orientation and
Gender Identity, 21 November 2008, ¶ 6, available at: http://www.
refworld.org/docid/48abd5660.html [accessed 16 April 2013].
10 International Commission of Jurists, Yogyakarta Principles—
Principles on the application of international human rights law
in relation to sexual orientation and gender identity, fn 1, March
2007, available at http://www.refworld.org/docid/48244e602.html
[hereinafter Yogyakarta Principles].
11 Id.
12 UNHCR Guidance Note, supra note 9.
13 Id.
14 See National Lesbian and Gay Journalists Association in the
United States, http://nlgja.org/ about/index.html (date accessed: 23
April 2011).
15 European Commission, Intersex People: Discrimination
on the grounds of sex, gender identity and gender expression,
(2011), available at: http://www.refworld.org/cgi-bin/texis/
vtx/rwmain?docid=4fdedde32.
16 UNHCR Guidance Note, supra note 9.
17 Nathaniel Miles Stonewall, No Going Back: Lesbian and Gay
People and the Asylum System, (2010), available at http://www.
stonewall.org.uk/what_we_do/research_and_ policy/2874.asp (last
visited Apr. 16, 2013).
18 Id.
30
36
46
Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia:
Seeking Safety in Europe, COC Nederland & VU University
Amsterdam 71 (2011), available at http://www.rechten.vu.nl/nl/
Images/Fleeing%20Homophobia%20report%20EN_ tcm22-232205.
pdf [hereinafter Fleeing Homophobia].
37 See e.g. UK Lesbian and Gay Immigration Group, Failing
the Grade: Home Office initial decision on lesbian and gay claims
for asylum (2010), available at http://www.asylumlaw.org/docs/
sexualminorities/Failing%20the%20Grade%20UKLGIG%20
April%202010.pdf.
38 Id.
39 SW (lesbians—HJ and HT applied) Jamaica v. Secretary of
State for the Home Department, CG [2011] UKUT 00251(IAC),
United Kingdom: Upper Tribunal (Immigration and Asylum
Chamber), 24 June 2011, available at: http://www.unhcr.org/
refworld/ docid/4e0c3fae2.html [accessed 9 July 2011] [hereinafter
SW Jamaica].
40 No Going Back, supra note 22.
41 Jansen & Spijkerboer, supra note 36.
42 No Going Back, supra note 22 at 16.
43 Jansen & Spijkerboer, supra note 36 at 9.
44 Id.
45 Id.
UK Border Agency, Considering Asylum Claims and Assessing
Credibility 14 (Mar. 25, 2011), available at http://www.ukba.
homeoffice.gov.uk/sitecontent/documents/policyandlaw/
asylumprocessguidance/consideringanddecidingtheclaim/guidance/
considering-protection-.pdf?view=Binary.
47 Id.
48 Samantha Arnold, The Culture of Credibility in the United
Kingdom and Ireland and the Sexual Minority Refugee, 30, Irish
Law Times, 55 (2012).
49 HJ and HT, supra note 19.
50 Id.
51 Id. at ¶ 35.
52 Id.
53 Id.
54 Id. at ¶ 22.
55 Id.
56 Id. at ¶ 82.
57 Jansen & Spijkerboer, supra note 36.
58 HJ and HT, supra note 19, at ¶ 22.
59 SW Jamaica, supra note 39.
60 Id. at ¶ 22.
61 Jansen & Spijkerboer, supra note 35, at 35.
62 See Patricia Brazil, Applications for Asylum by Lesbian,
Gay, Bisexual, Transgender and Intersex (LGBTI) Persons, The
Researcher (Mar. 30, 2013), available at http://www.legalaidboard.
ie/lab/publishing.nsf/content/The_Researcher_March_2011_
Article_2.
31
Perpetual Injustice: The 20 Year Battle for Reparations in Peru
by Aida Faverio* and Anna Naimark**
M
Introduction
ore than twenty years since the Peruvian government
responded to the threat of terrorism by arresting,
detaining, and torturing its own citizens, falsely
accused as terrorists, many of those who were acquitted or
pardoned have yet to receive moral or economic reparations.1
Despite the acknowledgement of the violations by the state, the
conviction of then-President Alberto Fujimori for human rights
violations, and the determination that victims are due reparations, the failure to provide these reparations, as required by
international law, makes the violations ongoing, creating ripple
effects and perpetuating the suffering of these individuals.
Background
Photo courtesy of the authors
Between 1980 and 2000, two domestic terrorist groups
plagued Peru: Sendero Luminoso (Shining Path) and Movimiento
Revolucionario Túpac Amaru (the Túpac Amaru Revolutionary
Movement, MRTA). The Shining Path was especially powerful
and its leader, Abimael Guzmán, was a communist professor of
philosophy who was inspired by Mao Zedong and the Cultural
Revolution in China. Guzman based the Shining Path’s fighting
style on the strategies Mao employed in China’s “People’s War.”
The core of the strategy was to mobilize agrarian societies to
revolt and then encircle large cities, eventually toppling them.
Using this style, the Senderos (members of the Shining Path)
would expel government forces and create “liberated zones.”
Because Guzmán’s strategy imitated Mao’s, the guerilla war
was fought primarily in the Peruvian countryside and gradually
choked off the big cities, with the main target being Lima,
the capital.2
As the internal conflict strengthened, the state consolidated
its power, and mobilized military forces to begin fighting back.
In the 1990s, then-President Alberto Fujimori carried out an
auto-coup d’état by abolishing the Peruvian Congress with
Decree Law 25418. Decree Law 25418 transferred the legislative
powers to the Executive Branch of the government and also
abolished much of the Constitution.3 Decree Laws 25422,
25423, and 25244 removed all the members of the Tribunal
of Constitutional Guarantees, thirteen judges of the Supreme
Court of Justice, and all the members of the National Council
of Judges and the District Councils of Judges from office.4 On
April 23, 1992, the government removed an additional 120
judges and public prosecutors with Decree Law 25446.5 With
the elimination of these foundations and the balance of power,
Fujimori was able to enact several reforms and apply drastic
punishments to those presumed to be members of designated
terrorist groups—the Shining Path and the MRTA.
* Aida Faverio has a Bachelor of Arts in International Affairs from
the Florida State University and is a 2013 graduate of the American
University Washington College of Law. She served as a Staff Editor
for the Human Rights Brief and as a Student Attorney with the
International Human Rights Law Clinic, where ARIL is one of her
and Anna Naimark’s clients.
The Truth and Reconciliation Commission (TRC), established on July 13, 2001, to investigate human rights violations
attributable to the state, the Shining Path, and the MRTA
between 1980 and 2000, found that as a part of Fujimori’s antiterrorism campaign, unsuspecting and innocent civilians were
arrested and subjected to a variety of torturous acts to obtain
information regarding the terrorist groups without access to due
process through a legitimate court system.
** Anna Naimark is a 2013 graduate of the American University
Washington College of Law and an M.A. candidate at the American
University School of International Service. She served as the Social
Media Editor for the Human Rights Brief and worked as a student
attorney with the International Human Rights Law Clinic, where
ARIL is one of her and Aida Faverio’s clients. She is currently a 2013
Presidential Management Fellow Finalist.
The campaign to fight terrorism began with arbitrary
detentions of mainly campesinos, or people from rural areas,
on the outskirts of the city. Many civilians were accused of
being terrorists or materially supporting terrorists. Raids on
small villages often ended in deaths and/or violent attacks. The
Colina Group, an extrajudicial “anti-communist death squad”
The authors would like to thank their family, friends, and the
International Human Rights Law Clinic team for their unconditional
guidance and support, and the Human Rights Brief staff for the
opportunity to work together. Most of all, they would like to thank the
partners and members of ARIL, whose tireless work for justice is a
constant source of inspiration.
32
carried out the most infamous of these raids—the La Cantuta
massacre and the Barrios Altos massacre—under Fujimori’s
orders. The La Cantuta massacre involved the kidnapping,
disappearance, and assassination of nine students and a professor
from La Cantuta University on July 18, 1992.6 The Barrios
Altos massacre involved the execution of fourteen adults and
an eight-year-old boy in Lima’s Barrios Altos neighborhood on
November 3, 1991. The TRC found that between 1980 and 2000,
more than 69,280 persons were killed or forcibly disappeared.7
This number reflects not only those killed by the government,
but also those killed by the Shining Path and the MRTA. Those
killed in the conflict comprise a greater number of human
losses suffered by Peru than all of
the wars that have occurred in its 182
years of independence. It is also more
than double the combined estimated
totals of those killed in the dirty war
in Argentina (30,000) and during
the dictatorship of General Augusto
Pinochet in Chile (3,000).8
Once imprisoned, the alleged terrorists were subjected to
torture, some over the course of years. Many were held incommunicado, cut off from family, friends, and any semblance of
human contact. The treatment that they received was undisputedly
cruel, inhuman, and degrading.
Inadequate Reparations and the Formation of ARIL
After nearly a decade of international pressure, Peru created
an Ad Hoc Commission on August 17, 1996, pursuant to Decree
Law 26655, to grant judicial pardons to those who had been
unjustly convicted or processed for the crimes of terrorism
or treason.16 President Fujimori, the Ombudsman, and the
Minister of Justice all supported the
Commission.
In its early jurisprudence,
the Inter-American Court of
Human Rights established
that the states’ duty to prevent
future violations of human
rights is essential for fulfilling
the requirements to respect
and ensure the exercise
of fundamental rights as
established in the American
Convention on Human Rights.
Even when judicial processes were
utilized, they were grossly defective.
A commission of international lawyers
charged with evaluating the Peruvian
judiciary during the Fujimori regime
called the judicial system’s treatment of
those charged with treason or terrorism
“seriously flawed and at odds in many
key respects with Peru’s international
legal obligations.”9 An investigation
conducted by the Instituto de Defensa
Legal (Institute of Legal Defense, IDL),
a prominent human rights organization
in Peru, found that the judiciary issued 51,684 warrants for
12,858 people.10 Moreover, because Peru has many common
names, warrants require additional identifiers such as parents’
names, a physical description, and the age of the person,
otherwise they are unlawful.11 In the warrants put forth under
Fujimori, however, 89.1 percent did not include parents’ names,
86.3 percent did not specify physical characteristics, and
79.2 percent did not include the age of the person to be
arrested.12 Despite a lack of credible statistics concerning how
many innocent people the government arrested, the number of
warrants issued and the lack of specific identifiers on these
warrants indicates that there may have been thousands.
In order to adjudicate the pardons,
the Commission would have to receive
a request for a pardon and then would
gather information and evidence
regarding the cases, and then evaluate
the cases. If the cases qualified, the
Commission would then send the
requests to the President to grant the
pardon. According to the IDL, Fujimori
pardoned 515 persons falsely convicted
of terrorism and treason.17
Despite government efforts to
address the imprisonment of innocent
civilians, many of the affected individuals did not ultimately receive or benefit
from the pardons. Others who were
unjustly incarcerated or accused were
then either acquitted or never officially
convicted of either terrorism or treason. Both those whom
Fujimori pardoned and those whom the courts acquitted continue
to have the charges or convictions on their permanent criminal
records. Because these are incomplete pardons and acquittals, the individuals’ tainted records make them second-class
citizens. The records label them “terrorists,” which generates
severe stigmatization and prevents them from obtaining employment or accessing educational opportunities.
After years of being subjected to arbitrary detentions, torture,
and violations of due process, and advocating for their right to
reparations, some 300 pardoned and acquitted Peruvians came
together to form the Asociación Reflexión de Inocentes Liberados
(Reflection Association of Liberated Innocents, ARIL).
Many of those who were arrested were not given a trial.
Those who were given a hearing had to go before a “faceless
tribunal” where the judges would not show their faces, would
distort their voices, and would not sign the judgments, allegedly
out of fear of revenge by the terrorists. This made it impossible
to know whether the judges had proper legal training, much less
if they were providing a fair trial. Moreover, the accused were
given limited legal representation and the evidence needed to
convict and sentence the accused was minimal and was often
falsified or uncorroborated.13 Despite the revocation of the
“faceless judge” provision in October 1997,14 Human Rights
Watch reported that thousands were incarcerated as a result of
this measure and that, in some jurisdictions, up to forty percent
of the convicted were later found innocent.15
Unlike other groups of freed individuals, this group comprises both those who have been pardoned as well as those who
have been acquitted. To them, the fight is one united effort.
The Struggle for Justice
In its early jurisprudence, the Inter-American Court of
Human Rights (IACtHR, Court) established that the states’
duty to prevent future violations of human rights is essential for
fulfilling the requirements to respect and ensure the exercise of
fundamental rights as established in the American Convention
on Human Rights.18 The reparation judgments are the main tool
33
compensation. In order to gain access to reparations, the
indultados, or pardoned, must file for them in domestic court.
The ARIL members complied with this process but were
denied access to reparations when judges dismissed their
claims because they could not afford to pay the necessary fees.
They were incapable of doing so because they live in poverty
as result of the violations they suffered. In essence, one of the
reasons they need the reparations, for economic stability, is the
same reason that they are denied it. The courts do theoretically
provide fee waivers, but they
have denied ARIL’s requests for
them. The ARIL members’ lack of
resources has thus been an impassible hurdle. Ultimately, the state is
not living up to obligations under
its “duty to repair” because ARIL
members do not have an effective
route to obtain these reparations,
which is a fundamental tenet of the
state’s duty.29
that the Court has to compel Member States to comply with this
duty.19 In consistent jurisprudence, the IACtHR has established
that it is a principle of international law that “any violation of
an international obligation resulting in damage gives rise to
the new obligation to remedy [that] damage.”20 The state must
give the survivors of atrocities remedies that are “in accordance
with the rules of due process of law” and are both adequate and
effective.21 In order to be considered adequate, the domestic
remedies must address the infringement of the legal right. To
be effective, the remedy must be
capable of producing the intended
result.22 The responsible state cannot
invoke provisions of domestic law
to modify or fail to comply with the
obligation to provide reparations,
because all aspects are regulated by
international law.” 23
Ultimately, the state is not living
up to obligations under its “duty
to repair” because ARIL members
do not have an effective route to
obtain … reparations, which is a
fundamental tenet of the state’s duty.
The Constitutional Court of
Peru, using guidance from the jurisprudence of the Inter-American
System of Human Rights (IASHR),
affirmed the right to a remedy from
a competent court in the face of any act or omission that harms
fundamental rights.24 This right was elaborated in VelásquezRodríguez v. Honduras, when the Court became the first human
rights tribunal to require a state to “prevent, investigate and
punish any violation of the rights . . . [and] attempt to restore
the right violated and provide compensation as warranted for
damages resulting from the violation.”25 These remedies, known
collectively as reparations, refer to the economic and moral
reparations, which the violating state is responsible for providing
to the victims under the American Convention. Economic
reparations are money rewards for actual damages or pecuniary
rewards.26 Moral reparations are designed as restitution for
damages that cannot be quantified and are public acts or works
that aim to restore dignity to the victims and their families
and publicly condemn the human rights violations in question
to prevent their recurrence.27
Far from being “repaired” to the
state of their lives before they were
swept up in the conflict, even the one reparation some members
of ARIL were given has caused them to struggle. The government gave pardoned members of ARIL a desolate plot of land in
Huachipa, about an hour outside of the capital city and situated
in the middle of three factories, as a reparation, but the grant
was realistically a tool used by the state to get the group to cease
its requests for further redress. The members of ARIL call this a
“self-reparation” because, after they were granted the land, they
had to fight to use it. First, ARIL members had to fight military
officials in charge of the munitions factory that borders the plot
for rights to the land. Then, after they won a smaller piece of
the land from what the original reparation granted, they were
told they could not build on it until there were environmental
tests that showed the land was safe to live on. ARIL members
then conducted the necessary environmental tests at their own
expense. After they were finally approved to build on the land,
they had to finance the infrastructure on the arid plot. The
land at Huachipa has a nonfunctional sewage system, no water
supply, and the homes are not structurally secure. The greatest
irony of their “self-reparation,” members note, is that they must
live as neighbors with the military, the same institution that
Fujimori used to torture them and deny them of their basic
human rights for years.30
In order to fulfill these obligations, the Peruvian government
enacted Decree Law 28952, which created the Integral Plan of
Reparations (Plan Integral de Reparaciones, PIR), to give those
who have been pardoned adequate reparations.28 However, the
plan excluded those who were acquitted before being convicted,
despite having suffered similar violations to those who were
pardoned. Under the PIR, acquitted individuals do not qualify
for monetary compensation because it is assumed
that they did not suffer the same prison conditions or loss of livelihood as those who served
prison terms. The state failed to give even those
who qualified for the reparations as pardoned
individuals their reparations, claiming that it
lacked funding.
For years, the members of ARIL have been
struggling to have their voices heard within
the judicial system. Despite the democratization
of the government and the international legal
right to reparation they have in theory, in practice, members of ARIL have not received any
34
The years of detention the members of ARIL suffered involving
cruel, inhumane, and degrading treatment by the Peruvian
government have ended, but the violation of their human rights
has not. They remain stigmatized by the state’s false accusations
of terrorism and treason. Moreover, because of their history of
oppression by the state, they cannot afford to gain access to
the reparations they are due under the law. Unable to seek help
domestically, ARIL looked to the Inter-American Commission
on Human Rights (IACHR) almost nine years ago and has yet to
reach even the admissibility stage. The eight petitions they filed
languish, and the justice they deserve is on hold as the IACHR
tries to process 8,500 other pending cases.31
Conclusion
The members of ARIL have suffered a clear violation of
international law by Peru. The IASHR has affirmed that where a
country violates the rights of its citizens, those citizens are due
adequate and effective reparations. The IASHR, as well as the
government of Peru, has affirmed the violations and, therefore,
Peru incurred this obligation to properly redress it. In order to
do this, the state should give the members of ARIL reparations
that will put them back to the position they were in before they
were wrongfully accused of treason and terrorism, arbitrarily
detained, and subjected to cruel and inhuman treatment. The
IACtHR clarified the duty to provide restitution as a requirement
of customary international law in numerous cases, including the
Miguel Castro-Castro Prison v. Peru case.32 This requires both
payments of economic reparations for years of life taken away
from them, pain and suffering, and lost economic opportunities,
as well as moral reparations that counter stigmatization with
moral reparations to publically acknowledge the members of
ARIL’s innocence. There is no way to completely repair the life
of someone who has suffered so greatly at the hands of a state
actor, but Peru has not even come close to fulfilling their obligations to attempt an adequate reparation.
The members of ARIL not only suffer from memories of the
past but also continue to suffer from the ongoing stigmatization
of being branded as terrorists. Despite the fact that they have
been pardoned or acquitted and were never involved in acts of
terrorism, being associated with the Senderos and the MRTA
haunts their daily lives. Marred with criminal records, these
individuals have trouble accessing employment. Some of the
members were isolated from their families after being labeled
as terrorists and have had trouble reestablishing a sense of community. The members’ names appear published as “terrorists”
in newspapers, leading to threats and personal insecurity. They
face this social and economic isolation in addition to the many
ailments that result from being subjected to torture. Many of
the individuals live with post-traumatic stress disorders and
physical ailments from the many years of torture they endured.
They suffered a loss of livelihood, family life, security, economic
opportunities, homes, crops, businesses, community involvement, and virtually everything a person values and needs for
basic adequate subsistence. They suffer this because they were
mistaken as terrorists, something the Peruvian government
recognized its responsibility for, yet has failed to redress.
Endnotes
1 Moral reparations are designed as restitution for damages that
cannot be quantified and are public acts or works that aim to restore
dignity to the victims and their families and publicly condemn the
human rights violations in question to prevent their recurrence.
2 See Louis Proyect, Shining Path, Columbia University, ¶
3, available at http://www.columbia.edu/~lnp3/ mydocs/indian/
sendero.htm.
3 Documento—Peru: Los Derechos Humanos Durante El
Gobierno Del Presidente Alberto Fujimori (9206S), Amnesty Int’l.,
§§ 3.1-3.2, available at http://www.amnesty.org/es/library/asset/
AMR46/018/1992/es/bb601bd3-edbe-11dd-a95b-fd9a617f028f/
amr460181992en.html, §§ 3.1-3.2.
4 Id.
5 Id.
6 Fujimori Found Guilty of Human Rights Crimes, The National
Security Archive (Apr. 7, 2009), available at http://www.gwu.
edu/~nsarchiv/NSAEBB/NSAEBB274/.
7 Informe de la Comisión de la Verdad y Reconciliación, § 1.1,
available at http://www.cverdad.org.pe/ifinal/pdf/ TOMO%20I/
Primera%20Parte%20El%20Proceso-Los%20hechos-Las%20
v%EDctimas/Seccion%20Primera-Panorama%20General/1.%20
PERIODIZACION.pdf; Truth and Reconciliation Commission
of Peru, Final Report, United States Institute of Peace ¶ 5,
(Jul. 2001), available at http://www.usip.org/publications/truthcommission-peru-01.
8 Truth and Reconciliation Commission of Peru, Final Report—
General Conclusions, Columbia University, available at https://
coursewebs.law.columbia.edu/coursewebs/cw_12F_L9165_001.nsf/
0f66a77852c3921f852571c100169cb9/D7511D493201AB0C852
57AA4001750D7/$FILE/Peru+TRC+Final+Report-Conclusions.
pdf?OpenElement.
9 Antonio Maldonado and Diego Rodriguez, Report Exposes
Problems with Peru’s Judicial System, Human Rts. Brief, Vol. 1,
Iss. 2 (1994), available at http://www.wcl.american.edu/hrbrief/
v1i2/peru12.htm.
10 Amado Enco Tirado, et al., Los Requisitoriados Por Terrorismo
¿Quinénes son? ¿Cuántos son?, Instituto de Defensa Legal, 13-15
(2006).
35
11
21
Interview with Carlos Rivera, Legal Coordinator, Instituto
de Defensa Legal, in Lima, Peru, 24 Oct. 2012.
12Tirado, supra note 10.
13 Interview with Carlos Rivera, supra note 11.
14 Peru: End of “Faceless Judge” System—Only One Step
Towards Fair Trials in Terrorism Cases, Amnesty Int’l, (Oct.
16, 1997), available at http://www.amnesty.org/en/library/asset/
AMR46/038/1997/en/b11f85ed-e988-11dd-8224-a709898295f2/
amr460381997en.html.
15 Peru: The Two Faces of Justice, Human Rts. Watch,
(Jul. 1, 1995) ¶ 4, available at http://www.unhcr.org/ refworld/
docid/3ae6a7ed4.html.
16 Law No. 26655, Aug. 17, 1996, (Peru) available at http://www.
congreso.gob.pe/ntley/Imagenes/Leyes/26655.pdf.
17 Fujimori indultó a más terroristas que Paniagua y Toledo juntos,
diario 16 (Oct. 5, 2012) http://diario16.pe/ noticia/19562-fujimoriindultao-a-maas-terroristas-que-paniagua-y-toledo-juntos.
18 Velásquez Rodríguez v. Honduras, Merits, Judgment, Inter-Am.
Ct.H.R. (ser. C) No. 4 (Jul. 29, 1988), available at http://www.
refworld.org/docid/40279a9e4.html; Godínez Cruz v. Honduras,
Compensatory Damages, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 8, (Jul. 211989). See also Lisa J. Laplante, Bringing Effective
Remedies Home: The Inter-American Human Rights System,
Reparations, and the Duty of Prevention, Netherlands Quarterly
of Human Rights, Vol. 22, No. 3, 347-388, (September 28, 2008)
available at SSRN: http://ssrn.com/abstract=1274787 at 350.
19 See Velázquez Rodriguez case, supra note 18; Laplante,
supra note 18.
20 Case of the Miguel Castro-Castro Prison v. Peru, Inter-Am.
Ct. H.R. (ser. C) No. 160, ¶ 414 (Nov. 25, 2006); Bridget
Mayeux and Justin Mirabal, Collective and Moral Reparations
in the Inter-American Court of Human Rights, The University
of Texas School of Law Human Rights Clinic, 6, available at
http://www.utexas.edu/law/clinics/humanrights/work/HRC_F09_
CollectiveReparations.pdf.
Id.
Id.
23 Id.
24 Luis Felipe Almenara Bryson, Sentencia del Tribunal
Constitucional, No. 1941-2002-AA/TC, ¶ 3, (Jan. 27, 2003)
available at http://www.tc.gob.pe/jurisprudencia/2003/019412002-AA.html.
25Mayeux, supra note 20 (citing Velásquez-Rodríguez v.
Honduras, supra note 18).
26 Id. at 3.
27 Id. (citing Villagrán-Morales et al. v. Guatemala. Reparations
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214, ¶ 84).
28 Julie Guillerot, Reparaciones en la Transición Peruana:
¿Dónde Estamos y Hacía Dónde Vamos?, 273 available at http://
derechoshumanos-portal.segob.gob.mx/archivos/lecturas/Guillerot_
reparaciones_transicion_peruana.pdf.
29Laplante, supra note 18 at 351.
30 ANIL: Asociación Nacional de Inocentes Liberados, http://www.
scribd.com/doc/15767303/Asociacion-Nacional-de-InocentesLiberadosANIL, 11-12 (the article refers to ARIL under its original
name “ANIL”).
31 Reform process—2012, IACHR methodology for reviewing
regulatory provisions, policies, and practices in order to strengthen
the inter-American human rights system, Inter-Am. Comm’n
H.R. ¶ 24, available at http://www.oas.org/en/iachr/mandate/docs/
Methodeng.pdf.
32 Case of the Miguel Castro-Castro Prison v. Peru,
supra note 20 at ¶ 6.
22
36
Stealing the Islands of Chagos:
Another Forgotten Story of Colonial Injustice
by Claire Grandison,* Seema Niki Kadaba,** and Andy Woo***
F
or more than a decade, the UNROW Human Rights
Impact Litigation Clinic at the American University
Washington College of Law (UNROW) has been part of a
global effort to seek justice for the Chagossians, the indigenous
inhabitants of the Chagos Islands in the Indian Ocean. The
Chagossians’ plight is not wellknown, yet it repeats a familiar
narrative from the history of colonialism. The most well-known and
stark example is perhaps the Trail
of Tears, when the U.S. government
ordered the forced removal of the
Native American nations residing
in the southeastern parts of North
America. The world stood by as the
U.S. governement forcefully and
violently expelled tens of thousands of Native Americans from
their homes on a death march—to be resettled in lands west
of the Mississippi and never to return. Less well-known is that
merely a few decades ago, in 1967, history would repeat itself
when the U.K. forcibly expelled thousands of indigenous people
of the Chagos Archipelago from their homeland to make way for
a U.S. military base.
effect on broader policy issues beyond the immediate scope
of the litigation. The Chagossian case is an ideal impact case
for UNROW because it has far-reaching transnational effects
and implications for any population forcefully removed from
its territory, and it seeks to challenge continuing tolerance for
colonial takings. The case has also provided UNROW the opportunity to take
action through litigation, advocacy,
and education. Beginning with litigation, UNROW filed a lawsuit in 2002
in the United States District Court
for the District of Columbia based on
claims of cruel, inhuman, and degrading treatment; torture; deprivation of
property; and discrimination. Citing
the political question doctrine, which
prohibits courts from reviewing certain
executive and legislative decisions, the
court quickly rejected the case and held that it could not review
the actions of the Department of Defense, ruling that these
questions should be left to the other branches of the government. UNROW lost on appeal, and the U.S. Supreme Court
denied certiorari.
The Chagossian case is an ideal
impact case for UNROW because
it has far-reaching transnational
effects and implications for any
population forcefully removed
from its territory[.]
Having exhausted all the litigation possibiliites in the United
States, UNROW initiated an advocacy campaign to seek a
political response to the Chagossians’ struggle. Fortunately,
UNROW’s advocacy campaign garnered the attention of the
Congressional Black Caucus (CBC), an organization representing the black members of the U.S. Congress, because of the
colonial nature of the Chagossians’ removal and because the
Chagossians were primarily of African descent. For two years,
UNROW met with legislators from the CBC with the aim of
creating a congressional resolution that would establish a claims
tribunal to review claims of Chagossians harmed in the course
of their forced removal. UNROW made enormous progress with
the help of former CBC chairman Representative Donald Payne,
who became a champion for the Chagossians’ cause in Congress.
Unfortunately, Representative Payne passed away shortly before
he was set to present the resolution before Congress, and other
representatives from the CBC, who had previously expressed
interest, quickly dropped out seemingly due to the lack of political will and public support for assisting a population the United
States had helped displace.
Upon learning of the Chagossians’ efforts for justice through
the U.K. judicial system, as will be discussed below, UNROW
sought to hold the U.S. government accountable for its involvement in the forced removal of the Chagossians by spearheading
numerous initiatives in the United States based on the three
pillars of the clinic’s work: litigation, advocacy, and education.
UNROW seeks to address human rights violations through litigation, help clients challenge limitations on redress for human
rights violations in courts, and increase compliance with human
rights norms and practices. The Clinic’s essential mission is to
address human rights violations through the model of impact
litigation, which seeks redress for clients while having a positive
*Claire Grandison is a J.D. Candidate and a member of the UNROW
Human Rights Impact Litigation Clinic at the American University
Washington College of Law.
**Seema Niki Kadaba is a J.D./M.A. Candidate, Class of 2014, and
a member of the UNROW Human Rights Impact Litigation Clinic
as well as the Journal of Gender, Social Policy, & the Law at the
American University Washington College of Law.
Nevertheless, UNROW’s advocacy and education efforts
on the Chagossians’ behalf did not end there. UNROW organized many community events to raise awareness about the
Chagossians, including teach-ins and film screenings, and clinic
members traveled to Mauritius numerous times to meet with
***Andy Woo is an alumnus of the American University Washington
College of Law, where he graduated with honors in 2013, and was
a member of the UNROW Human Rights Impact Litigation Clinic as
well as the Moot Court Honor Society.
37
the exiled Chagossian community. UNROW also continued to
support the litigation and political advocacy efforts of our
partners abroad. In support of a domestic U.K. case before the
House of Lords, R (Bancoult) v. Secretary of State for Foreign
and Commonwealth Affairs (No 2), for example, UNROW
members traveled to London at the invitation of the U.K.
Parliament to make a presentation to the Law Lords and address
the House of Commons.
finding the case inadmissible. This article will argue that the
Court based its decision on rationales that threaten to not only
undermine the global campaign of the Chagossians and their
allies, but also damage the effort to strengthen international law
and hold governments accountable for human rights abuses. It
will further describe why the claim of the Chagossians to their
homeland has vast potential for impact, the crux of UNROW’s
mission, due to the relatively few decisions in the ECtHR on
indigenous peoples’ rights and the Courts’ limited jurisprudence
on collective rights to redress.
Believing that the plight of the Chagossian represents the
quintessential impact litigation case, UNROW continues to
take part in a global network advocating for the Chagossians.
Most recently, UNROW filed an online “We the People”
History of the Chagos Islands
petition with the White House, asking the U.S. government to
The Chagos Archipelago comprises 55 islands and is
redress wrongs against the Chagossians.1 More than 30,000
currently claimed by the U.K. as a British Indian Ocean Territory
people signed the petition within the thirty-day time limit. Yet,
(BIOT).4 From the 1500s to the 1960s, the Chagossian populadespite this overwhelming support for the Chagossians, the U.S.
tion consisted of families of African, Malagasy, and Indian
government failed to take
origin, mostly brought over
any responsibility for its role
as slaves to work on plantain ousting the entire poputions.5 These families and
lation from its homeland.2
their descendents made
The U.S. government waited
Chagos their home and by
until December 21, 2012,
the 1960s even the U.K.
more than eight months,
government recognized the
before responding to the
Chagossians as indigenous
petition, while, in comto the land.6 Nevertheless,
parison, it responded within
in the 1960s the U.K. made
a mere two months to a
an agreement with the U.S.
petition seeking funding for
government to forcibly
a Death Star.3 The response
deport the Chagossians in
to the Chagossians’ petiorder to grant the United
tion almost immediately
States access to Diego
followed the European
Garcia, the largest island,
Court of Human Rights’s
for a fifty-year term with
(ECtHR or “Court”) deci- Construction of a cinema in a village in Diego Garcia. Photo courtesy
the possibility of a twentysion in Chagos Islanders v. UK Royal Air Force.
year extension, to use as a
the United Kingdom, issued
military base.7 The authoriDecember 20, 2012, that dismissed the Chagossians’ claims as
ties employed brutal tactics to force thousands of the Chagossians
inadmissible. ECtHR decisions are influential in informing the
from their homes, including an embargo aimed at starving the
international community on the development of human rights
population, the mass extermination of the Chagossians’ pet
law, so it is likely not a coincidence that the U.S. government’s
dogs, and even death threats to any opposition groups.8 Today
response to the petition followed the ECtHR’s decision so
most Chagossians live in abject poverty on the island nations
closely. Had the Court decided on the merits of the case in the
of Mauritius and the Seychelles because they were forcibly
Chagossians’ favor, the U.S. government may not have issued as
removed from their home with little to no compensation and no
dismissive a response due to a risk of political embarassment.
ability to return.9
Due to the the prominence of the ECtHR, the Court’s decision
Following their violent removal, the Chagossians have
in this case has a significant impact on the global effort to seek
made
several unsucessful attempts to regain control of their
justice on behalf of the Chagossians and could have widespread
10 For example, in 1975 a Chagossian named Michel
homeland.
impacts on the claims of indigenous peoples and others forcibly
Ventacassen brought a case in the High Court in London conremoved from their homelands.
cerning the expulsions.11 The Ventacassen case settled in 1982,
The ECtHR is the sole transeuropean judicial organ with
and over the next two years, 1,344 Chagossians in Mauritius,
jurisdiction to hear petitions regarding state violations of the
only a part of the exiled Chagossian population, received GBP
European Convention on Human Rights. The Court’s decisions
2,976 each in compensation, a derisory amount in light of the
are binding on all members of the Council of Europe, including
magnitude of their loss.12 In addition, several families received
the U.K. However, because of the sheer number of petitions
no compensation and many staged hunger strikes to show
for review and the delicate balance with the Member States’
their disapproval of the failure of the U.K. government to truly
sovereignty concerns, the Court will only hear cases that meet
provide redress for their loss.13 The approximately 500
certain pre-conditions for jurisdiction. In the Chagos Islanders
Chagossians in the Seychelles who did not participate in the
case, the Court found that the pre-conditions had not been
negotiations received nothing.14 To receive the funds, the
met, and refused to hear the merits of the Chagossians’ claims,
38
[The ECtHR’s] decision failed to protect the collective population’s rights and
set a precedent indicating that if certain members of a harmed population receive
compensation, then all other current and future members are barred from recovery.
Chagossians were required to sign renunciation forms written
in English, a language most of them did not understand.15
national court proceedings that could be construed as a denial
of access to court; therefore, the Court found the application
inadmissible. 28
In pursuit of full and adequate compensation and recognition of their struggle after the dissapointing 1975 judgement,
the Chagossians brought forced expulsion claims in a separate
litigation through the domestic U.K. courts, attempting to gain
a remedy and recognition. In a rare victory for the Chagossians,
in 2004 the U.K. court held that the orders, removing the
Chagossians from their land, were beyond the lawful powers
of the sovereign.16 In 2007, the Court of Appeals ruled that the
decision to pass the 2004 British Indian Ocean Territory Orders
was an abuse of power by the Crown.17 In 2008, however, the
majority of the House of Lords decided that the Queen had the
power to exile the entire population of the Chagos archipelago
because the British Indian Ocean Territory was not a settled
colony.18 In 2010, ECtHR began the investigation into the case
of the Chagossians right of return, yet this attempt proved to be
another disappointment.19
The impact of the ECtHR’s decision reaches far beyond the
Chagossians. The ECtHR could have set a precedent that would
protect the rights of indigenous peoples who have been expelled
from their land by colonial powers and provide them an avenue
for redress. Instead, this decision failed to protect the collective
population’s rights and set a precedent indicating that if certain
members of a harmed population receive compensation, then
all other current and future members are barred from recovery.
Beyond that, this decision indicated that colonial powers’ expulsion of indigenous or aboriginal populations would escape the
Court’s scrutiny as long as the colonial power makes a nominal
payment to the removed population with the condition that
acceptance of the payment functions as a waiver of the right to
return. This type of decision is particularly harmful to impact
litigators because it completely bars certain groups of victims
from ever receiving reparations.
The ECtHR Decision: Chagos Islanders v.
the United Kingdom—The Latest Denial
of the Chagossians’ Fight for Justice
The Court Found the Case Inadmissible because it
did not Grant Victim Status to the Chagossians
In Chagos Islanders v. the United Kingdom, the ECtHR
delared the case inadmissible and thus declined to consider
the merits of the Chagossians’ claims. The ECtHR will only
hear arguments on the merits of a petition if applicants meet
certain preconditions of admissability.20 First, the cases can
only be brought to the Court after domestic remedies, such as
attempts for justice through national judicial systems, have been
exhausted.21 Secondly, the applicant must be a victim who has
suffered significant harm, and this harm must concern one of
the rights protected under the European Convention on Human
Rights (Convention).22 If an act or omission at issue directly
affects the applicant then he or she is considered a victim under
the Convention.23 Third, the applicant must bring the case within
six months of the last domestic decision and the claims must be
related to a right guaranteed by the Convention.24
The ECtHR based its finding of inadmissibility largely on its
determination that the Chagossians did not qualify as victims.
Under Article 34 of the European Convention, all individuals
who consider themselves victims of a breach of the Convention
can complain to the Court.29 To qualify as a direct victim, the
act or omission at issue must directly affect the applicant.30 The
Court has held that “[w]here applicants accept a sum of compensation in settlement of civil claims and renounce further use of
local remedies, . . . they will generally no longer be able to claim
to be a victim in respect of those matters.”31 However, the Court
has previously applied this standard to individual applicants
rather than groups. The Court’s decision created a disapointing
precedent that extends this individual standard to group litigants
without taking into account the special circumstances of a group
claim.
The ECtHR found the Chagossian case inadmissible for
several reasons. First, the Court held that because 471 of the
applicants had participated in the Ventacassen case and already
accepted and received compensation in the Ventacassen case,
none of the applicants could claim victim status.25 Second, the
Court held that the applicants who were not among the 471
who received compensation should have been aware of the
proceedings and made the appropriate claims; therefore, they
failed to exhaust domestic remedies.26 Third, the Court found
that applicants who were not born at the time of the settlement
were not residents of the island and accordingly had no claims to
“victim status” arising out of the expulsions.27 Finally, the Court
did not find any indication of arbitrariness or unfairness in the
As an impact litigation clinic, UNROW often advocates for
courts to apply legal standards that either do not yet exist or are
not widely used. In the present case, UNROW argues that the
Court should have developed a new legal standard to evaluate
victim status for group litigants rather than apply the rule that
denies victim status when an individual has participated in a
past settlement agreement. By failing to develop a rule based
on the unique circumstance of group litigants, the Court denied
hundreds of Chagossians the opportunity to seek redress merely
because some members of the group had previously received
nominal compensation.
The Court’s failure to take into consideration the unique
circumstances of group litigants does not only affect the
39
Chagossians—it also severely limits all group litigants’ ability
to seek redress in the future. The Court denied the Chagossians
victim status because 471 of the 1,786 applicants received
compensation in the 1982 Ventacassen settlement.32 In reaching
this decision, the Court relied on previous judgements that
involved individual rather than group applicants. For example,
in Caraher v. the United Kingdom, where the Court found
that the applicant did not qualify as a victim because she had
accepted a settlement offer in the civil proceedings for the death
of her husband.33 However, the distinction between cases like
Caraher and that of the Chagossians is more significant than
the Court gave credit. In Caraher
the party in question did receive
some form of compensation yet
only 471 of the 1,786 applicant
Chagossians participated in the
earlier settlement agreement34—
the remaining 1,315 applicants
never received compensation and
some did not even participate.35
UNROW contends that instead
of applying a narrow ruling that previously applied to whether
invidiual victims were compensated, the Court should have
either identified a distinct rationale specific to large groups of
victims or, more appropriately, taken into account individuals
who never received any compensation.
the Court creates a legal standard for admissibility rulings that
will inevitably disfavor other groups seeking redresss.
The Court’s decision on this issue presents an important
advocacy opportunity because applying the Court’s narrow
understanding of who qualifies as an indirect victim would
restrict the rights of other such individuals or groups attempting
to gain access to the Court. Under this standard, the rights of
descendent family members of direct victims to access the Court
would be severely limited. Furthermore, if the Court is presented
with future cases in which an entire population has been forcefully removed from its territory, only members of the population
who actually resided on the territory at the time of removal would
be authorized to bring claims
before the Court. The Court could
better serve victims by utilizing a
broader reading of the definition
of victim in the practical guide
to provide access to justice to all
who qualify, as the current ruling
is harmful to the Chagossians and will certainly affect future
victims attempting to obtain justice through the Court.
The Court could better serve victims
by utilizing a broader reading of the
definition of victim[.]
The Court Should Have Protected the Chagossians’
Unique Rights as Indigenous Peoples
UNROW also uses impact litigation and advocacy to
strengthen compliance with international law. In that capacity,
UNROW argues that the Court in the present case would better
serve its role in defending vicims by providing the Chagossians
the special protection developed under international law to
protect indigenous peoples, as the Chagossians are the native
inhabitants of the Chagos Islands.40 International law, specifically the provisions of the Convention on the Rights of the Child
and the work of the UN Committee on the Elimination of Racial
Discrimination as expressed in General Recommendation XXIII
on Indigenous Peoples, has widely recognized the rights of
indigenous peoples.41 In 2007, the United Nations adopted the
Declaration on the Rights of Indigenous Peoples (Declaration).42
Notably, 143 states, including the U.K., voted in favor of the
Declaration.43 Although the Declaration is not legally binding,
it serves as a benchmark for customary international law, and as
“a guide for the actions of the international human rights treaty
bodies.”44 The Declaration includes the “right not to be forcibly
removed from land or territories” and “the right to redress
for lands, territories, and resources which have been taken.”45
UNROW asserts that these principles of international law would
be effective guides for the Court to develop its jurisprudence
toward indigenous peoples.
Second, UNROW contends that when the Court denied
the applicants victim status by giving undue deference to the
Chagossians’ supposed waiver of their right to pursue claims
against the U.K. government, the Court acted inconsistent with
the European Convention’s purpose of protecting and defending
fundamental rights and freedoms. The Court upheld the validity
of the renunciation forms some of the Chagossians signed in the
Ventacassen settlement even though many of the signers were,
in the words of the ECtHR, “illiterate, Creole-speaking and
vulnerable and did not appreciate what they were signing.”36 The
Court deferred to the U.K. High Court’s earlier rejection of the
Chaggosians’ arguments, despite the High Court’s recognition
that many of the Chagossians were illiterate, “lacked significant
education,” and that “[l]egal concepts were, not surprisingly,
poorly understood.”37 By refusing to evaluate the validity of the
Chagossians’ waiver of their rights, the Court opened the door
for future groups to take advantage of vulnerable populations.
UNROW advocates for a more thorough evaluation of whether
the Chagossians’ waiver was knowing and intelligent.
Finally, the Court caused significant harm to the new generation of applicants, who are descendents of those expelled from
the island, by failing to view them as victims in this case. As
stated in the Court’s practical guide on admissibility criteria,
“[T]he Court may accept an individual application from a
person considered an indirect victim, where there is a personal
and specific link between the direct victim and the applicant.”38
The Court has developed a complicated jurisprudence for which
it is difficult to prescribe with precision what a “specific link”
means, but it is clear that family relationships play a signficant
role39 and the Court could have construed a broad definition of
“indirect victim” to include the “specifc link” of the descendants.
This decision has serious implications for future generations of
displaced persons because denying these Chagossians access to
The Court had persuasive authority for interpretion of the
European Convention on Human Rights (ECHR) in the work
of other regional courts, which have issued decisions that offer
a differing representation of these developing international
norms. For example, the Inter-American Court of Human
Rights (IACtHR), another regional human rights court that can
hear individual petitions against a state, has incorporated the
Declaration in its jurisprudence to provide indigenous peoples
the special rights required under customary international law.46
The IACtHR has read Article 21 of the American Convention
40
on Human Rights to recognize the “close relationship between
indigenous people and their lands,” and has expanded on this
to protect the rights of indigenous people, despite the lack of a
clear statement of what those rights entail under the American
Convention.47 In Kichwa People of Sarayaku v. Ecuador, the
IACtHR found that “the Ecuadorian state violated the [Sarayaku
Indigenous] community’s right to be consulted, as well as their
community property rights and their cultural identity.”48 The
IACtHR’s ruling was based in part on the right to property laid
out in the American Convention on Human Rights, which states,
“No one shall be deprived of his property except upon payment
of just compensation, for reasons of public utility or social
interest, and . . . according to the forms established by law.”49
The European Convention provides an almost identical right to
property and thus the IACtHR standards would provide an effective template for interpretation of customary international law.50
Court found that the Chagossians “could no longer claim to be
victims”53 merely because the U.K. government offered them
incomplete and nominal compensation. While the Chagossians
accepted the compensation, the harm done to them has yet to be
sufficiently redressed.
In reaching this decision, the Court emphasized the supposed
adequate compensation given to some of the Chagossians, many
of which were not part of the ECtHR litigation, as well as their
supposed renunciation of their right to return to their homeland.
The situation echoed familiar narratives from the colonial era
in European history, when indigenous populations were offered
nominal and incomplete compensation, in the absence of choice,
for the forceful taking of their homelands. Once this payment
was accepted—even if absent choice or consensus from the
entire populace—the colonial power treated the indigenous
population as having renounced
their rights to return to their
homeland. By ruling that the
U.K.’s nominal payment to only
part of the forcibly removed population is sufficient to preempt
the Chagossians from bringing
their claim before the ECtHR,
the Court’s ruling essentially
endorsed this colonial mentality
and behavior.
By incorporating the specicial
protection that international law
affords indigenous peoples in its
jurisprudence, the ECtHR would
ensure that Chagossians and other
indigenous groups have access
to redress for the full extent
of the harm inflicted against
them. Similar to the IACtHR,
the ECtHR has the responsibilty
to recognize the importance of
indigenous communities’ right
to be consulted and communaly
owned property.51 Expanding the ECtHR’s current interpretation
of property rights would benefit the Chagossians as well as
other indigenous groups seeking recognition of their unique and
longstanding rights related to their territory.
By ruling that the U.K.’s nominal
payment . . . is sufficient to preempt
the Chagossians from bringing their
claim before the ECtHR, the Court’s
ruling essentially endorsed this
colonial mentality and behavior.
Under this ruling, a colonial
power, such as the U.K., could
legally remove an indigenous
population from its homeland as long as the colonial power
makes a symbolic payment, even if this payment does not
actually remedy the losses, damages, or injuries incurred.
Furthermore, this ruling allows the colonial power to bar the
victims’ claims by assuming informed consent where the
victims accepted payment and waiver, and does not require
the Court to take into account the factual circumstances such
as a lack of comprehension due to language barriers, and does
not require the Court to look at the amount of payment offered
compared to the amount of harm done. Under this ruling, a
colonial power can make a waiver of claims a condition for
accepting the payment, as the U.K. did with the Chagossians,
even if the payees do not fully understand what they are signing
away because the Court will presume informed consent where
payment, waiver, and counsel were present. A better standard
would be to presume a lack of informed consent in these situations given the historic willingness of colonial powers to overtake
lands regardless of interests of the indigenous people. This is a
troubling ruling, considering the prevalence of wrongs that were
committed against indigenous peoples throughout history in this
context. The Court’s callous disregard for the Chagossians who
never received any compensation makes this decision all the
more disconcerting.
The Court’s decision not to consider the Chagossians’
rights as indigenous people once again demonstrates the case’s
importance within an impact litigation setting. The ECtHR has
had much less opportunity develop standards than the InterAmerican System, for which indigenous rights is one of its
more developed subjects. Much of the international guidance
on indigenous rights has come within the last decade, and this
case presented the ECtHR with a chance to follow the example
of the IACtHR and incorporate these relatively new principles
of customary international law into its jurisprudence. The
Court, however, failed to take advantage of this opportunity and
instead demonstrated its reluctance to strengthen customary
international law and guarantee indigenous rights.
The Court’s Decision Implicitly Endorses
Continuing Colonial Mentality Because the
Court Fails to Take the Claims of the Chaggossians
Into Consideration
a
Another troubling aspect of the Court’s decision, particularly
given the deference afforded to the U.K.’s supposed “compensation,” settlement of the Chagossians’ claims, and the failure to
recognize the protection that should be afforded to indigenous
populations, is the Court’s tacit endorsement of the underlying
colonial mentality. Although the Court noted the “callous and
shameful treatment which [the Chagossians] suffered,”52 the
Furthermore, the Court’s decision suggests that any colonial
power could simply give nominal compensation for the forceful
removal of a population and, in doing so, effectively foreclose
any claims that the victims would have otherwise been entitled
to under the Convention. This is a troubling holding that greatly
undermines the protection of human rights under the Convention
41
Despite international recognition that forcefully removing a
poulation from its territory violates international law, the Court
implicitly endorsed a continuation of an all too familiar colonial
narrative. In reaching its short-shrift decision ruling the case
inadmissible, the Court found that an entire population had
relinquished their right to their homeland simply because the
colonial power had given them a nominal amount of compensation that came attached with an unknown waiver.
The Court should correct its approach and bring its jurisprudence in line with customary international law and other
regional courts to avoid further injustice. Indigenous populations receive special protection under customary international
law, and greater injustice could result if the Court overlooks
the problems in this decision and fails to adapt its approach to
conform with international standards. The Court will face new
claims from indigenous populations and other group applicants
and should change its analysis to ensure that other groups are not
denied the ability to obtain justice.
USS Saratoga moored at a port in Diego Garcia. Photo courtesy
US Navy.
and the legitimacy of the Court. UNROW, along with many
advocating on behalf of the Chagossians, questions whether the
Court’s rationale was based on legal principles or the Court’s
desire to avoid inflaming political sensitivities. Regardless of the
reasons for its refusal to hear the case on the merits, the Court
has now acted as a rubber stamp for a European power’s grievous
wrongs against an indigenous population.
This case is not the end of the legal road for the Chagossians,
nor the end of their struggle to return home. For example, the
lease on the Chagos Islands is coming up for review in 2016,
which presents an opportunity for the global community to rally
behind the Chagossians and inform the U.S. and U.K. governments that they must not continue this unacceptable colonial
practice. This grievous injustice needs attention, and it is up to
the relevant bodies to ensure that similar subsequent cases do
not follow this troubling piece of jurisprudence. Unfortunately,
world leaders can now point to this ECtHR decision and declare
that the Chagossians’ claims are, as ruled by the Court, invalid.
It is in situations like these that advocates of human rights
must persevere in the effort to advance the development of
international human rights law in a direction that leads to greater
protection for all individuals—including the little-known and
disenfranchised Chagossians who hailed from a forgotten island
in the center of the Indian Ocean.
Conclusion
The Chagossians’ story stands out because, unlike other
examples of colonial takings, it cannot be relegated to ancient
history. Thus, the Court’s careless treatment of the Chagos
Islanders v. the United Kingdom case is all the more relevant and
troubling. By finding that nominal compensation and unknowing
waiver could bar an entire population from seeking justice, the
Court did great damage to the development of international rule
of law with respect to the protection of indigenous populations.
Endnotes
1
The U.S. Government Must Redress Wrongs Against the
Chagossians, White House Petitions, https://petitions.whitehouse.
gov/petition/us-government-must-redress-wrongs-againstchagossians/gPRF7hmz (last vistited June 5, 2013).
2 See Michael Posner, Philip Gordon, and Andrew Shapiro,
Response to We the People Petition on Redressing Wrongs Against
the Chagossians, White House Petitions, https://petitions.
whitehouse.gov/response/response-we-people-petition-redressingwrongs-against-chagossians (last visited June 5, 2013).
3 Noelene Clark, ‘Star Wars’: Obama White House says no
to Death Star petition, LA Times, (Jan. 12. 2013) available at
http://herocomplex.latimes.com/movies/star-wars-obama-whitehouse-responds-to-death-star-petition/.
4 See generally Sandra Evers and Marry Kooy, Eviction from
the Chagos Islands: Displacement and Struggle for Identity
Against Two World Powers (2011), available at http://www.unisa.
ac.za/contents/ colleges/docs/Intro_Timeline.pdf.
5 Id.
6 Mark Curtis, Web of Deceit: Britain’s Real Role in the
World, Ch. 13 (2003) (“A secret document signed by Michael
Stewart [Foreign Secretary] in 1968, said: ‘By any stretch of the
English language, there was an indigenous population, and the
Foreign Office knew it.’”); see also David Vine, Island of Shame
21-23 (2009) (naming the Chagossians’ enslaved ancestors as the
first permanent inhabitants of the island).
7 Evers and Kooy, supra note 4.
8 Elena Landriscina, Accepting Responsibility for the
Displacement of the Chagos Islanders, JURIST—Dateline,
(Apr. 26, 2012), available at http://jurist.org/dateline/2012/04/
elena-landriscina-chagos-islanders.php.
9 Id.
10 Evers & Kooy, supra note 4.
11 Chagos Islanders v. the United Kingdom, 35622/04, Eur. Ct.
H.R., ¶ 12 (Dec. 2012) [hereinafter Chagos v. U.K.].
12 Id.
14 Chagos v. U.K. at ¶ 12.
15 Id.
17 Id.
18 Id.
19 Id.
42
20
41
Eur. Ct. H.R., Practical Guide on Admissibility Criteria,
16–20 [hereinafter ECtHR Admissibility Guide]; see also European
Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 35, Sept. 3, 1953, 213 U.N.T.S. 222 [hereinafter
ECHR].
21 ECtHR Admissibility Guide, supra note 20 at 16.
22 Id. at 12–14.
23 Id. at 25.
24ECHR, supra note 20, at art. 35 § 1, § 3(a).
25 Chagos v. U.K., 35622/04, Eur. Ct. H.R., ¶¶ 78-83, (Dec. 2012)
(indicating that due to the Ventacassen litigation, the victims had
received reparations).
26 Id.
27 Id.
28 Id.
29 ECtHR Admissibility Guide, supra note 20, at ¶ 22.
30 Id. at ¶ 25.
31 Chagos v. U.K., 35622/04, Eur. Ct. H.R., ¶ 81, (Dec. 2012).
32 Id. at ¶ 3.
33 See Caraher v. the United Kingdom, 24520/94, Eur. Ct. H.R.
(2000).
34 Chagos v. U.K., at ¶¶ 1, 12, 53.
35 Id. at ¶ 53, 81.
36 Id. at ¶ 53.
37 Chagos Islanders v. Attorney General, High Court of Justice
Queen’s Bench Division, ¶ 156, (Oct. 9, 2003) U.K. available
at http://pre.docdat.com/docs/index-150077.html.
38 ECtHR Admissibility Guide, supra note 20 at ¶ 30.
39 Id. at ¶ 31 (noting, for examle, that in one case a newphew
was ruled an indicrect victim but in another a son was ruled not
an indirect victim).
40 See Submission for Human Rights Watch & Minority Rights
Group International as interveners, Chagos Islanders v. the United
Kingdom, 35622/04, Eur. Ct. H.R. (Dec. 2012), available at, http://
www.hrw.org/news/2009/10/02/chagos-islanders-v-united-kingdom.
Id. at ¶15.
Id. at ¶ 16, (citing General Assembly Resolution 61/295, 13
September 2007).
43 Id.
44 Id. (citing Rodolfo Stavenhagen, former UN Special Rapporteur
on the situation of human rights and fundamental freedoms of
indigenous peoples).
45 Id. at ¶ 18.
46 Id. at ¶ 15, 17-18.
47 See Pueblo Indigena Kichwa de Sarayaku v. Ecuador, Mertis,
and Reparations, Inter-Am. Ct. H.R. (ser. C) No. 245 (Sept. 3,
2012).
48 Ecuador: Inter-American Court ruling marks key victory for
Indigenous Peoples, Amnesty Int’l (Jul. 27, 2012), available at
http://www.amnesty.org/en/news/ecuador-inter-american-court-ruling-marks-key-victory-indigenous-peoples-2012-07-26 [hereinafter
Amnest Int’l].
49 American Convention on Human Rights, art. 21.2, Nov. 22,
1969, 1144 U.N.T.S. 123 [herinafter American Convention].
50 Compare ECHR, supra note 20, at Protocol, art. 1 (“Every
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.”), with American
Convention, supra note 49, at art. 21.2 (“No one shall be deprived
of his property except upon payment of just compensation, for reasons
of public utility or social interest, and in the cases and according to
the forms established by law.”).
51 See Amnesty Int’L, supra note 48.
52 Chagos v. U.K, supra note 11 at ¶ 83 (Dec. 2012).
53 Chagos islanders’ case inadmissible because they accepted
compensation and waived the right to bring any further claims
before the U.K. national courts, Press Release, ECHR 460 ¶ 4
(Dec. 20, 2012).
42
43
Interview with Laritza Diversent,
Director of the Cubalex Legal Information Center
L
Introduction
HRB: What role do human rights play in your
work?
aritza Diversent is a Cuban attorney,
independent journalist, and human rights
defender. She graduated from the University
of Havana Law School in 2007 and along
with several other lawyers founded the Cubalex
Legal Information Center. Cubalex is dedicated
to educating Cubans about their legal rights
under the country’s constitution and body of laws,
as well as under international standards. The Human
Rights Brief had the opportunity to speak with her
about her work and the human rights situation
on the island.
LD: The Legal Information Center also aspires
to be a specialized reference agency for formal
complaints of human rights violations on the island
in a professional, legal, and effective manner, with
the goal of changing the Cuban government’s
human rights reputation at the Inter-American
Commission on Human Rights and the United
Nations. Accordingly, the office performs key
actions, such as increasing the pro bono representation and legal analysis available in Cuba and
increasing the knowledge and level of understanding of domestic and international law, especially
human rights law, in pro-democracy activists.
Human Rights Brief: What does the Cubalex Legal
Information Center do?
HRB: How many clients does the Cubalex Legal Information
Center have? And, what type of cases do you take?
Laritza Diversent: The Cubalex Legal Information Center
is an independent office (not state-affiliated and part of civil
society) located in Cuba. It offers free legal advice on national
and international human rights issues for Cuban nationals and
foreigners who solicit guidance, either in person, by phone, mail,
or e-mail. It advises on national and international legal issues,
such as housing, migration, inheritance, criminal justice reform,
constitutional law, the exercise of civil and political rights, and
anything else of interest to Cuban citizens. The Center investigates individual complaints related to human rights violations
that infringe national law or international norms and obtains
evidence about cases under investigation. As such, the Center
requires its clients to provide official documentation to support
their allegations if their case moves forward. We prepare memos
for our clients, explaining the pertinent legal information and
giving recommendations, always in written form, either by
electronic or hard copy.
LD: The Cubalex Legal Information Center responded to a
total of 574 requests for services in 2012, of which 302 were
new cases. Of the requests for services we responded to, 289
were made by political dissidents, 38 were made by inmates, and
121 were made by people with no apparent political motivation.
The Legal Information Center gathers all the legal information
required for each specific case and the necessary documentation
to analyze every detail and write a memo that explains all the
facts and legal issues that apply to the situation. In another
document, the Center issues its recommendations and details the
legal processes that the client could follow to try to remedy his
or her problem, as well as steps that should be taken, letting him
or her know about the existence of any alternatives that could
be followed, including those that could be taken in the regional
or international context that do not require a total exhaustion of
domestic remedies. If the client needs to submit a letter to the
authorities, the office assumes the task of writing and printing
it, basically because attorneys who work in the system do not do
this and in this country state agencies do not provide printing
services for digital documents. Cubalex prints copies of every
document for its files to be able to give copies to any authorities
when necessary and to confirm receipt. If the client is required
to send a report or communication to a regional or international
human rights organ, Cubalex prepares it either ex officio or at the
request of the interested party, satisfying all legal requirements,
and sends it electronically.
HRB: Why is the work that you do important?
LD: The majority of Cuban citizens are unfamiliar with the
prevailing judicial system on the island or the steps that they must
take to perform a determined legal action, whether it is civil,
criminal, administrative, or family-related. This is especially
true for civil and political rights. Frequently, they are victims of
arbitrary and selective application of the law. In this respect, the
Cubalex Legal Information Center aims to increase pro bono
representation and legal analysis available in Cuba, as well as
the capacity of political dissidents, human rights activists, and
everyday citizens located inside or outside the country who seek
our help to defend themselves. Cubalex offers its clients detailed
information about the Cuban legal system, the legal norms that
apply to their case, and appropriate procedures to follow before
government, regional, or international institutions.
44
national and international level. This advice also has the goal
of improving legal defense arguments when dealing with Cuban
authorities and activating international procedures to denounce
human rights violations on the island.
HRB: Has the Cubalex Legal Information Center brought
cases before any international human rights organization?
LD: In 2012 the office sent a communication about 69 detentions to the Working Group on Arbitrary Detention. We sent
communications to four of the Special Rapporteurs—two to the
Special Rapporteur on Torture, Cruel, Inhuman and Degrading
Treatment, one to the Special Rapporteur on Human Rights
Defenders, and one to the Special Rapporteur on the Right to
an Adequate Standard of Living. We sent twelve requests for
precautionary measures to the Inter-American Commission on
Human Rights—two of those were granted, for dissidents Sonia
Garro Alfonso and José Díaz Silva; two were denied; and the
Commission has asked for updated information on four of the
cases we sent. The office also sent a report about the human
rights situation in Cuba to the Working Group for Universal
Periodic Review at the Office of the United Nations High
Commissioner for Human Rights, but we have not received any
information from them. Cubalex stays apprised of the development of each of its cases in order to be able to offer legal advice
at any moment and assist with the exhaustion of domestic legal
remedies. Thanks to this close following, the majority of clients
follow our recommendations to the letter and let us know about
any decision they are going to take or any doubts they have.
They are very satisfied and thank us for our services and the
knowledge that they can count on having our assessment when
they need it. Our permanent goal is to find an adequate legal
avenue that requires the governmental authorities to respond
and address the complaints of fundamental rights violations
on the island.
HRB: What are the most common types of complaints of
human rights violations that are brought to the Center? And how
do your clients describe them in their daily lives?
LD: The most frequent violations are related to guarantees
in judicial, civil, and administrative procedures, principally due
to the Cuban courts’ lack of independence. For example, police
investigations should not destroy the presumption of innocence,
but often the cases are manipulated in the beginning stages
of the proceeding, prejudicing the accused. Often the only
incriminating evidence is the scent of the person—a questionable piece of evidence given the way in which witnesses recall
it. Technical scientific evidence, like DNA, is optional for these
institutions and in practice they are not used because of their
cost. The right to defense is violated first because the defense
attorneys are members of the only lawyers’ organization that
exists in the country, so they are not independent and have little
access to their clients during the preliminary stages. The accused
are interrogated without an attorney present and can only hire
one after being detained for seven days, when the prosecutor
gives an order of provisional detention. Psychological torture is
used in these interrogations. Criminal records are full of racist
stereotypes of the Afro-descendant population, with race alone
often constituting irrefutable proof of guilt, according to the
authorities. People with scarce resources have a better chance of
ending up in prison as a result of the transgressions, corruption
and cronyism of and among police, prosecutors, judges, and
defense attorneys. In many cases, judges abuse their power when
deciding which evidence to consider, often to the detriment of
the accused and in violation of due process, which contributes to
the climate of insecurity within the legal system, in civil, criminal, and administrative matters. Many of our clients are inmates
and demonstrate their lack of conformity with the administration
of justice by going on hunger strikes as a form of protest against
arbitrary judicial processes and against the abuse of power by
members of the Ministry of the Interior, which in the best case
cause irreversible illness, and in the worst case, death. Inmates
are transferred to a detention center outside the province in
which they live, in violation of legal procedure, a measure that
equally affects their families by obligating them to spend money
on travel when they do not have sufficient resources to do so.
These violations also directly affect the dissidents who, through
judicial processes, are repressed and prevented from exercising
their rights. The impunity of the Ministry of the Interior and
the lack of independence of so many judges and prosecutors
radically increases the number of arbitrary detentions in which
the rights, especially of the opposition, are violated and physical
and psychological torture are utilized.
HRB: Why do you think it is necessary to have the type
of legal assistance that the Cubalex Legal Information
Center offers?
LD: Cuban citizens are daily victims of the abuse of power
and the state organs act with total ignorance of international
human rights standards, principally because national legislation is not compatible with international norms. Within the
legal system, there are no judicial recourses for human rights
violations. The Constitution does not recognize any national
institution competent in the area of promoting and protecting
human rights. There is an inter-institutional system, which
prevents the receipt of complaints or individual petitions, that
is supported by the Constitution and integrated by institutions
such as the Attorney General of the Republic and the Supreme
Court, the National Organization of Lawyers, the security forces
and the central government administration. The system provides
for mandatory answers, but not court processing or a solution if
the complaint is proven to be true. The sixty-day response term
is way too long and does not provide for an exception in urgent
cases. There is no separation of powers between the legislative,
executive and judicial branches; there is no group of attorneys
independent from those of the state, and the Supreme Court does
not have the ability to declare legislation that violates human
rights to be unconstitutional. As a group of independent lawyers,
Cubalex investigates and tries to find an effective solution for
human rights violations alleged by citizens, through advice and
direct legal assistance, to increase, in the short and long-term,
fundamental knowledge about the Cuban legal system and the
means through which human rights can be defended at the
HRB: Have you seen any sort of implementation of change?
LD: Small sectors of the population benefit from change, but
they are insufficient and leave the precarious economic situation
of the country intact, which has been aggravated for twenty
years since the fall of the Socialist Union. These are economic
changes and do not include what the nation needs to live in
democracy. They do not include civil and political rights.
45
HRB: What do you think of the Castro brothers’ retiring?
HRB: Have you been afraid while doing the work that you
do? What inspires you to keep doing it?
LD: The time has come. I cannot believe it myself when
I say that the destiny of my country depends on two people
staying in power, Raúl and Fidel Castro, but I find it even more
incomprehensible that we Cubans have taken no action against
this uncertainty. I keep thinking that the destiny of the Cuban
people is in our hands, but the reality says something else.
LD: Being in Cuba is always frightening because the general
situation of insecurity can result in a lack of judicial independence. At any moment anyone can become a victim of selective
application of the law, and even more so if you dissent against
government policies, in which case you could be exposed to
degrading treatment and torture, which are very hard to document
in this country because of the lack of independent institutions to
protect human rights. It is precisely this fear that inspires me. For
example, when I was a little girl I was always afraid of frogs,
but when my son was born I controlled my fear so as not to
transmit it to him. I am still afraid, but I can control my fears
for an end that I consider to be greater. I am completely aware
and I assumed these risks to do what I do in my country, but my
commitment to the defense of human rights is greater, not only
for the future of my family but because of the many stories I
hear of people who have not been able to control their fears of
the government and therefore suffer not only the bad treatment
of the authorities, and also the frustration and impotence of not
having been able to confront their fear. This also inspires me.
HRB: Where do you get support for your organization
in terms of solidarity?
LD: We receive support from many exiled Cubans and
foreigners and non-governmental organizations located in other
countries that are committed to human rights and consider our
work to be important. I would like to take this opportunity to
thank them in the name of Cubalex and all the people we have
been able to help.
Christina M. Fetterhoff conducted this interview for the
Human Rights Brief.
46
Entrevista con Laritza Diversent,
Directora del Centro de Información Legal Cubalex
L
Introducción
procedimientos en cuestión a seguir ante las instituciones
gubernamentales, regionales o internacionales.
aritza Diversent es abogada cubana, periodista independiente y defensora de los derechos humanos. Se recibió de
la Facultad de Derecho de la Universidad de La Habana
en 2007 y fundó el Centro de Información Legal Cubalex
junto con unos otros abogados. Cubalex se dedica a educar a
los cubanos sobre sus derechos legales bajo la constitución,
la jurisprudencia del país y los estándares internacionales. El
Human Rights Brief tuvo la oportunidad de conversar con ella
sobre su trabajo y la situación de derechos humanos en la isla.
HRB: ¿Qué papel juegan los derechos humanos en su
trabajo?
LD: El Centro de Información Legal también aspira ser
una organización de referencia especializada en la denuncia
de violaciones de derechos humanos en la isla, de manera
profesional, legal y efectiva, como revertir la reputación del
gobierno cubano en materia de derechos humanos tanto en la
Comisión Interamericana de Derechos Humanos como en la
Organización de Naciones Unidas. En consecuencia la oficina
tiene como acciones fundamentales las siguientes: aumentar
la representación pro bono y el análisis jurídico disponible en
Cuba y aumentar el nivel de conocimiento y entendimiento
entre los activistas pro-democráticos sobre las leyes cubanas e
internacionales, especialmente en materia de derechos humanos.
Human Rights Brief: ¿Qué hace el Centro de Información
Legal Cubalex?
Laritza Diversent: El Centro de Información Legal Cubalex
es una oficina localizada en Cuba, que se especializa en asuntos
legales que de forma independiente (no gubernamental e
integrado en la sociedad civil) y gratuita, se dedica a asesorar
en materia de derechos humanos en el ámbito nacional e internacional a la personas cubanas y extranjeras, que lo soliciten
personalmente, por vía telefónica, correspondencia escrita o
correo electrónico, y a dictaminar sobre temas jurídicos nacionales e internacionales, tales como procesos de legalización
de vivienda, trámites migratorios, sucesorios, procesos de
revisión penal, procedimientos constitucionales, ejercicio de
los derechos civiles y políticos, etc., y todos aquellos que sean
de interés para los ciudadanos cubanos. El Centro investiga
denuncias individuales relativas a violaciones de los derechos
humanos que infringen la legislación nacional y normas internacionales en la materia y obtiene pruebas sobre los casos objetos
de investigación, para lo cual exigimos a los interesados que
aporten la documentación oficial, en el caso en que proceda,
para respaldar sus alegaciones. La información legal la damos a
conocer a través de dictámenes con recomendaciones, emitidos
siempre de forma escrita, en formato digital y/o en papel.
HRB: ¿Cuántos clientes tiene el Centro de Información
Legal Cubalex? ¿Y, qué tipo de solicitudes atiende?
LD: El Centro de Información Legal Cubalex, atendió en
el 2012, un total de 574 solicitudes de sus servicios, formando
302 nuevos expedientes. De las solicitudes atendidas 289 fueron
realizadas por disidentes, 38 fueron hechas por personas recluidas, 121 fueron efectuadas por personas que aparentemente no
tienen motivaciones políticas. El Centro de Información Legal
con toda la información jurídica requerida para el caso específico y la documentación necesaria analiza cada particularidad
y emite un dictamen en el que expone todos los fundamentos
de hecho y de derecho que se aplican a la situación expuesta.
En un documento aparte emite sus recomendaciones, en la que
detalla los procesos legales que puede seguir el consultante para
intentar remediar su problema, así como los trámites que debe
cumplimentar, haciéndole saber de la existencia de procedimientos alternos, que pudiera seguir, si existieren, y los que pudiera
realizar en el ámbito regional e internacional, incluso sin tener
que agotar totalmente la vía legal interna. Si el consultante
requiere presentar un escrito ante las autoridades, la oficina
asume su redacción e impresión, fundamentalmente porque
los abogados que trabajan en el sistema no asumen esta tarea y
en el país no se prestan servicios de impresión de documentos
digitales en los establecimientos estatales que prestan servicios
a la población. De cada escrito Cubalex imprime copias para
el archivo, para presentar a cuantas autoridades sea necesario
y para acuse de recibo. Si el consultante requiere enviar un
reporte o comunicación a un organismo internacional regional o
internacional de derechos humanos, Cubalex elabora ya sea de
oficio o a instancia del interesado, la comunicación con todos
los requisitos legales exigidos, enviándola posteriormente, vía
electrónica.
HRB: ¿Por qué es importante el trabajo que hace?
LD: La mayoría de los ciudadanos cubanos desconocen el
sistema jurídico imperante en la isla y los procesos que deben
realizar para ejercer una determinada acción legal, sea en materia civil, penal, administrativa, de familia, etc., principalmente
aquellos que se relacionan con sus derechos civiles y políticos.
Frecuentemente son víctimas de la aplicación arbitraria y
selectiva de la ley. Al respecto el Centro de Información Legal
Cubalex pretende aumentar la representación pro bono y el
análisis jurídico disponible en Cuba, así como la capacidad de
autodefensa de los disidentes, activistas de derechos humanos
y ciudadanos comunes residentes dentro o fuera del territorio
nacional, que soliciten sus servicios. Cubalex ofrece a sus
clientes información detallada sobre el ordenamiento legal
cubano, las normas jurídicas que se aplican a su caso y los
47
HRB: ¿El Centro de Información Legal Cubalex recurre
a alguna organización internacional de derechos humanos?
la asesoría y asistencia legal directa y así fomentar, a corto y
mediano plazo, conocimiento fundamental sobre el sistema
legal cubano y los medios de defensa de los derechos humanos
que existe tanto a nivel nacional como internacional, entre los
ciudadanos cubanos, asesoría que además tiene el objetivo de
mejora de la capacidad de defensa con argumentos legales al
tratar con los representantes de las autoridades cubanas y activar
procedimientos internacionales de denuncia por las violaciones
de los derechos humanos en la isla.
LD: En el 2012 la oficina envió al Grupo de Trabajo sobre
Detenciones Arbitrarias comunicación sobre 69 detenciones.
Enviamos comunicación a 4 de los relatores especiales, 2
al Relator Contra la Tortura, Tratos Crueles Inhumanos y
Degradantes, 1 a la Relatora sobre Defensores de Derechos
Humanos, 1 al Relator sobre Vivienda Mínima Adecuada.
Enviamos 12 solicitudes de medidas cautelares a la Comisión
Interamericana de Derechos Humanos y 2 de ellas fueron otorgadas, a los disidentes Sonia Garro Alfonso y José Díaz Silva,
2 fueron denegadas y el organismo regional ha solicitado información actualizada sobre 4 de los casos enviados. La oficina
envió informe sobre la Situación de los Derechos Humanos en
Cuba al Grupo de Trabajo sobre el Examen Periódico Universal
de la Oficina del Alto Comisionado de las Naciones Unidas,
aunque no ha recibido notificación del organismo internacional.
Cubalex se mantiene al pendiente de la evolución de cada uno de
sus casos, para prestar asistencia legal en el momento requerido
y ayudarlos al agotamiento de la vía legal interna. Gracias a este
seguimiento la mayoría de lo consultantes, sigue al pie de la letra
nuestras recomendaciones y nos comunican acerca de cualquier
decisión que vayan a tomar o duda que tengan en cualquier tema
y con gran satisfacción agradecen el servicio prestado y el saber
que pueden contar con nuestra asesoría cuando lo requieran. Nos
empeñamos en encontrar una vía legal adecuada que obligue de
forma efectiva y positiva, a las autoridades gubernamentales
a dar respuesta y solución a las denuncias de violación de los
derechos fundamentales dentro de la isla.
HRB: ¿Cuáles son las denuncias de violaciones de derechos
humanos más comunes que llega al Centro? ¿Y, cómo las
describen sus clientes como parte de sus vidas diarias?
LD: Las violaciones más frecuentes se refieren a las
garantías en procesos judiciales, civiles y administrativos,
motivados principalmente por la falta de independencia de los
tribunales cubanos. Por ejemplo las investigaciones policiales
son insuficientes para destruir la presunción de inocencia, y
en no pocos casos son manipuladas en la fase de instrucción,
en perjuicio de los acusados. En no pocas ocasiones la única
evidencia incriminatoria es una huella de olor de la persona, una
prueba cuestionable por su forma de recolección. Las pruebas
científico-técnicas, como el ADN, son opcionales para los órganos de instrucción y en la práctica no se realizan por sus costos.
El derecho de defensa se ve vulnerado primero porque los defensores son miembros de la única organización de abogados que
existe en el país, no son independientes y tienen poco acceso a
la fase de instrucción. Los acusados son interrogados sin contar
con la presencia de su abogado, que pueden contratarlo a los 7
días de su detención cuando el fiscal dicte el auto de prisión
provisional. En esos interrogatorios se aplican técnicas de
tortura psicológica. Los antecedentes penales constituyen para
las autoridades una prueba irrefutable de culpabilidad, en los que
están presentes estereotipos racistas que afectan principalmente
a la población afrodescendiente, que es totalmente ignorada
dentro del país. Las personas de bajos recursos tienen más posibilidad de terminar en prisión, por la prevaricación, corrupción y
amiguismo entre agentes policiales, fiscales, jueces y abogados
defensores. En no pocas sentencias se comprueban abuso del
principio de la libre valoración de la prueba, que le da a los
jueces la potestad de decidir qué evidencias escoger y cuáles
rechazar en perjuicio de los acusados, violando las garantías del
debido proceso, situación que agrava el clima de inseguridad
jurídica dentro del sistema, tanto en materia civil como penal
y la administrativa. Muchos de nuestros clientes son personas
recluidas y muestran su inconformidad con la administración
de justicia colocándose en huelga de hambre, una forma de
protesta contra procesos judiciales arbitrario y contra el abuso de
poder de los miembros del Ministerio del Interior, común en los
centros penitenciarios que le ha costado en el mejor de los casos
enfermedades irreversibles, en el peor la muerte. Los reclusos
son trasladados a centros penitenciarios fuera de su provincia
de residencia, violentando disposiciones legales, medida que
afecta igualmente a sus familias, al obligarlas a realizar gastos
en viaje, cuando no disponen de ingresos económicos con que
afrontarlos. Estas violaciones también afecta de manera directa
a los disidentes que mediante procesos judiciales son reprimidos
para impedirles ejercer sus derechos. La impunidad de los
órganos del Ministerio del Interior y la falta de independencia
tanto de jueces como de fiscales dispara el record de detenciones
HRB: ¿Por qué a Ud. le parece necesario tener asistencia
legal del tipo que el Centro de Información Legal Cubalex
ofrece?
LD: Los ciudadanos cubanos a diario son víctimas del abuso
de poder y los órganos del estado actúan con total desconocimiento de las normas internacionales en materia de derechos
humanos, principalmente porque la legislación nacional no está
compatibilizada con la normativa internacional en la materia.
Dentro del sistema legal no existen recursos judiciales contra
actos violatorios de derechos humanos. La Constitución no
reconoce a ninguna institución nacional competente en el ámbito
de la promoción y protección de los derechos humanos. Existe
en el país un sistema interinstitucional, que prevé la recepción de
quejas o peticiones individuales, respaldado constitucionalmente
e integrado por instituciones tales como la Fiscalía General de
la República y el Tribunal Supremo Popular, la Organización
Nacional de Bufetes Colectivos, los Órganos del Poder Popular
y los Organismos de la Administración Central del Estado. El
sistema prevé la obligatoriedad de respuestas; pero no su tramitación en la vía judicial, ni la solución si se comprueba fundada
la denuncia. El término de 60 días naturales para responder, es
demasiado extenso y no prevé excepción para casos urgentes.
No hay separación de los poderes legislativo, ejecutivo y
judicial; no existen colegios de abogados independientes al
Estado y el Tribunal Supremo Popular no tiene facultades para
declarar inconstitucionales las normas que vulneren derechos
humanos. Como grupo de abogados independiente, Cubalex
investiga y trata de buscar solución efectiva las violaciones
de derechos humanos que aleguen los ciudadanos, mediante
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consciente y asumí los riesgos que corro por hacer lo que hago
dentro de mi país, pero mi compromiso con la defensa de los
derechos humanos es mayor, no solo por el futuro de mi familia;
sino por las tantas historias que escucho de personas que no han
podido controlar su miedo al sistema y sufren no solo el mal
trato de las autoridades, también la frustración y la impotencia
de no poder enfrentarlo. Eso también me inspira.
arbitraria en las que se violentan, principalmente a los opositores, los derechos humanos y se aplican técnicas de tortura
física y psicológica.
HRB: ¿Ha visto Ud. algo de implementación de los cambios?
LD: Los cambios benefician a pequeños sectores dentro de
la población, pero son insuficientes y dejando intacta la precaria
situación económica que se vive en el país, agravada desde hace
20 años después de la caída del campo socialista. Estos cambios
son de tipo económico y omiten los que necesita la nación
para vivir en democracia. No alcanzan los derechos civiles y
políticos.
HRB: ¿Qué opina de la jubilación de los Castro?
LD: Que debe llegar ya. No me puedo creerme yo misma
cuando digo que el destino de mi país depende de la estancia en
el poder de dos personas, Raúl y Fidel Castro, pero me resulta
más incomprensible que los cubanos no hagamos nada contra
esa incertidumbre. Sigo pensando que el destino del pueblo de
Cuba está en sus manos, pero la realidad actual dice otra cosa.
HRB: ¿Ha tenido miedo por hacer el trabajo que hace? ¿Qué
le inspira a seguir?
LD: Estando dentro de Cuba siempre se teme, la situación
de inseguridad puede resumirse en la falta de independencia del
poder judicial. En cualquier momento puede ser víctima de aplicación selectiva de la ley, mucho más si disiente de las políticas
gubernamentales en cuyo caso estaría expuesto a malos tratos
y torturas, muy difícil de documentar en el país, por la falta de
organismos independientes dentro de la isla que se encargue
de la protección de los derechos humanos. Es precisamente
ese miedo el que me inspira, por ejemplo, cuando pequeña
siempre temí a las ranas, pero cuando nació mi hijo, controlé el
temor para no trasmitírselo. Aún le temo, pero puedo controlar
mis miedos por un fin que considero mayor. Estoy plenamente
HRB: ¿De dónde viene el apoyo para su organización? No
digo en términos financieros, pero en cuanto a solidaridad.
LD: Recibimos apoyo de muchos cubanos exiliados y
residentes en el extranjero y organizaciones no gubernamentales
también radicadas en otros países que tienen compromiso con
los derechos humanos y consideran nuestro trabajo de importancia. Aprovecho este espacio para agradecerles en nombre de
Cubalex y de todas las personas que hemos podido ayudar.
Christina M. Fetterhoff preparó esta entrevista para el
Human Rights Brief
49
The 147Th Period of Sessions of the
Inter-American Commission on Human Rights
Human Rights and Criminalization
of Abortion in South America
The criminalization of abortion has a
discriminatory impact on lower-income
women and adolescent girls, petitioners
alleged in a hearing on human rights
and the criminalization of abortion in
South America at the Inter-American
Commission on Human Rights (IACHR)
on March 15, 2013.
The petitioners presented findings from
their study on the discriminatory effects
of the criminalization of abortion on
women seeking post-abortion care in health
services in Brazil, Bolivia, Argentina, and
Peru. The study indicated that health care
providers reporting their patients to the
police, who in turn often detained the
patients for lengthy periods of time even
though the patients were not ultimately
charged, violated the rights to privacy
and to due process. These violations also
implicate the broader rights to health and
to privacy.
The petitioners characterized unsafe
abortion as a grave public health problem,
contributing to high rates of women’s
morbidity and mortality across the countries studied. They noted that abortion is
a necessity, and that the criminalization of
the procedure does not deter women from
seeking abortion services; rather, it forces
the women underground to informal and
unsafe medical services.
The petitioners noted that while actual
prosecution of women for having abortions
is extremely rare, with most prosecutions
aimed instead at the health care providers,
these women are still victimized by the
criminal justice system through extensive
investigation and pre-trial detention, often
with deleterious health consequences for
the women.
The rights to due process and presumed
innocence, as well as the right against
self-incrimination found in Art. 8 of the
American Convention, the petitioners
argued, are all implicated when doctors
report their own patients to the authorities.
While Peru is the only country that has
a statutory mandate for providers to
report any patients that come in seeking
post-abortion care, providers in the other
countries studied often break confidentiality
to report their patients, even though reporting is not required. In these cases, there
are no consequences for the providers
who violate their patients’ confidentiality,
despite the Convention’s Art. 11 guarantee
of the right to privacy.
The petitioners concluded their
testimony by asking that the Commission
decriminalize abortion and all legal
restrictions related to misoprostol and
mifepristone (two common over-thecounter drugs that many women use to
terminate their pregnancies), and establish
protocols for access to legal abortion. The
petitioners also asked the Commission to
create juridical norms that prohibit health
professionals from reporting their patients
to the authorities (only for Peru), and in all
cases, guarantee patients’ confidentiality
and right to not incriminate themselves.
Finally, the petitioners requested that
the Commission implement policies to
sensitize and train health workers, police,
and judicial operators on abortion issues.
Commissioner Antoine acknowledged
that the issue was not just about women’s
rights and personhood, but also implicated
the right to health, as well as the lack
of proportionality in terms of the states’
responses, both in relation to harsh criminal
penalties and the cruel and inhuman pretrial processes. As the Rapporteur of the
Rights of Afro-descendants, she noted the
discriminatory impact on Afro-Brazilian
women, and how racial inequalities
intersect with reproductive rights.
Commissioner Antoine encouraged the
petitioners to bring her more information
and noted that the Commission can offer
its support in urging states to rethink their
criminalization of abortion and to implement the petitioners’ recommendations.
Commissioner Ortiz asked the petitioners
if they have compared abortion in one country
before and after its decriminalization. She
noted the idea that decriminalizing abortion saves lives, and that this information
should be shared. Commissioner Ortiz
asked for any good practices from NGOs
that the Commission could publicize. As
50
Rapporteur on the Rights of the Child, she
specifically asked about best practices for
pregnant teenagers.
Commissioner Robinson noted that
even in states that allow termination in
some circumstances (e.g., for the health
of the woman, in cases of rape or incest),
there are still human rights violations.
Commissioner Robinson expressed her
interest in the due process implications of
the decision-making process and wanted
to know whether the decision-makers
were medical or judicial professionals.
She asked whether there has been any
accountability for providers that break
confidentiality in countries outside Peru,
where providers are not allowed to share
such information. Finally, she asked a
broader question about the relationship
between abortion and access to emergency
contraception, sterilization, and other
sexual and reproductive rights issues.
The petitioners responded by emphasizing the disparate impact on poor women,
given that women with resources can go to
elite clinics that perform abortions safely.
They reiterated that criminalizing abortion
does not disincentive it, because abortion
is a necessity; all it does is lower health
standards and put women more at risk.
As for adolescents, most do not have the
legal capacity to access services without
their parents’ consent, even though they
may have the legal capacity to consent to
sexual activity.
In regard to best practices, petitioners
noted that in Argentina, when an adolescent arrives wanting to terminate a
pregnancy, a health care provider informs
the patient of the legal status of abortion,
whether her case falls into one of the
exceptions to criminalization, and, assuming the provider cannot legally perform
the abortion herself, informs her of the
safe and unsafe ways to abort on her
own. In Uruguay, better information on
misoprostol has decreased abortion-related
morbidity.
With regard to accountability, breaking
confidentiality is a criminal offense in
Argentina, but doctors are never prosecuted. In Peru, abortion is only legal if it
implicates the health of the mother, but the
state has no protocol for doctors to follow,
so abortions are never offered, even when
a woman’s health is in danger, because
doctors are afraid of being prosecuted.
Lauren Nussbaum covered this hearing
for the Human Rights Brief.
Situation of Human Rights
of Persons Detained in the
Guantanamo Bay Naval Facility
Since the United States opened the
detention center at the Guantanamo Bay
Naval Station (“Guantanamo”) in 2002,
it has been the center of controversy for
alleged human rights violations. The status
of the detainees who purportedly have
suffered violations while held at
Guantanamo was the subject of a March
12, 2013, hearing at the Inter-American
Commission on Human Rights (IACHR,
Commission).
Francisco Quintana and Charles Abbott
of Center for Justice and International
Law (CEJIL) began by addressing the
Commission’s history with the facility,
which includes a hearing regarding a
petition in Djamel Ameziane v. United
States and the issuance of precautionary
measures in 2002. Quintana noted that the
Commission has continued to monitor the
human rights situation at Guantanamo,
pushed for individualized legal status and
increased safeguards for each detainee,
urged the U.S. to honor non-refoulement
obligations, and demanded the closure of
the detention center. Quintana said that
there have been few concrete measures
taken by the administration of President
Obama to close the facility, which indicates the normalization of the use of
the detention center. In light of this, the
petitioners from CEJIL asked the U.S. to
address whether the government remains
committed to closing Guantanamo.
Testifying on behalf of Physicians
for Human Rights, Kristine Huskey said
that indefinite detention leads to negative
psychological and physical consequences.
Huskey, who works directly with detainees,
said they live in a state of hopelessness
due to a lack of control over their own
fate. This situation, she said, leads to posttraumatic-stress disorder, disassociation,
and other psychological problems, sometimes leading to suicide. Treatment of
these ailments does not work and can
further the abuse, she explained, because
the detainees feel the psychologists are
complicit in causing the suffering.
Ramzi Kassem, a law professor at
the City University of New York School
of Law’s Immigrant & Non-Citizen
Rights Clinic, focused on the situation
of individuals who have been cleared for
release but are forced to stay. Eighty-six
of the 166 detainees at Guantanamo fit
this description, Kassem said. He noted
that the situation disproportionately affects
Yemenis, which he said amounts to collective punishment based on nationality. The
situation of those waiting to be transferred
was complicated by the National Defense
Authorization Act (NDAA), but Omar
Farah of the Center for Constitutional
Rights testified that this legislation has not
completely hindered the ability to release
the detainees, as the Obama administration
has claimed.
The United States responded by stating
that the state supports the IACHR and will
continue to work with the Commission on
detention operations. Michael Williams, a
State Department official, said President
Obama has reiterated his commitment to
closing Guantanamo. Williams said the
detainees are treated humanely in accordance with U.S. law and international
humanitarian law, and that restrictions on
transfers are legislative impediments in the
NDAA that President Obama has spoken
out against. The restrictions on transfers to
Yemen, Williams explained, resulted from
an attempted airline bombing, but he said
that generally Yemenis could be returned
to third-party countries. He noted that
each individual is examined to determine
whether the receiving country can mitigate
the security threat the detainee might pose.
He also said it is important to note that the
U.S. Supreme Court gave the detainees
the right to habeas corpus and that each
detainee has the right to counsel and
to be notified of incriminating evidence.
Williams elaborated on the humane conditions by listing the various facilities available
at Guantanamo to ensure the health of the
detainees.
Commissioner Robinson asked the U.S.
government about measures in place to
close Guantanamo and about shutting the
office to manage such efforts. She also
said that she is not concerned about the
facilities themselves, but about the practices and ethical rules for the personnel
working in them. Commissioner Rodrigo
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Escobar Gil, the Special Rapporteur on
Persons Deprived of Liberty, said that the
whole international community is concerned with the human rights situation at
Guantanamo. He noted that under human
rights and due process standards, indefinite detention beyond a reasonable period
of time becomes arbitrary detention. He
questioned what due process guarantees
apply and whether habeas corpus really
is an effective recourse. Commissioner
Felipe González Morales asked about the
failure of the U.S. government to implement the precautionary measures.
Responding for the petitioners, Kassem
asserted that the military tribunals and
the habeas corpus processes are deeply
flawed and unusual, and specifically noted
an incomplete access to evidence, secret
charges, and the admissibility of hearsay
with the presumption of accuracy of government documents. Farah reiterated that
he did not hear the U.S. address the steps
taken toward closing Guantánamo and that
no prisoner has been released under the
NDAA. Huskey said that the number and
kind of facilities serving the detainees does
not negate the psychological issues caused
by indefinite detention.
Responding for the state, Williams said
the legal framework and status for the
detainees is valid under the Authorization
for Use of Military Force Act (AUMF) and
international humanitarian law. He stated
that under these standards, detainees are
to be released at the cessation of hostilities
or until they are tried for their crimes.
He affirmed the professionalism of the
staff at the facilities and said the U.S.
wishes to both promote national security
and respect justice.
Anna Naimark covered this hearing
Death Penalty in the Americas
According to the Joel Antonio
Hernández, Mexican Ambassador to the
Organization of American States (OAS),
the death penalty is a failure of justice
and a criminal act that does not solve any
problem. Additionally, the representative
of the observer country, France, expressed
that the death penalty means revenge,
not justice.
The Protocol to the American
Convention on Human Rights to Abolish
the Death Penalty, adopted in Asunción on
June 8, 1990, was the last document that
the OAS authored about the death penalty
in the Americas. In the Americas there
are still some countries that recognize the
death penalty in their legislation (United
States, Cuba, Guatemala, and others).
The petitioning governments asked for
the complete abolition of this punishment
through mechanisms that would force these
Member States to respect international law.
Moreover, they asked the Commission
to write a report on the executed.
Alternatively, if abolition is not possible,
the petitioners requested that the numbers
of crimes punishable by the death penalty
be reduced. The petitioners argued that the
death penalty is a priority issue because it
involves one of the most important human
rights, the right to life. Therefore, once
the OAS authors the report, it should be
distributed not only to government actors,
but also to society in general. Finally, the
representative from Argentina explained
the situation in his country. He mentioned
that Argentina’s abolition of the death
penalty occurred in 1994, but that the
Argentine Foreign Ministry is still working
on cases of its nationals sentenced to death
in other countries. One such case is that of
Victor Saldán, an Argentine who has been
on death row in Texas since 1996.
After the participation of the petitioners,
the representative from Amnesty
International congratulated the petitioners’
initiatives. The fight against the death
penalty has to be made through the effort
of the OAS and its members, she said. The
principal issues that Amnesty International
noted were the racially discriminatory
application of the death penalty, and also
the inhumane treatment of those sentenced
to death, including those with mental
disabilities. Amnesty International mentioned the Saldán case and the work of
Centro de Estudios Legales y Sociales,
an Argentine organization that presented
a report about the need to eliminate the
death penalty throughout the Americas.
Commissioner Dinah Shelton suggested
the Commission monitor Canada’s abolition of the death penalty in order to
establish minimum standards. She asked
if there were other mechanisms to abolish
the death penalty besides federal law.
Hernández replied that every case must be
analyzed individually because, for example,
the Mexican Constitution is applied to
every state and if it expresses the abolition
of the death penalty, every state has to
enforce it. In Argentina, the Protocol to the
American Convention on Human Rights
to Abolish the Death Penalty has the same
status as the Constitution, and therefore the
abolition of the death penalty applies to the
entire country.
Commissioner Antoine stated that the
legalistic approach that the petitioners
made may not be the correct one because
it does not enjoy public support, and
it could be counter-productive to pursue
abolition through human rights bodies
instead of a broader political and educational approach. Commissioner Robinson
expressed gratitude for the specific recommendations, and noted that it would have
been more helpful if other representatives
had talked about their perception of the
situation in their home countries. Finally,
Commissioner Orozco asked for more
information about 1) the political approach
and the strategies to eliminate the death
penalty at the international level; 2) how
the Commission can collaborate with the
petitioners to eliminate the death penalty;
and 3) the barriers that the petitioners
found in order to protect the right to
due process.
Claudia Abasto covered this hearing
EL 147° PERÍODO DE SESIONES DE LA COMISIÓN INTERAMERICANA
DE DERECHOS HUMANOS
Derechos Humanos y la
Criminalización del Aborto
en Sudamérica
La criminalización del aborto tiene un
impacto discriminatorio en mujeres con
pocos ingresos y con jóvenes adolescentes,
alegaron los peticionarios en la audiencia
de derechos humanos y criminalización
del aborto en Sudamérica ante la Comisión
Interamericana de Derechos Humanos
(CIDH) el 15 de marzo del 2013.
Los peticionarios presentaron los hallazgos de su estudio sobre los efectos
discriminatorios que la criminalización
del aborto tiene en mujeres que buscan
servicios médicos luego de un aborto
en Brasil, Bolivia, Argentina y Perú. El
estudio indicaba que los proveedores de
salud reportan a sus pacientes a la policía,
quienes a su vez, a menudo detienen a las
pacientes por largos períodos de tiempo,
incluso cuando no fueron acusadas en
última instancia, violando el derecho a
la privacidad y el debido proceso. Estas
violaciones también implican los derechos
a la salud y la privacidad.
Los peticionarios caracterizaron el
aborto inseguro como un problema grave
de salud pública, contribuyendo a las
altas tasas de mortalidad y morbosidad
en mujeres en todos los países estudiados. Ellos señalaron que el aborto es una
necesidad, y que la criminalización del
procedimiento no disuade a las mujeres de
buscar servicios abortivos; es más, fuerza
a las mujeres a buscar servicios médicos
informales e inseguros.
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Los peticionarios señalaron que mientras la actual prosecución de mujeres por
practicarse un aborto es rara, con más
prosecuciones dirigidas en lugar a los
proveedores médicos, estas mujeres continúan a ser victimizadas por el sistema
penal de justicia a través de investigaciones
extensivas, prisión preventiva, y a menudo
con consecuencias al deterioro de la salud
de la mujer.
Los derechos al debido proceso y la presunción de inocencia, así como el derecho
a la auto-determinación encontrados en el
Artículo 8 de la Convención Americana,
según los peticionarios, están implicados
cuando los doctores reportan a sus pacientes ante las autoridades. Mientras Perú es
el único país que tiene un mandato estatutario de los proveedores para reportar a
cualquier paciente en busca de cuidados
post-abortivos, los proveedores en otros
países estudiados usualmente rompen su
deber de confidencialidad con los pacientes, a pesar de que ese reporte no sea obligatorio. En estos casos, no hay consecuencias para los proveedores quienes violan la
confidencialidad de sus pacientes, aunque
el Artículo 11 de la Convención Americana
garantiza el derecho a la privacidad.
Los peticionarios concluyeron su
testimonio, pidiendo a la Comisión la
despenalización del aborto y todas las
restricciones legales relativas a misoprostol y mifepristone (dos de las pastillas
más comunes de venta libre que usan las
mujeres para terminar con su embarazo),
y el establecimiento de protocolos para
el acceso al aborto legal. Los peticionarios también pidieron a la Comisión que
creen normas jurídicas que prohíban a
los profesionales de la salud reportar a
sus pacientes ante las autoridades (solo
en Perú) y que en todos los casos, se
garantice la confidencialidad del paciente
y el derecho de no auto-incriminarse.
Finalmente, los peticionarios solicitaron
que la Comisión implemente políticas para
sensibilizar y entrenar a trabajadores de la
salud, policía y operadores judiciales en
asuntos de aborto.
La Comisionada Antoine reconoció que
el problema no era solo sobre los derechos
de la mujer y a la integridad personal,
sino que también implicaba el derecho a
la salud, así como la falta de proporcionalidad en las respuestas del Estado, ambos
en relación áspera a las multas penales y
el proceso previo al juicio. Como Relatora
de los Derechos de los Afro-descendientes,
ella resaltó el impacto discriminatorio
en las mujeres Afro-brasileñas, y cómo
la desigualdad racial intersecta con los
derechos reproductivos. La Comisionada
Antoine animó a los peticionarios a traerle
más información y señaló que la Comisión
puede ofrecer su ayuda para instar a los
Estados a reconsiderar su penalización del
aborto e implementar las recomendaciones
de los peticionarios.
La Comisionada Ortiz preguntó a los
peticionarios si ellos habían comparado
el aborto en países antes y después de su
penalización. Ella apuntó la idea que la
despenalización del aborto salva vidas, y
que esta información debe ser compartida.
La Comisionada Ortiz pidió cualquier
buena práctica de la ONG que la Comisión
pueda publicitar. Como Relatora de los
derechos de los Niños, ella específicamente preguntó sobre las mejores prácticas
para las adolescentes embarazadas.
La Comisionada Robinson señaló que
incluso en Estados que permiten el aborto
en algunos casos (como por ejemplo,
salud de la mujer, en casos de violación
o incesto), persisten las violaciones de
derechos humanos. La Comisionada
Robinson expresó su interés en las implicaciones del debido proceso en el proceso
de la toma de decisiones y quiso saber si
los que toman las decisiones son médicos
o profesionales judiciales. Ella preguntó si
ha habido cualquier tipo de consecuencia
para los proveedores que rompieron la
confianza de sus pacientes en países fuera
del Perú donde los proveedores no están
obligados a compartir este tipo de información. Finalmente, ella preguntó una
pregunta fronteriza sobre la relación entre
el aborto y el acceso al anticonceptivo
de emergencia, la esterilización y otros
tipos de cuestiones de derechos sexuales y
reproductivos.
Los peticionarios respondieron haciendo énfasis en el impacto dispar en las
mujeres pobres, dado a que las mujeres
con recursos pueden ir a clínicas élites y
practicar sus abortos con seguridad. Ellos
reiteraron que la penalización del aborto
no lo desincentiva, porque el aborto es una
necesidad; lo único que hace es bajar los
estándares de salud y poner a las mujeres
en mayor riesgo. Para las adolescentes, la
mayoría de ellas no tienen la capacidad
legal para acceder a servicios de salud
sin el consentimiento de sus padres, a
pesar de que ellas tienen la capacidad para
consentir a actividad sexual.
aborto solo es legal si implica la salud
de la mujer, pero el Estado no tiene un
protocolo que los médicos deben seguir,
de tal manera que los abortos nunca son
ofrecidos incluso cuando la salud de una
mujer está en peligro porque los médicos
tienen medio de ser perseguidos.
El Human Rights Brief agradece a Karla
Morales, Coordinadora del Programa de
Derechos Humanos de Asuntos del Sur por
su colaboración en la traducción de este
resumen.
Situación de los Derechos Humanos
de las Personas Detenidas en la
Instalación de la Base Naval de
Guantánamo
Desde que Estados Unidos abrió el centro de detención en la Estación Naval de
la Bahía de Guantánamo (“Guantánamo”)
en el 2002, éste ha sido un centro de
controversias de alegaciones a violaciones de derechos humanos. El estatus de
los detenidos quienes supuestamente han
sufrido violaciones durante su detención
en Guantánamo, fue uno de los temas de
la audiencia del 12 de marzo del 2013 ante
la Comisión Interamericana de Derechos
Humanos (CIDH).
De acuerdo con las mejores prácticas, los peticionarios señalaron que en
Argentina, cuando una adolescente llega
queriendo terminar su embarazo, un
proveedor de salud le informa del estatus
legal del aborto, si su caso cae entre las
excepciones de la penalización y, asumiendo
que el proveedor no puede practicar legalmente el aborto por sí mismo, le informa de
las vías seguras e inseguras de hacerse un
auto-aborto. En Uruguay, una mejor información sobre misoprostol ha disminuido la
morbosidad relacionada al aborto.
Francisco Quintana y Charles Abbott
del Centro por la Justicia y el Derecho
Internacional (CEJIL) comenzaron abordando la historia de la Comisión con
la instalación, que incluía una audiencia
de acuerdo con la petición de Djamel
Amenziane v. United States sobre el asunto
de medidas cautelares en el 2002. Quintana
señaló que la Comisión ha continuado
con el monitoreo de la situación de los
derechos humanos en Guantánamo, empujando por estados legales individuales e
incrementando guardias por cada detenido,
exhortó a los Estados Unidos a honrar
las obligaciones de non-refoulement, y
exigió la clausura del centro de detención. Quintana dijo que ha habido pocas
medidas concretas tomadas por la administración del Presidente Obama para cerrar
la instalación, lo que indica la normalidad
del uso del centro de detención. A la luz de
esto, los peticionarios del CEJIL pidieron
a los Estados Unidos a abordar si el
gobierno continúa con su compromiso de
cerrar Guantánamo.
Con respecto a la responsabilidad,
romper la confidencialidad es una ofensa
penal en Argentina, pero los médicos
nunca son perseguidos. En el Perú, el
Testificando en nombre de Physicians
for Human Rights, Kristine Huskey dijo
que la detención indefinida conduce a consecuencias negativas psicológicas y físicas.
53
Huskey, quien ha trabajado directamente
con los detenidos, dijo que ellos viven en
un estado de desesperanza ligado a la falta
de control con el destino de su vida. La
situación, ella dijo, conduce al trastorno
por estrés postraumático, la desasociación,
y otros problemas psicológicos, que
pueden llevar al suicidio. El tratamiento de
estas enfermedades no funciona y puede
aumentar su abuso, ella explicaba, porque
los detenidos sienten que los psicólogos
están en complicidad con su sufrimiento.
Ramzi Kassem, Profesor de derecho de
la Immigrant & Non-Citizen Rights Clinic
de la City University of New York School
of Law, se enfocó en la situación de los
individuos permitidos a ser liberados, pero
que han sido forzados a quedarse. Ochenta
y seis de los 166 detenidos en Guantánamo
entran dentro de la descripción, según
Kassem. Él afirmó que la situación afecta
desproporcionadamente a los yemeníes,
asciéndelo que llega a ser un castigo colectivo basado en la nacionalidad. La situación
de aquellos que esperan ser transferidos se
complicó por el Acto de Autorización de
la Defensa Nacional (NDAA por sus siglas
en inglés), pero Omar Farah del Center for
Constitutional Rights testificó que esta
legislación no impide completamente la
posibilidad de liberar a los detenidos,
como la administración de Obama ha
sostenido.
Estados Unidos respondió afirmando
que el Estado apoya a la CIDH y continuará trabajando con la Comisión en
las operaciones de detención. Michael
Williams, un oficial del Departamento
de Estado, dijo que el Presidente Obama
ha reiterado su compromiso de cerrar
Guantánamo. William dijo que los detenidos son tratados humanamente en concordancia con la ley de los Estados Unidos y
con el Derecho Humanitario Internacional
y que las restricciones en transferencias
son impedimentos legislativos del NDAA,
lo que el Presidente Obama ha condenado. Las restricciones de transferencias
a Yemen, decía Michaels, resultaron de un
atentado aéreo de bombardeo, pero él dijo
que generalmente los yemenís pueden ser
regresados a países terceros. El afirmó que
cada individuo es examinado para determinar si el país acogedor puede mitigar
el trato de seguridad que el detenido debe
poseer. Él también sostuvo que es importante notar que la Corte Suprema de los
Estados Unidos les dio a los detenidos el
derecho al habeas corpus y que cada uno
de ellos tiene el derecho a la defensa y la
prueba. Williams habló de las condiciones
humanas por enumerar varias instalaciones
disponibles en Guantánamo para asegurar
la salud de los detenidos.
La Comisionada Tracy Robinson preguntó al gobierno de los Estados Unidos
sobre las medidas para cerrar Guantánamo
y sobre el cierre de la oficina que maneja
esos esfuerzos. Ella también dijo que no
estaba interesada en las instalaciones en
sí, sino en las prácticas y las reglas éticas
del personal que trabaja con ellas. El
Comisionado Rodrigo Escobar Gil, Relator
especial sobre personas privadas de la libertad, dijo que toda la comunidad internacional está preocupada por la situación de
los derechos humanos en Guantánamo. El
estableció que bajo los derechos humanos
y las reglas del debido proceso, la detención indefinida más allá de un período
de tiempo razonable se convierte en la
detención arbitraria. El cuestionó si las
garantías del debido proceso se aplican, y
si el habeas corpus es un recurso efectivo.
El Comisionado Felipe González Morales
preguntó sobre el fracaso del gobierno
de los Estados Unidos para implementar
medidas cautelares.
Respondiendo a los peticionarios,
Kassem afirmó que los tribunales militares y los procesos de habeas corpus son
profundamente defectuosos e inusuales, y
específicamente resaltó el acceso incompleto a la evidencia, los cargos secretos,
y la admisibilidad del testimonio de oídas
con la presunción de exactitud de los documentos del gobierno. Farah reiteró que no
escuchó a los Estados Unidos a abordar
el tema de los pasos tomados para cerrar
Guantánamo, y que no hay prisioneros que
han sido liberados bajo el NDAA. Huskey
dijo que el número y el tipo de instalaciones que sirven a los detenidos no niegan
los problemas psicológicos causados por
la detención indefinida.
Respondiendo por el Estado, Williams
dijo que bajo el marco legal el estatus de
los detenidos es válido bajo el Acto de
Autorización del Uso de Fuerzas Armadas
(AUMF por sus siglas en inglés) y el
Derecho Humanitario Internacional. Él
estableció que bajo estos tres estándares,
los detenidos serán liberados con la
cesación de hostilidades o cuando ellos
sean juzgados por sus crímenes. Él afirmó
el profesionalismo del equipo en las instalaciones y dijo que Estados Unidos desea
54
promover la seguridad nacional y respetar
la justicia.
resumen.
La Pena de Muerte en las Américas
De acuerdo con Joel Antonio Hernández,
Embajador Mexicano ante la Organización
de los Estados Americanos (OEA), la pena
de muerte es un fracaso de la justicia y un
acto criminal que no resuelve ningún problema. Adicionalmente, el representante del
estado observador, Francia, expresó que la
pena de muerte significa la venganza, no
la justicia.
El Protocolo de la Convención
Americana sobre Derechos Humanos
para la Abolición de la Pena de Muerte,
adoptado en Asunción el 8 de junio del
1990, fue el último documento que la
OEA elaboró sobre la pena de muerte en
las Américas. En las Américas, hay algunos países que aún reconocen la pena de
muerte en su legislación (Estados Unidos,
Cuba, Guatemala y otros). Los gobiernos
peticionarios pidieron la completa abolición de este castigo a través de mecanismos que pudieran forzar a estos Estados
Miembros a respetar la ley internacional.
Por otra parte, ellos pidieron a la
Comisión que elabore un informe de lo
ejecutado. Alternativamente, si la abolición
no es posible, los peticionarios solicitaron
que los números de crímenes punibles por
la pena de muerte sean reducidos. Los
peticionarios argumentaron que la pena de
muerte es un problema prioritaria porque
envuelve uno de los más importantes
derechos humanos, el derecho a la vida.
Por lo tanto, una vez que la OEA elabore
el informe, se debería distribuir no solo a
los gobiernos actores, sino a la sociedad
en general.
Finalmente, el representante de
Argentina explicó la situación de su país.
Él mencionó que la abolición argentina de
la pena de muerte ocurrió en 1994, pero
que el Ministerio de Relaciones Exteriores
aún sigue trabajando en diferentes casos de
sus compatriotas sentenciados a la pena de
muerte en otros países. Uno de los casos
es el de Víctor Saldán, un argentino quien
ha sido condenado a la muerte en Texas
desde 1996.
Después de la participación de los
peticionarios, el representante de Amnistía
Internacional felicitó la iniciativa de los
peticionarios. La lucha contra la pena
de muerte debe ser hecha a través del
esfuerzo de la OEA y de sus miembros,
dijo. Los problemas principales notados
por Amnistía Internacional eran la aplicación racialmente discriminatoria de la
pena de muerte, y también el tratamiento
inhumano de los sentenciados a muerte,
incluyendo aquellos con enfermedades
mentales. Amnistía Internacional mencionó el caso de Saldán y el trabajo del
Centro de Estudios Legales y Sociales, y
la organización argentina que presentó el
informe sobre la necesidad de eliminar la
pena de muerte en todas las Américas.
La Comisionada Dinah Shelton sugirió
que la Comisión siga de cerca la abolición
canadiense de la pena de muerte, a fin de
establecer los estándares mínimos. Ella
preguntó si había otros mecanismos para
abolir la pena de muerte además de la ley
federal. Hernández respondió que cada
caso debe ser analizado individualmente
porque, por ejemplo, la Constitución mexicana es aplicada en cada estado y si ésta
expresa la abolición de la pena de muerte,
cada estado tiene que cumplirla. En
Argentina, el Protocolo de la Convención
sobre los Derechos Humanos relativo a
la Abolición de la Pena de Muerte tiene
el mismo estatus que la Constitución, y
que por lo tanto la abolición de la pena de
muerte se aplica en todo el país.
La Comisionada Antoine estableció
que el enfoque legislativo de los peticionarios puede no ser el correcto porque
no gana la opinión pública, y podría ser
contraproducente perseguir la abolición a
través de organismos de derechos humanos
55
en lugar de enfoques más amplios en los
campos de políticas públicas y educación.
La Comisionada Robinson expresó su
gratitud por las recomendaciones específicas y notó que podría haber sido más
útil si los otros representantes hubieran
hablado de su percepción de la situación
en sus países. Finalmente, el Comisionado
Orozco pidió más información sobre 1)
el enfoque político y las estrategias para
eliminar la pena de muerte al nivel internacional; 2) como la Comisión puede colaborar con los peticionarios para eliminar la
pena de muerte; y 3) las barreras que los
peticionarios encontraron para proteger el
derecho al debido proceso.
resumen.
REgions
Americas
Fighting Terror with Terror:
Chile’s Targeting of the Mapuche
An arson attack on a home in Chile’s
southern Araucanía region, allegedly
carried out by members of the Mapuche
tribe, has led to the reimplementation
of a tough anti-terrorism law. After meeting with his cabinet ministers following
the attack, which took the lives of the
homeowners, Chilean President Sebastián
Piñera stated that the anti-terrorism law
is the country’s best option to combat
the attacks of the indigenous population on local landowners. The aim of the
law is to impose harsh penalties on domestic terrorists, but leaders of the Mapuche
tribe claim that the government is using
the law to target their population in a
discriminatory fashion.
The tension between the Mapuche and
the Chilean government has continued to
rise over the dispossession of land by state
officials to expand the forestry industry,
hydroelectric dams, and other corporations. The Mapuche tribe bases its claim
to the territory on ancestral connections
to the land. The Piñera administration has
refused to expropriate land to the indigenous population, and some members of
the tribe have resorted to targeting forestry
companies through arson attacks, land
occupations, seizures of timber stands, and
roadblocks. In response to these tactics,
the Chilean government imposed heavy
punishments on the Mapuche population
pursuant to the anti-terrorism law.
Law 18.314 was enacted in 1984 by
the Pinochet regime to suppress domestic
acts of terrorism and violent acts of armed
political groups. The law defines illegal
land occupation and attacks on equipment
or personnel of multinational corporations
as acts of terrorism that can be adjudicated
in civilian and military trials. It also allows
the state to rely on unidentified prosecution witnesses and indefinite detention for
suspected terrorists, along with the power to
tap telephones and intercept correspondence
such as e-mails and other communications.
The anti-terrorism law has been invoked
on numerous occasions as a result of
acts of arson in southern Chile, including
incidents in 2002 and 2010.
Chile that military jurisdiction over civilian
cases was inadequate to provide the basic
right to a fair trial.
The use of the anti-terrorism law has
faced scrutiny for a number of reasons
by the Mapuche tribe and international
human rights groups, such as Minority
Rights Group International and Human
Rights Watch. The due process rights
of Mapuche detainees have been threatened by the measures allowed under the
anti-terrorism law. Pre-trial detention is
typically longer for a suspect under the
anti-terrorism law than those charged with
other crimes in Chile, and sometimes
spans up until the beginning of trial. By
allowing courts to hold Mapuche suspects
in custody until trial under Law 18.314,
Chile is violating Article 9, Section 3 of the
United Nations International Covenant on
Civil and Political Rights (ICCPR), which
states, “It shall not be the general rule that
persons awaiting trial shall be detained
in custody.” In Giménez v. Argentina, the
Inter-American Commission on Human
Rights (IACHR) noted that holding
a defendant in indefinite or prolonged
pre-trial detention is a severe measure that
should only be employed as punishment
to those convicted of a crime or to repeat
offenders.
The Mapuche have continued to be
inhibited by the Chilean state’s lack of
recognition for their ancestral lands. As
Mapuche and other indigenous communities take increasingly desperate measures
to reclaim or maintain control over their
territory, the Chilean government has continued to use the anti-terrorism law as
a way to quell social movements in the
Araucanía region. While the law aims to
crack down on violence against landowners in the region, Chile’s implementation
of its anti-terrorism law has led to multiple
violations of due process and human rights
abuses against the Mapuche people. The
Chilean government must address these
issues if it plans to reach a successful
agreement over the territorial disputes.
The ability to use unidentified witnesses
by the prosecution is a violation of Article
14(3)(e) of the ICCPR which guarantees the
right of defendants to confront witnesses.
Under the anti-terrorism law, the prosecution
is allowed to keep the identity of its witnesses secret. The police tactics used in
implementing the anti-terrorism law gave
rise to many claims against the police
force, but because the military tribunals
maintain jurisdiction over all cases dealing
with on-duty incidents, the Mapuche argue
they have little chance of recovering damages. The IACHR has also rejected military
tribunals as a way of trying civilians in its
1998 Annual Report. The use of military
tribunals in these cases is a violation of
the Fair Trial Guarantees of Article 14 that
Chile adhered to in its ratification of the
ICCPR. Chile is also acting contrary to the
Inter-American Court of Human Rights’
determination in Palamara-Iribarne v.
56
Match Made in Rubble? Iran and
Argentina Seek the Truth in the AMIA
Bombing
Argentine and Iranian officials recently
reached an agreement that will establish
an international committee aimed at investigating the long-standing dispute over the
deadly terrorist attack on the Asociación
Mutual Israelita Argentina (Argentine
Israeli Mutual Association, AMIA) building. The July 18, 1994, attack left 85
people dead and hundreds more injured,
constituting the deadliest bombing in
Argentine history. The violence was aimed
at members of the country’s Jewish population, one of the largest in Latin America
with nearly 200,000 Jewish citizens, and
demands for justice were swift. Crippling
inefficiency and allegations of cover-ups
have hampered the investigation of the
attack and complicated the identification
of suspects.
As the search for culprits continued
into 2006, Argentine prosecutor Alberto
Nisman formally charged the Lebanonbased Islamic militant group Hezbollah
as the organization responsible for the
attack and implicated the Iranian government as assisting in carrying out the
attack. This came after Argentine intelligence and the U.S. Federal Bureau of
Investigation identified Ibrahim Hussein
Berro as the suicide bomber in the attack.
His connections with Hezbollah, a Shi’ite
political and militant organization, were
also uncovered during the investigation.
Although the prosecutor argued that Iran’s
motive in supporting the attack was based
on Argentina’s suspension of transferring technological information regarding
nuclear material, Iran continuously denies
any involvement in the AMIA bombing.
Argentina also views the truth commission as a way to ensure that individual
rights are properly protected. By moving
toward a new investigation, Argentina
follows the four steps that Special
Rapporteur Méndez highlights by seeking
that justice is achieved for the victims,
finding and disseminating the truth once
the commission completes its work,
and compensating the victims through
monetary and non-monetary means.
The Argentine government recently
approved a memorandum of understanding
with Iran to establish a truth commission for the AMIA bombing. President
Cristina Kirchner announced that the two
governments would establish an international commission—with no Iranian or
Argentine nationals as members—that will
recommend a way to proceed with the
investigation in Argentina as well as allow
Argentine officials to investigate in Iran.
AMIA and critics of the memorandum
argue that Argentine judges can already
travel to Iran to interview the suspects
without an agreement. Jewish groups
also argue that it is unconstitutional for
President Kirchner to be involved in a
judicial matter. Religious and social leaders of the Argentine Jewish community
have criticized the idea of allowing a truth
commission created by Iran, which they
suspect played a major role in the bombing, to develop recommendations for the
domestic legal framework to follow. Critics
note that allowing Iran to establish a truth
commission undermines Argentine jurisprudence if it finds that those charged with
the crime are not required to be questioned
or investigated by the international judges
selected by the memorandum.
President of the Argentine Foreign
Relations Committee Guillermo Carmona
noted that the memorandum is the only way
for Argentine legal officials to question
Iranians such as Gen Vahidi, the current
defense minister. The truth commission
aims to reexamine evidence from the
bombing to develop a due process model
for the accused in Iran, while also allowing Argentine investigators into Tehran
to conduct interrogations. The Argentine
government has continually experienced
difficulties in extraditing Iranian suspects
with Interpol warrants for their alleged
involvement in the bombing.
The creation of the truth commission
follows an emerging norm in the international community of prosecuting massive
and systematic human rights violations.
As noted by UN Special Rapporteur on
Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment Juan
E. Méndez, states have an obligation to
respond to crimes against humanity, such
as the bombing in Argentina. These obligations include investigating, prosecuting,
and punishing perpetrators; disclosing to
victims, their families and societies all
information about the events; offering victims adequate reparations; and separating
the known perpetrators from positions
of authority. Argentina’s push for collaboration adheres to its responsibility of
diligently meeting these four requirements
of accountability.
President Kirchner has argued that
the agreement is the only way to gain
needed access to Iranian officials. She has
some support from groups like Amnesty
International Argentina, which hailed the
agreement as a way to move forward
toward justice and reparations. However,
members of the political opposition have
asserted that the Iranian-created commission
will function as a way to grant impunity
to Iranian officials.
By attempting to work with Iran,
Argentina seeks to meet its obligations of
means and not results. Special Rapporteur
Méndez explained that these obligations
are subject to conditions of legitimacy in
their performance, so even if the officials
who are investigated are acquitted, as long
as the judicial process was committed in
good faith, then Argentine officials have
met their obligation. This justice must
coincide with not only the truth being
presented to victims, but also effective
measures to prosecute those responsible.
Argentina’s shift toward the creation of an
instrument of accountability moves them
away from a “forgive and forget” mindset
that has resulted in amnesty for violators of
57
human rights that were found responsible
for atrocities. The effectiveness of the truth
commission will ultimately depend not
only on its ability to find the truth, but to
also use it to find justice.
Ernesto Alvarado, a J.D. candidate
at the American University Washington
College of Law, is a staff writer for the
Human Rights Brief.
Abuse in Guatemalan Psychiatric
Hospital May Amount to Torture
Psychiatric patients are often considered
among the most vulnerable populations,
largely as a result of a psychiatric patient’s
powerlessness once placed under the control of another person. This vulnerability
can be illustrated through a recent investigation of a Guatemalan psychiatric facility
that produced alarming results. Human
rights groups—including Disability Rights
International—conducted a month-long
study of psychiatric hospital conditions
across Latin America in November 2012.
Conclusions indicated that, of a dozen
hospitals examined, the Federico Mora
Hospital in Guatemala City exhibited the
most deplorable conditions. The Federico
Mora Hospital is the only national, public
psychiatric hospital in Guatemala. The
investigation revealed incidents of severe
neglect, abuse, and outright denial of medical treatment for many patients. Moreover,
approximately 300 children were held in
solitary confinement, a practice the international community condemns, especially
when used for young children. Patients also
reported incidents of sexual and physical
abuse, identifying that the perpetrators
include hospital staff and inmates from an
adjacent prison. Although some hospital staff
members are aware of the abuse committed
against patients, the perpetuated climate of
fear has resulted in unreported crimes that
inevitably encourage further abuse.
The Guatemalan government ratified
the UN Convention on the Rights of Persons
with Disabilities (CRPD) in 2009. Article
15 of the CRPD provides that persons with
disabilities shall not be subjected to torture
or cruel, inhuman, or degrading treatment
or punishment. Furthermore, Article 16
states that persons with disabilities shall
be free from exploitation, violence, and
abuse. As a State Party to the CRPD,
the Guatemalan government’s adherence
to both of these provisions is suspect,
especially in light of the reported grave
conditions at Federico Mora hospital.
The Guatemalan government has
also ratified the UN Convention Against
Torture (CAT). The treaty enforcement
body of the CAT, the UN Committee
Against Torture, has established that “each
State party should prohibit, prevent and
redress torture and ill-treatment in all
contexts of custody or control, for example,
in prisons, hospitals, schools, [and] institutions that engage in the care of children,
the aged, the mentally ill or disabled.” The
obligation to prevent torture extends to doctors, health-care professionals, and social
workers, including those working in private
hospitals, detention centers, and other institutions. UN Special Rapporteur on Torture
and Other Cruel, Inhuman and Degrading
Treatment or Punishment Juan E. Méndez,
concluded in a recent report on abuses
in health-care settings that “[m]edical
care that causes severe suffering for no
justifiable reason can be considered cruel,
inhuman or degrading treatment or punishment, and if there is State involvement and
specific intent, it is torture.” Furthermore,
the Special Rapporteur determined that
prolonged seclusion may constitute torture
and ill-treatment.
In response to the allegations of rampant
human rights violations in Federico Mora
Hospital, the Inter-American Commission
on Human Rights (IACHR, Commission)
requested precautionary measures for the
patients of the Federico Mora hospital in
November 2009. The Commission urged
the Guatemalan government to take “[i]
mmediate preventive measures aimed at
protecting all patients, particularly women
and children, from physical, psychological
and sexual violence by other inmates,
guards and hospital staff.” Further, the
Commission called on the government
to relocate patients to community-based
facilities in hopes that such facilities will
respect disabled persons’ right to physical
and mental integrity. Community-based
alternatives also prevent segregation and
exclusion from society, decreasing the
likelihood of the vulnerability experienced
in psychiatric hospitals like Federico Mora.
Dr. Miguel Alejandro De León, Federico
Mora’s Head of Forensic Psychiatry,
acknowledged some of the hospital’s problems, yet denied the extensive findings of
the human rights groups. According to Dr.
De León, a proposed solution is to create
a separate facility for patients who have
been criminally charged and who allegedly
commit most of the abuses. However,
such a solution inadequately addresses
the deplorable conditions and practices
employed by hospital staff.
As a State Party to both the CRPD and
the CAT, the Guatemalan government is
legally obligated to ensure the mental and
physical integrity of all its citizens, including the patients of Federico Mora Hospital.
The Commission has requested that the
government take several immediate steps
to address the situation, including providing appropriate medical care, adopting
measures to prevent abuse against patients,
and separating children from adults. A
failure to address known abuse and neglect
may be further evidence of abuse that
amounts to torture, thus placing the government at even greater risk of falling
short of its international obligations.
Keystone XL Pipeline Poses
Significant Threat to Health of
Already Vulnerable Communities
The proposed TransCanada Keystone
XL Pipeline risks endangering U.S. fresh
water sources and the public health of
surrounding communities due to probable
“dirty” oil spills and the environmental
impacts of transporting oil that produces
three to four more times greenhouse gas
emissions than conventional oil. These
adverse consequences will reportedly
disproportionately affect the health and
safety of minority and low-income communities, including a predominately black
and Latino neighborhood in Port Arthur,
Texas. The pipeline will transport some
of the dirtiest oil, linking tar sands oil of
western Canada to refineries and ports
in Texas along the Gulf Coast. Tar sands
oil is highly acidic and corrosive and
is considered the most toxic fossil fuel
on the planet.
Indigenous people living in Fort
Chipewyan in Northern Alberta, Canada,
where tar sands oil is extracted, report the
oil is linked to staggering hikes in cancer
rates as a result of living downstream
from tar sands production. In response
to ongoing serious health concerns, Cora
Voyageur, a sociology professor from the
University of Calgary, recently launched
an independent study to assess the health
effects of these oil sands on nearby
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communities, including other health issues
like autism.
The proposed Keystone XL Pipeline
will cross key sources of drinking and
agricultural water, including the Ogallala
Aquifer that supplies fresh water for
two million people in eight U.S. states.
Environmental activists warn that the
pipeline will pose a threat to the aquifer,
which is considered one of the world’s
largest underground sources of fresh water.
Due to the close proximity of the pipeline
with some parts of the aquifer, coupled
with the high risks of oil spills, many are
concerned about the likelihood of water
contamination.
TransCanada’s first tar sands pipeline,
Keystone I, commenced operations in 2010
and experienced fourteen leaks within its
first year. Shortly thereafter, the U.S. government issued a Corrective Action Order
to temporarily shut down pipeline operations, finding that “the continued operation
of the pipeline without corrective measures would be hazardous to life, property
and the environment.” Although operations
restarted, the pipeline has repeatedly been
shut down due to the frequency of oil
spills. Despite TransCanada’s projections
of only five spills over a fifty-year span, as
of October 2012, at least thirty-five spills
have occurred. Thus, initial projections
were grossly underestimated, a fact which
increases concerns as the U.S. government
considers approval of the XL pipeline.
The proposed pipeline is currently
pending a federal permit from the U.S.
Department of State (DOS). In March 2013,
the DOS released a draft Supplemental
Environmental Impact Statement for the
proposed pipeline that, according to the
Sierra Club, understates the adverse risks
to Americans’ water and air, as well as
the human health of nearby communities.
Rather, the report focuses largely on prospective job creation and American energy
independence, minimizing potential
adverse impacts the pipeline will have on
the climate or the health of U.S. residents.
The International Convention on
the Elimination of All Forms of Racial
Discrimination (ICERD) provides in
Article 5(d)(iv) that a State Party must
guarantee the right of everyone, without
distinction as to race, color, or national or
ethnic origin, to equal enjoyment to the
right to public health. Both Canada and
the United States have ratified the ICERD,
thereby obligating the countries to protect
their citizens from significant public
health risks. Article 25(1) of the Universal
Declaration of Human Rights (UDHR)
also provides that “everyone has the right
to a standard of living adequate for the
health and well-being of himself and his
family.” Although the UDHR initially was
not viewed as a legally binding document,
it has gained an authoritative force encompassing international human rights norms.
Moreover, in 2010, a resolution of the UN
Human Rights Council (HRC) recognized
the right to water and sanitation as legally
binding for all Member States.
Despite growing concerns about public health and safety, coupled with the
poor track record of TransCanada’s first
tar sands pipeline, the U.S. government
continues to consider approving the
pipeline. In light of the various negative
impacts from construction, potential oil
spills, climate change, and health risks,
the government is legally obligated to
ensure that all persons have access to clean
and safe water and do not face adverse
health conditions as a result of the project.
Approval of the Keystone XL Project will
likely jeopardize both the United States
and Canada’s compliance with ICERD and
the HRC’s resolution, posing a significant
threat to some of America’s already vulnerable communities. Health risks of nearby
low-income neighborhoods heighten concerns about the project’s disproportionate
effect on minorities. Moreover, access
to safe drinking water is further endangered due to the environmental impacts of
transporting dirty oil.
Diana Damschroder, a J.D. candidate
Human Rights Brief.
Asia and Oceania
Central Asia: Balancing National
Security with Freedom of Religion
Since September 11, 2001 all five
Central Asian countries have enacted
legislation restricting religious freedoms
in an attempt to curb the rise of radical
Islamic terrorism. The new laws have had
a damaging effect on the free practice
of religion. In 2004, the UN Special
Rapporteur on freedom of religion or
belief, Asma Jahangir, stated that freedom
of religion “is a fundamental right that
is not susceptible to derogation, even in
time of emergency.” Despite a legitimate
interest in promoting national security,
Kazakhstan, Kyrgyzstan, Tajikistan,
Turkmenistan, and Uzbekistan also maintain a set of obligations to protect this basic
right as States Parties to the International
Covenant on Civil and Political Rights
(ICCPR).
The threat of terrorism in Central Asia
is well-founded. In 1999 and 2004 a series
of bombings killed dozens in the Uzbek
capital Tashkent. Immediately after the
September 11 attacks in the United States,
Tajikistan initiated a ban on certain groups,
including Hizbut-Tahir, al-Qaeda, Bay-at,
the Islamic Movement of Uzbekistan, and
Harakati Tablighot. In 2006, Kyrgyzstan
labeled extremist group Hizbut-Tahrir
as the largest religious challenge in the
country. Kazakhstan has eliminated 42
extremist groups and prevented 35 terrorist
attacks since 2010 alone. However, many
of the new Religion Laws have broad
applications that affect religious activities
with no relation to terrorism.
Kyrgyzstan’s Administrative Code and
Turkmenistan’s Religious Organization
Law require any religious organization
operating within the state to register with
the government. Kyrgyzstan also bans
prayers and religious rituals not approved
by the state. Kazakhstan, Tajikistan, and
Uzbekistan have made creating, promoting, and distributing religious materials
an offense subject to criminal penalties
or high fines. The Administrative Code
of Kyrgyzstan and the Criminal Code of
Tajikistan make it an offense to participate
in a religious organization that contradicts
the aims of the state. And Tajikistan’s new
Religion Law requires children to receive
all religious education from state-licensed
institutions. As previously reported in the
Human Rights Brief, the Tajik government
also enacted a Parental Responsibility Law
that requires parents to prevent children
from participating in religious activities
that are not sanctioned by the state.
The effects of these laws have been
present throughout Central Asia. According
to a Human Rights Watch report, hundreds
of religious organizations were forced to
close in 2012 after failing to receive official
registration from the Kazakh government.
In the Kostanai Region of Kazakhstan,
which has a population of 900,300, only
two bookshops are allowed to sell religious
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materials. The report also indicated that
during the same timeframe, over 200
people in Uzbekistan were arrested or
convicted for religious extremism. At the
beginning of the year, 1,823 Tajiks began
their studies in foreign religious institutions; 1,621 were required to return to
Tajikistan. The government of Kyrgyzstan
is currently holding 83 religious extremists in detention facilities, amid fears that
prisons have become breeding grounds for
terror recruitment.
Because every country in Central Asia
is a party to the ICCPR, each has an obligation to promote the freedom of thought,
conscience, and religion as outlined in
Article 18. The rights include the “freedom
to have or to adopt a religion or belief of
his choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion
or belief in worship, observance, practice
and teaching.” The Central Asian countries claim they have not impinged upon
these rights because Article 18 also allows
for “such limitations as are prescribed
by law and are necessary to protect
public safety, order, health, or morals or
the fundamental rights and freedoms
of others.” The General Assembly has
affirmed that the Central Asian countries
have read this exception for national security too broadly. In Resolution 66/168, the
General Assembly expressed concern with
the growing number of restrictive laws and
intolerance motivated by Islamophobia.
The Special Rapporteur on the freedom of
religion or belief then affirmed that “states
should avoid equating certain religions
with terrorism as this may have adverse
consequences on the right to freedom
of religion or belief of all members of
the concerned religious communities
or communities of belief.” Despite the
sentiments by the General Assembly and
Special Rapporteur, the Central Asian laws
restricting the practice of religion have not
been amended or repealed.
While the Central Asian countries may
believe that the restrictions on religion
are justified in the face of rising threats
of terrorism, the ICCPR obliges member
states to respect religion as a fundamental
right. If the application of the Religion
Laws continues to create a substantial
burden on those not associated with terrorist activities, the United Nations, although
it has not articulated further steps, could
begin to place more pressure on the Central
Asian governments.
Alyssa Antoniskis, a J.D. candidate
Human Rights Brief.
South Korean Law May Be
Infringing Upon the Right
to Freedom of Expression
on the Internet
South Korea, frequently considered
a regional leader in human rights and
democracy, and a State Party to the
International Covenant on Civil and
Political Rights (ICCPR), has come under
recent UN scrutiny for its treatment of
freedom of expression on the Internet.
The ICCPR enumerates the universal
right to freedom of expression in Article
19, which protects the ability to “receive
and impart information and ideas of all
kinds” and limits this only with regard to
protection of the rights of other individuals, national security, public order, public
health, or morals. Similarly, the South
Korean Constitution provides the right to
freedom of speech, press, assembly, and
association, but it limits these protections
to the extent that they neither interfere
with “honor or rights of other persons
nor undermine public morals or social
ethics.” However, reports indicate that this
constitutional exception has been exploited
to regulate discourse on the Internet.
In 2007, in an effort to allay mounting
concerns over malicious and defamatory
posts online, the government of South
Korea instituted a real name identification
system, which forced websites with the
highest viewership to require all posters
of online content to use their real name
and risk prosecution. The South Korean
Constitutional Court (Court) overturned
the law in 2012.
Reports from watchdog groups defending media rights indicate that South
Koreans continue to face pressure on their
exercise of freedom of expression, even
after the Court struck down the real name
system. In 2008, after protests erupted
when the government ended a five-year
ban on U.S. beef imports, the government responded by passing much broader
legislation than the real name law: the
Comprehensive Measures for Information
Protection on the Internet. The law limits
defamation, obscenity, and broadly defined
threats to national security, and it forces
website operators to remove any content if
a third party claims it has been defamed,
with sanctions for operators who do not
immediately comply. The government also
established the Korea Communications
Standards Commission (KCSC) to help
pursue these ends; the organization is
empowered to monitor content on the
Web, issue recommendations to remove
defamatory content or content violative of
public morals that may lead to fines in the
case of noncompliance. Criticism of the
KCSC is often focused on its lack of transparency, broad-reaching powers, and the
lack of reviewability. Furthermore, censored
website operators or posters are generally not
given the opportunity to defend their content.
There are some indications that the measures are defended under the exceptions
for government regulation in the national
interest in both the Constitution and the
ICCPR, as South Korea seeks to ensure
public morality and social ethics.
The exceptions for national interest
may not be broad enough to encompass
South Korea’s regulation of expression. In
the Constitutional Court opinion that overturned the real name identification system,
the Court held that the law violated the
South Korean Constitution, specifically
with regard to citizens’ freedom of expression. The Court ruled that such restrictions
are unjustifiable unless supported by clear
public interests, applying constitutional
principles that echo obligations under the
ICCPR. The UN Human Rights Council
(UNHRC) clarified the ICCPR’s freedom of expression provisions in General
Comment 10, which provided that the
protection is not limited in regard to specific media—all media is protected. The
UNHRC recently reaffirmed the importance of free expression on the Internet,
citing it as a force for development and
an integral, protected component of the
already enumerated freedom of expression. The UNHRC further emphasized that
all rights that are protected offline should
be protected online.
Though the Constitutional Court struck
down the real name identification law,
reports indicate that South Korea may
no longer be the beacon of free press in
Asia that it was once considered. The
Comprehensive Measures for Information
Protection on the Internet law, coupled
with the KCSC, continue to burden free
expression. The UN Special Rapporteur
60
for Freedom of Expression, Frank La Rue,
warned last year that defamation suits
are being used to censor expression that
informs the public interest. La Rue pointed
out the structural burden on freedom of
expression caused by these laws. To maintain its reputation for protecting human
rights, South Korea could go far by heeding the advice of La Rue and demonstrating commitment to freedom of expression
on the Internet.
Mongolia Seeks to Capitalize
on Potential for Poverty
Reduction Through its Human
Development Fund
When Mongolia transitioned from a
centrally planned economy to a free market
economy in the early 1990s, many of
the country’s poorest were left without
access to essential services, but the state
is making a renewed effort to alleviate
that disparity. As the state adapted to its
new economic structure, the discovery
of extensive mineral resources facilitated
privatization and growth, and though much
of the population benefited, many did not.
Estimates place the value of Mongolia’s
untapped resources as high as one trillion
U.S. dollars, and the per capita gross
domestic product tripled from 2004 to
2010, but concern remains over whether
these resources will benefit the poor, who
make up roughly 35 percent of the overall
population. Furthermore, watchdog groups
like Freedom House have brought attention
to corruption and lack of transparency
in the awarding of lucrative mineralextraction contracts to foreign enterprises,
which often limits the domestic impact of
national resource wealth. To allay these
fears, Mongolia’s parliament passed laws
in 2008 aimed at wealth distribution. These
laws, the National Development Strategy
and the Human Development Fund
(HDF), purported to make citizens eligible
for access to the nation’s vast mineral
wealth. The planned scope of HDF was
immense; it was hoped that the fund would
provide financial resources to pay for
social services including pensions, health
care, housing, and education, as well as
provide cash payouts to citizens. Though
data to quantify the early impact of the
HDF is not yet readily available, distribution of funds recently became entangled in
Mongolia’s electoral politicking.
Despite concerns over the implementation of the HDF, the program has potential
to have tremendous impact on Mongolia’s
efforts to comply with its obligations under
the International Covenant on Economic,
Social, and Cultural Rights (ICESCR),
to which Mongolia is a State Party. The
program would align the state’s goals with
objectives of the ICESCR insofar as the
HDF would expand citizens’ access to
national wealth and facilitate the protection of several ICESCR enumerated rights.
The ICESCR obliges States Parties to
recognize the rights to work (Article
6), social security (Article 9), adequate
standards of living and freedom from
hunger (Article 11), and the highest attainable standards of health and accessible
healthcare (Article 12).
Mongolia’s efforts to achieve the
Millennium Development Goals (MDGs)
reflect the national need to address issues
of poverty and poor health and education
standards. The MDGs specifically focus
on eradication of poverty and hunger,
universalization of primary education,
gender equality and participation, and
several health-care-based initiatives. The
report on implementation of the MDGs in
Mongolia indicates a need to focus social
services for the poorest and the historically
marginalized. This imperative is echoed by
Magdalena Sepúlveda Carmona, the UN
Special Rapporteur on extreme poverty and
human rights, who asserted: “Mongolia
has established a robust legal framework,
recognizing that everyone must enjoy the
rights to education, health, housing, food,
etc. However, the laws do not necessarily
translate into the everyday reality for many
Mongolians.”
The government has plans to go beyond
the HDF: draft versions of The Package
Law on Social Welfare and The Mongolian
Law on Employment Promotion were
recently submitted to the country’s parliament. Each of the laws targets the most
vulnerable groups and the poorest in
an effort to extend the availability of
social security programs and increase job
creation. General Comment No. 18 to
ICESCR, issued by the Committee on
Economic, Social and Cultural Rights,
explains that the right to work under
Article 6 encompasses state programs
supporting the availability of employment,
the accessibility of the labor market to all,
and the acceptability and quality of that
employment.
It is unclear whether Mongolia’s
efforts will be effective to meet national
goals that align with the ICESCR and the
MDGs. The government’s comprehensive
attack on poverty is still young, but the
apparent intent to distribute wealth and
ensure the provision of social programming could go far in aiding Mongolia’s
poor. Haruhiko Kuroda, the President of
the Asian Development Bank pointed to
the proper management of the country’s
mineral resources as integral to the country’s successful development, hinging this
success on good governance and a policy
of economic inclusion that trickles down
to the poorest and sees benefits broadly
distributed. Though Mongolia’s poverty
rate continues to be high, commenters
seem optimistic that, properly managed,
Mongolia’s mineral wealth has the ability
to elevate the country’s most need-stricken.
Gabriel Auteri, a J.D. candidate at the
American University Washington College
of Law, is a staff writer for the Human
Rights Brief.
Anti-Acid Violence Legislation
in Pakistan not Mitigating
Growing Occurrence of Acid
Attacks on Women
Although recent legislation aims to
reduce acid violence in Pakistan, acid
attacks are on the rise. Acid violence—the
throwing of corrosive acid on a person’s
face or body—is an intentional act used as
a form of violence against women, often
in Pakistan, but it is also prevalent in other
South Asian countries. The acid causes
extreme damage to flesh and can even
reach and harm the bone, permanently
disfiguring victims of the attacks or even
killing them. Since many cases of acid
attacks go unreported, a true estimate
of such attacks is difficult to determine.
However, Pakistani non-governmental
organizations (NGOs) estimate the number
to be 150-200 cases per year. In many situations, husbands, in-laws, or other family
members throw acid on the (generally)
female victim for revenge or because of a
perceived wrongdoing on her part. Other
reasons for targeting a woman are her
refusal of a marriage proposal, rejection
of a sexual advance, or for a dispute
involving dowry or property. Acid attacks
are an inexpensive method of violence,
since bottles of corrosive acid are widely
available for about twenty rupees, or less
than fifty U.S. cents. Despite the passage
61
of Pakistan’s Acid Control and Acid Crime
Prevention Act, which brings the country
in line with its international obligations to
curb violence toward women, the Act has
not produced desired conviction rates.
No explicit mention of acid attacks has
been made in international law, but the
United Nations (UN) Declaration on the
Elimination of Violence Against Women
(Declaration) and the UN Convention on the
Elimination of all forms of Discrimination
Against Women (CEDAW), apply to
acid attack cases and domestic violence.
In a 2003 Resolution, the UN General
Assembly further reaffirmed “the call for
the elimination of violence against women
and girls, especially all forms of . . . crimes
committed in the name of passion . . .
dowry-related violence and deaths, [and]
acid attacks.”
The Declaration states that it serves to
complement CEDAW, which, if effectively
implemented could “contribute to the
elimination of violence against women.”
Article 1 of the Declaration defines violence
against women as “any act of gender-based
violence that results in, or is likely to
result in physical, sexual, or psychological
harm or suffering to women.” Acid attacks
fall under the category of gender-based
violence because of the physical and
psychological suffering women endure.
Pakistan acceded to CEDAW in 1996
and Article 5 of the Convention calls for
States Parties to “take all appropriate measures” to “modify the social and cultural
patterns of conduct of men and women,
with a view of achieving the elimination
of prejudices . . . [and] practices which
are based on the idea of inferiority or the
superiority of either of the sexes . . . .”
Since acid violence perpetuates the idea of
inferiority of women, Pakistan is obligated
to take measures to counter such violence
from continuing.
Pakistan did enact the Acid Control
and Acid Crime Prevention Act in 2011
that made significant changes to the country’s Penal Code, explicitly outlawing acid
attacks and punishing perpetrators of acid
violence. The Act expanded the definition
to include “disfigures or defaces” in the
original definition of “Whoever causes
pain, harm, disease, infianity or injury to
any person or impairs, disables, [disfigures, or defaces] or dismembers any organ
of the body or part thereof of any person
without causing his death, is said to cause
hurt.” The Act adds two new sections into
the Penal Code for Voluntarily causing hurt
by dangerous means or substances, which
states, “[W]hoever voluntarily causes hurt
by means of . . . corrosive substance or
acid…shall be called to have caused hurt
by dangerous means or substances.” The
other new section for the Punishment for
causing hurt by dangerous means or substances punishes whomever intends to hurt
or likely hurt any person “by dangerous
means or substances . . . with imprisonment for a term which may extend to the
whole of life, or with fine which may not
be less than five hundred thousand rupees,
or with both.” The Act also calls for the
accused to pay for the loss of earning and
medical expense of the victim and tackles
the procurement of acid, only allowing
licensed individuals to manufacture and
sell acid.
Despite this law, an annual report
published by the Aurat Foundation reported
a 37.5% increase in acid attacks since
2011, suggesting the ineffectiveness of
this new act. One reason for the continued
acid violence is the “very low conviction”
rate because of “discriminatory societal
attitudes.” Pakistan is obligated under
CEDAW to eliminate these cultural notions
that preserve violence toward women. The
Progressive Women’s Association investigated only 600 cases out of the 9,000
reports of acid violence from 1994 to
2011. Of those 600 cases, only two percent
of perpetrators were convicted. A low
conviction rate suggests that the majority
of acid attackers have been immune from
punishment and have not yet been deterred
from continuing acid violence.
Sri Lankan Officials have
Dismissed Allegations of
Torture on LTTE Detainees
Four years after the end of Sri Lanka’s
civil war, suspected members and supporters of the Liberation Tigers of Tamil
Eelam (LTTE)—the force opposing the
Sri Lankan government during the armed
conflict—are reportedly still subjected to
various forms of torture, including physical and sexual violence, at the hands of
government agents. Sri Lankan security
forces continue to face allegations that
they torture detainees in detention centers,
prisons, police stations, or in unofficial
facilities in order to coerce the LTTE members and supporters into confessing to their
participation. Torture is prohibited by the
Sri Lankan Constitution as well as international instruments to which Sri Lanka has
acceded, such as the International Covenant
on Civil and Political Rights (ICCPR) and
the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment (CAT). Sri Lankan officials
have so far dismissed the torture claims,
thus preventing a serious investigation into
these allegations.
The LTTE, a Tamil militant group,
emerged in the 1980s in response to what
they perceived as growing discrimination
against the minority Tamil population in
Sri Lanka. Desiring to separate from Sri
Lanka, the Tamil militants often forcibly
recruited members from the Tamil minority
population to join in the efforts as soldiers
or supporters. The Sri Lankan government
defeated the LTTE in May 2009, but the
war resulted in a high civilian death toll
and detention for the LTTE members who
were captured at the end.
Two reports, one from the NGO
Freedom from Torture and another from
Human Rights Watch, documented incidents of torture against LTTE detainees.
Many of these suspected LTTE members
and supporters were arrested after the
end of the war under authority granted
by the country’s Prevention of Terrorism
Act. Under Section 6 of the Act, senior
police officers would have the authority
to arrest, without a warrant, any individuals they reasonably suspected of offenses
such as murder, kidnapping, robbery of
public property, and firearm possession
in security areas, among others. Since the
law does not define reasonable suspicion,
there is potential danger of arbitrary arrest
of individuals. Many of those detained are
placed in detention for up to six months
without “effective due process”—the right
to a fair trial and legal representation.
Once in this custody, Human Rights
Watch reported that detainees are frequently
victims of sexual violence, including the
rape of both men and women, sexual
assault, forced nudity, and sexual humiliation. According to the report, the situation
is more dire because the Prevention of
Terrorism Act provides such deference to
security forces that they are “effectively
[immune]” from punishment for inflicting
torture.
Echoing the language of Article 7 of
the ICCPR—to which Sri Lanka acceded
in 1980—Article 11 of the Sri Lankan
62
Constitution calls for freedom from torture
for all persons. Sexual violence and physical abuse reportedly committed by the
Sri Lankan security forces toward LTTE
detainees would constitute torture under
Article 1 of the CAT—to which Sri Lanka
acceded in 1994—which prohibits “any
act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining … a confession.”
The torture reportedly inflicted on
LTTE detainees also implicates domestic
protections. Article 11 of the Sri Lankan
Constitution forbids the use of torture or
“cruel, inhuman or degrading treatment”
on any person. In a Sri Lankan Supreme
Court case, Fernando v. Chrishantha,
where the plaintiff was found to be tortured
in a Sri Lankan prison, the court held that
the prisoner’s “standing in the society” is
not a consideration in determining whether
his right to be free from torture under
Article 11 of the Constitution was violated.
However, Sri Lankan High Commissioner
to New Delhi Prasad Kariyawasam, speaking on behalf of the Sri Lankan government,
did not accept the allegations of torture
from Human Rights Watch as true, and
said that there is a lack of evidence to
substantiate said allegations. He stated
that these allegations are most likely “sob
stories for the sake of obtaining asylum
or refugee status in a developed country.”
This refusal to accept the validity of the
allegations has prevented proper investigation into the detainees’ claims of torture.
Without impartial investigation into these
allegations, the detainees’ confessions are
of questionable validity since it cannot be
determined whether the evidence of their
terrorist affiliation was forced by means
of torture.
Anusree Garg, a J.D. candidate at the
Rights Brief.
Central Asian States Disregard
LGBT Rights
Throughout Central Asia, lesbian, gay,
bisexual, and transgender (LGBT) people
must hide their sexual orientation for fear
of violence, extortion by the authorities,
and even arrest. The lack of protections
for this population creates a human rights
issue. In the Soviet era, homosexuality
was criminalized and could lead to several
years in prison. Since the dissolution of
the Soviet Union in 1991, the situation
for LGBT people in Central Asia remains
precarious, with homosexuality still criminalized in Uzbekistan and Turkmenistan
and discrimination and marginalization
throughout the region. The Central Asian
countries can come into line with international law, enshrined in the International
(ICCPR) and the International Covenant
on Economic, Social, and Cultural Rights
(ICESCR) and emerging norms by decriminalizing homosexuality and combatting
social norms stigmatizing people based on
their sexual orientation.
Article 9 of the ICCPR defends against
arbitrary arrest and protects everyone’s
rights to liberty and security of person
while Article 17 protects people from
unlawful interference with privacy. Article
26 of the ICCPR and Article 2 of the
ICESCR both guarantee protection against
discrimination on any grounds. In 2012,
the UN Office of the High Commissioner
for Human Rights (OHCHR) explained
that although the non-discrimination
guarantees listed in the ICCPR and the
ICESCR do not explicitly include “sexual
orientation,” they all include the words
“other status.” The OHCHR explained that
the inclusion of the words “other status”
affirms that the lists of discriminations
were intentionally left open to include
future grounds for discrimination, such as
sexual orientation, which were not considered when the documents were written.
In 2009, the Committee on Economic,
Social and Cultural Rights (CESCR)
confirmed that the non-discrimination
guarantee of the ICESCR includes sexual
orientation. The CESCR explained that
states should ensure that a person’s sexual
orientation is not a barrier to realizing
ICESCR rights. In June 2011, the Human
Rights Council adopted the first UN resolution on sexual orientation and gender
identity, expressing “grave concern” at
violence and discrimination against individuals based on their sexual orientation
and gender identity, leading to the first UN
report on this issue.
Discrimination against LGBT people
is the prevailing standard throughout
the Central Asian states. Article 120 of
Uzbekistan’s criminal code outlaws sexual
intercourse between two men, as does
Article 135 of Turkmenistan’s criminal code.
Since 1998, homosexuality is no longer
outlawed in Kazakhstan, Kyrgyzstan, and
Tajikistan. Despite this legal change, the
lack of specific protections for LGBT
people and an environment where LGBT
individuals cannot approach authorities
for fear of blackmail or violence has led
to societal discrimination, which functions as if it is institutionalized by law. In
Kyrgyzstan, lesbian and bisexual women
are often subjected to forced marriages
and rape in an effort to “cure” them.
Homophobia is widespread in Tajikistan,
where many view homosexuality as a sin
or a disease and the general population
is intolerant of homosexuality because
of traditional attitudes and Islam’s
strong influence on the population. This
discrimination implicates the rights to
privacy and expression because LGBT
people are forced to hide their identities for
fear of government and societal reprisal.
According to the organization Civil
Rights Defenders, “[T]here are no legal
safeguards against discrimination based
on sexual orientation or gender identity
in any of the Central Asian countries.”
The organization also claims that human
rights organizations in the region have
been unwilling to defend LGBT rights
and that if LGBT issues are addressed, it
is usually in a manner that creates further
stigmatization, such as in conjunction with
HIV prevention initiatives. These initiatives, in and of themselves often carry their
own cultural stigma, further marginalizing
LGBT issues. In 2009, an Uzbek HIV
rights activist was sentenced to seven years
in prison for seducing minors; the court
used the activist’s safe sex campaign as
evidence that his activities contradicted
the national traditions and culture of
Uzbekistan. In Kazakhstan, Kyrgyzstan,
and Tajikistan, however, there are initiatives and organizations working openly
for LGBT rights and HIV prevention. As a
marginalized population, LGBT people in
Central Asia need government protections
to ensure that they enjoy the rights offered
to all persons under international law.
By arbitrarily arresting, blackmailing,
criminalizing, physically and verbally
abusing, and engaging in general discrimination against LGBT people, the Central
Asian countries are not upholding the
ICCPR and the ICESCR. These documents
are both binding on the Central Asian
countries because Kyrgyzstan, Tajikistan,
Turkmenistan, and Uzbekistan are all
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States Parties. The only way for the Central
Asian states to come into line with the
ICCPR and the ICESCR is to decriminalize homosexuality and to establish laws
protecting their LGBT communities from
discrimination. Even where homosexuality
is decriminalized, societal discrimination
and marginalization deprive LGBT people
of their basic rights, which are guaranteed
by the ICCPR and ICESCR.
Emily Singer Hurvitz, a J.D. candidate
Human Rights Brief.
Europe
Italy’s Return of Asylum
Seekers to Greece Raises
Human Rights Concerns
The Italian government has recently
instituted a policy of returning asylumseekers back to abusive conditions in
Greece without reviewing their claims,
an approach in conflict with both national
and international obligations. Italy has
continued to pursue this policy of summary return of both Greek asylum-seekers
and persons from northern Africa who
originally were seeking asylum in Greece
despite requests from observers, including Council of Europe Commissioner
for Human Rights Nils Muižnieks and
the UN Special Rapporteur on rights of
migrants François Crépeau, that the state
discontinue the practice. As immigration
law is currently enforced, both adults and
children are generally deported via commercial ferries and confined in makeshift
holding cells or engine rooms under the
custody of the ship’s captain. According to
media reports, asylum-seekers are sometimes denied adequate food and, upon
return, Greece has been unable to provide
the individuals with basic requirements of
safety and shelter. This maltreatment is
attributable to Greece’s overburdened asylum system—a system which leaves little
chance that asylum-seekers will receive
adequate support within Greece and has
led to numerous reports of human rights
violations perpetrated by Greek authorities.
The Dublin Regulation (Dublin II), to
which both nations are bound, governs
the interaction between Italy and Greece
regarding which state should process
claims by asylum-seekers. The European
Union (EU) regulation requires that
asylum claims be dealt with by the first
Member State in which the asylum-seeker
arrives. Should the individual leave that
first state, the individual can be returned to
the state of entry in the EU. The assumption under Dublin II is that EU Member
States will comply with their international
obligations toward asylum-seekers under
the 1951 Refugee Convention and its 1967
Protocol, the European Convention on
Human Rights (ECHR), the Qualification
Directive, and the EU Charter. The stated
goal of Dublin II is to ensure that one
Member State is responsible for the examination of individual asylum claims in
a manner that respects the fundamental
rights of asylum-seekers. Additionally, it
is meant to promote judicial efficiency of
the asylum process and to deter individuals
from filing multiple asylum claims. In
practice, however, refugee rights advocates note that Dublin II often acts as a
roadblock to refugees by causing extensive
delays in the examination of asylum claims
by sending asylum-seekers back to their
point of entry and increasing pressure on
EU border countries that receive a disproportionate number of asylum-seekers
compared to northern European countries.
The use of Dublin II in relation to
the Greece and Italy situation has drawn
concern. In December 2009, the UN High
Commissioner for Refugees recommended
that governments stop sending asylumseekers back to Greece and stop applying
Dublin II provisions until further notice,
a request with which many nations complied. In 2011, the European Court of
Human Rights in M.S.S. v. Belgium &
Greece held that Belgium had violated
Articles 3 and 13 of the ECHR by sending asylum-seekers back to Greece under
Dublin II. Also in 2011, the EU Court
of Justice held in NS v. ME that Member
States have an obligation not to transfer
asylum seekers to Member States where
they would face inhuman or degrading
treatment in violation of Article 4 of the
EU Charter.
By returning asylum seekers to Greece
without fully examining individual asylum
requests, Italy has failed to address the
concerns raised by the courts and intergovernmental organizations. Further economic
issues, especially in Greece but throughout
Europe, continue to impede states’ abilities
to provide integration services for migrants
in the continent. Although movement has
been made to standardize EU practices
through implementation of a Common
European Asylum System, as the states
negotiate the asylum-seekers continue to
face hardships.
Such hardships are not made easier
by the economic hardship faced by the
southern European countries that is exacerbated by their proximity to northern
Africa, currently the source of a high
number of asylum-seekers. Many such
individuals enter via undocumented transportation, making it exceedingly difficult
to regulate the numbers of people entering
the European countries. Without assistance from northern European countries,
it is difficult for the migrant-receiving
countries in the south to process asylum claims under Dublin II. In 2011, the
Italian Minister of the Interior appealed
explicitly for this kind of additional support from fellow European states. Italy
may be violating its responsibilities under
Dublin II and various human rights documents, but without support from other
European states, Italy’s economic burdens
make it difficult for them to meet these
obligations. Nevertheless, continent-wide
cooperation could create a viable path to
adequately process asylum requests under
Dublin II that respects the individuals
seeking protection.
Belgium Mulls Allowing
Children to Choose Death
Belgium is currently considering
expanding a 2002 euthanasia law so that
chronically ill children would be granted
the right to choose to die. This proposed
legislation has raised concerns from many
groups about its implications on the quality of care available to children and the
potential exploitation of chronically ill
children for their organs. Current legislation allows adults over age eighteen to
exercise the right to choose to die. The
practice has been on the rise in Belgium;
between 2011 and 2012, there was a 25
percent increase in reported physicianassisted deaths, accounting for two percent of the total deaths in the country.
Some doctors administering euthanasia
procedures said they feel that part of caring
for their patients is providing conditions in
which a person can die with dignity. Before
adults can access the right to die through
euthanasia, they must show that they are suffering from a “hopeless medical situation,”
though this standard includes non-terminal
conditions. Potentially extending the right
64
to die to children has led critics to express
a renewed sense of concern about the
implications of such legislation.
Religious and anti-euthanasia advocacy
groups point to a number of informed consent issues arising out of the practice of child
euthanasia. One particular area of concerns
is the use of organ donation in cases where
children, whose organs are in high demand,
did not consent. More generally, a 2010
report in the Canadian Medical Association
Journal (CMAJ) revealed that nearly half of
the interviewed Belgian nurses, who are not
legally permitted to administer euthanasia
drugs, admitted to participating in physicianassisted deaths. Another study published in
CMAJ found that nurses perform 32 percent
of assisted deaths without an explicit request
or consent, and 1.8 percent of cases classified as assisted death occurred without the
consent of the patient. It also found that
nearly half of physician-assisted suicides in
the Flanders region were unreported, which
hinders oversight.
Consistent with the Universal Declaration
of Human Rights, states codified and
extended the rights of life, liberty, and security of persons to children in Article 3 of
the Convention on the Rights of the Child
(CRC), to which Belgium is a party. This
article mandates that the “best interest of the
child” should be the guiding principle for all
matters concerning children. Additionally,
Belgium faces certain obligations surrounding a child’s right to express her desires in
relation to medical treatment. Article 12 of
the CRC states that children must be allowed
to express their views freely in accordance
with their age and maturity. The article’s
meaning is explained in the Committee on
the Rights of the Child’s General Comment
No. 12, which states that children must
be allowed to express their views on their
individual healthcare decisions. However, the
Committee recognized that the child’s right
to be heard must recognize the role a child’s
maturity plays.
In the United Kingdom, a fourteenyear-old girl stated that she did not want
to continue with her life-saving cancer
treatments, but later changed her mind
and decided to undergo chemotherapy
after receiving a text message from a
friend. These apparently impulsive decisions are what critics of the law wish
to avoid. Conversely, many people argue
that children with serious and incurable
diseases should have the same rights as
adults to choose the appropriate form
of treatment. Studies have shown that
children often display greater lucidity than
adults on the issue of death and often have
skill, understanding, and maturity to make
decisions about their personal medical
situation. Parents of an eighteen-year-old
who chose to exercise her right to die in
the Netherlands said that their daughter’s
decision allowed her to retain some dignity
as her quality of life declined. Belgium
faces the difficult task of balancing its
obligations under the CRC to ensure that
children’s voices are heard with its mandate to protect the child’s best interest.
Belgium is not the only country pursuing this type of legislation. A proposed law
in the Netherlands would similarly expand
euthanasia to children. As a child’s right
to choose to die gains legislative ground,
protection from potential abuses of euthanasia will become particularly relevant for
suffering children, one of the continent’s
most fragile groups. Because children are
not always able to speak for themselves,
the CRC requires that children’s rights be
viewed through a different framework than
that used for comparable rights afforded
to adults. Consequently, simply expanding
the current Belgian legislation to children
may not take into account the complexities and vulnerabilities of youth. With
the proper safeguards in place, Belgium
may be able to successfully implement its
proposed legislation and provide children
with appropriate autonomy in decisions
involving the right to choose to die.
Christa Elliott, a J.D. candidate at the
Rights Brief.
Middle East and North Africa
State Sovereignty or
Democracy: Which Will
Win in Iran’s election?
After widespread protests following
the disputed 2009 election results, the
ruling elite led by Ayatollah Ali Khamenei
have chosen to ensure a consolidation of
power before the June 2013 election. In
August 2012, the UN Secretary-General
expressed deep concern about “reports
of the increasing number of . . . arbitrary
arrest and detention, unfair trials, torture
and ill treatment; and the severe restrictions targeting media professionals, human
rights defenders, lawyers and opposition
activists.” Since the release of the SecretaryGeneral’s report, the arbitrary arrests have
increased, creating an urgent need for Iran
to comply with its binding obligations under
the International Covenant on Civil and
Political Rights (ICCPR).
The ICCPR grants all peoples the ability
to freely determine their political status,
the right to hold opinions without interference, and the right to self-determination.
In February, UN Special Rapporteur on the
rights and freedom of peaceful assembly
and of association, Maina Kiai, publically reminded Iran of its obligations to
protect civil liberties. In early 2012, Iran’s
Guardian Council disqualified more than
2,000 potential candidates for the parliamentary election, citing a lack of adherence to
Islam and the Constitution. No opposition
parties or candidates have been allowed to
propose alternative presidential candidates.
Iran also appears to be increasing its media
censorship by criminalizing any action that
purports to organize a protest, expresses a
“disturbing political opinion,” or insults
the presidential candidates. In January
2011, the Iranian government created the
Iranian Cyber Police (FATA) to secure
the country from cyber crimes. In recent
months, FATA has been monitoring online
bloggers, activists, and citizen groups that
are critical of President Ahmadinejad.
Many fear that as the election nears, FATA
may attempt to block campaign blogs and
social networking sites that rally support for opposition leaders, repeating the
government blockade of websites in 2009.
These actions would stand in direct conflict
with Iran’s obligations under Article 19 of
the ICCPR, which provides that “everyone
shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and
ideas of all kinds.”
The ICCPR also obligates States
Parties, including Iran, which ratified
the Covenant in 1975, to protect against
arbitrary arrests and ensure fair trials. In
2011, former presidential candidates Mir
Hossein Mousavi and Mehdi Karroubi,
and Mousavi’s wife, Zahra Rahnavard,
were placed under house arrest and banned
from participating in parliamentary elections. The Iranian government condemned
these opposition leaders for inciting the
2009 riots. Because formal charges were
never filed, the United Nations Working
Group on Arbitrary Detention condemned
65
the arrests in 2012. In February 2013, the
UN Special Rapporteur on Iran, Ahmed
Shaheed, called for the immediate release
of hundreds of Iranian political prisoners,
including Mousavi and Karroubi, who
remain under house arrest.
Shaheed’s requests came on the heels of
a wave of arbitrary arrests and harassment
of political activists, human rights lawyers, and media workers. A report by the
Committee to Protect Journalists indicated
that Iran is a close second for having the
highest number of journalists imprisoned.
In January, security forces arrested sixteen
journalists in a single week. A recent Human
Rights Watch Report documents the mass
exodus of Iranian lawyers and activists to
neighboring Iraq and Turkey. The report
indicates that the UN High Commissioner
for Refugees received 11,537 asylum
applications in 2009; 15,185 in 2010; and
18,128 in 2011. In response to Shaheed’s
call for the end of arbitrary imprisonment,
the Iranian government labeled the scrutiny
of Iran by the UN Special Rapporteurs as
an attempt at political sabotage. As one
of only a handful of countries with a UN
Special Rapporteur assigned to it, Iran feels
that it has been unjustly singled out. Yet, the
Iranian government has repeatedly ignored
its obligations under the ICCPR to ensure
that “no one shall be subjected to arbitrary
arrest or detention.” As the election nears,
the international community will be analyzing Iran’s compliance with its ICCPR
obligations. Specifically, it will scrutinize
Iran’s commitment to ensure a free election
by universal suffrage, “held by secret ballot,
guaranteeing the free expression of the will
of the electors.”
Since this analysis was written in April
2013, the Iranian elections took place with
relatively few security incidents and the
victory of a moderate candidate, Hassan
Rouhani. The ruling clerics, under Ayatollah
Khamenei's leadership, sucessfully adverted
a repeat of the 2009 widespread protests by
continuing the house arrest of reformist
leaders, intimidation activists, and stifling
journalists. Iran's obligation to uphold the
rule of law and protect basic freedoms
continues far beyond the comparatively quit
election period.
Alyssa Antoniskis, a J.D. candidate
Human Rights Brief.
The Plight of Syrian Refugees in
Lebanon
Almost one million Syrian citizens
have fled their country since peaceful
protests, beginning in March 2011, transformed into a violent civil war. Fighting
between Bashar al-Assad’s regime and
opposition militias has ravaged cities and
towns throughout Syria. Lebanon, which
has an official policy of dissociation with
the Syrian conflict to prevent hostilities
from spilling over the border, is absorbing
a large portion of the Syrian refugees
who are fleeing the war-torn country. As
of May 2013, the United Nations High
Commissioner for Refugees (UNHCR)
estimates that the number of Syrian
refugees in Lebanon exceeds 430,000.
The country of four million, however,
is not legally obligated to care for the
refugees because it is not a party to the
1951 Convention Relating to the Status
of Refugees (Refugee Convention). Due
to the large influx of refugees into the
tiny country, Lebanon is faced with a
predicament seen in many conflicts that
international law provides an insufficient
framework for solving.
According to the Statute of the Office
of the UNHCR, which was adopted by
the UN General Assembly, all governments should cooperate with the High
Commissioner in the performance of
his functions. Article 23 of the Refugee
Convention promises refugees the same
treatment, with respect to public relief and
assistance, as is accorded to a country’s
own citizens. Article 14 of the Universal
Declaration of Human Rights (UDHR)
enshrines the right of persons to enjoy
asylum from persecution in other countries. However, this framework may not be
enough to safeguard the rights of Syrian
refugees in Lebanon.
Syrian refugees in Lebanon that have
yet to register with the UNHCR cannot
receive necessities such as food, blankets, and rental assistance. In a February
interview with National Public Radio, the
UNHCR representative in Lebanon said
that the agency simply cannot keep up with
the growing number of refugees—4,200
people per day currently approaching the
agency, as compared to 1,700 people per
day in December 2012. Aid workers have
indicated that the registration process is
hindering refugees from receiving necessary aid in a timely manner.
Lebanon absorbed over 400,000
Palestinian refugees since 1948, many of
whom are still living in refugee camps run
by the United Nations Relief and Works
Agency for Palestine Refugees in the Near
East (UNRWA). Because of this history,
Lebanon has forbidden the construction of
formal refugee camps for Syrian refugees.
The UNHCR says that Lebanon does not
have the legal or administrative procedures
in place to address the specific needs of
refugees, leaving them vulnerable to arrest,
detention, and deportation. The agency
notes that improving protections for refugees in Lebanon is a priority and that it is
working toward a more stable understanding with the Lebanese government.
Lebanon’s fragile political balance
and its history with Palestinian refugees
certainly provide reason for caution, but
these are not an excuse to escape the steps
that need to be taken. According to the
UNHCR Syria Regional Response Plan,
refugees are scattered across Lebanon in
over 540 locations, in some of the poorest
areas of the country, because Lebanon has
not established refugee camps. Without
centralized locations for refugees to live,
they are forced to find shelter throughout
Lebanese communities, making aid more
difficult to distribute.
The UNHCR emphasizes that burdensharing is key to maintaining the protection
of refugees. In furtherance of this theory,
the UNHCR assists refugees so that the
cost of their welcome is not borne by
the countries of refuge alone. Turkey and
Egypt are the only countries, of the five
formally accepting Syrian refugees, that
are bound by the Refugee Convention.
They are better equipped to deal with the
refugee situation because they are bound
by international law to provide additional
protections. If Lebanon were a party to
the Convention, the refugees would be
afforded automatic protections, such as the
right to receive identification documents
and the right not to be deported back to
Syria.
The UNHCR Statute, the Refugee
Convention, and the UDHR all highlight
the rights that should be afforded to
Syrian refugees in Lebanon. Improving
the situation for these refugees falls on the
UNHCR, the Lebanese government, and
other developed countries to provide sufficient aid. Without binding international
guidance, Syrian refugees depend on the
66
good will of the international community
for survival. The UNHCR can be better
prepared to deal with the influx of refugees
in Lebanon by making the registration
process more efficient and reinforcing
the staff and resources available for registering refugees. Since the key players
dealing with this refugee situation lack
necessary resources and there is an insufficient binding legal structure, it remains
an insurmountable challenge to provide the
Syrian refugees with their UDHR rights to
asylum and for them to be treated equal to
Lebanon’s own citizens.
Emily Singer Hurvitz, a J.D. candidate
Human Rights Brief.
Sub-Saharan Africa
Suppression of Civil Society
Raises Concern over Zimbabwe’s
Constitutional Referendum
Zimbabwe’s constitutional referendum
may signal a new future for Zimbabwean
governance and human rights, but arrests
and raids of several human rights organizations have cast doubt on the legitimacy of
the process. The constitutional referendum
was passed with 94.5 percent of the vote,
and political elections are scheduled for
the summer. The motivation for the reform
traces back to the country’s 2008 elections and the power-sharing agreement
between the political parties of President
Robert Mugabe and Prime Minister
Morgan Tsvangirai. Observers questioned
the validity of the elections, which were
colored by allegations of vote suppression
and fraud. Tsvangirai’s party narrowly won
a majority in parliament, and his assertion
that Mugabe could not remain president
without a majority in parliament led to
an extensive power-sharing agreement
under which Mugabe became president
and Tsvangirai became Prime Minister.
Events leading up to the referendum
vote, however, indicated a suppression
of the involvement of the Zimbabwean
people, instead of the empowerment that
the power-sharing agreement purports to
reinforce.
Article VI of the power-sharing agreement
established the constitutional referendum
and acknowledged the “fundamental right
and duty of the Zimbabwean people to
make a constitution by themselves and for
themselves.” In referencing the referendum
before the UN General Assembly in 2009,
Mugabe expressed his “unwavering commitment to chart a new vision for the
country and to improve the lives of the
people in peace and harmony.”
However, the government engaged
in arrests of members of civil society
throughout the reform process and such
efforts increased in the months leading up
to the vote. In August 2012, Zimbabwean
riot police described by witnesses as
“visibly drunk” raided the headquarters of
the Gay and Lesbian Alliance of Zimbabwe
(GALZ). Employees stated that they were
assaulted as the officers seized documents
based on charges of running an “unregistered organization,” an allegation also used
to authorize the arrest of the director of the
Zimbabwe Human Rights NGO Forum.
Authorities have also apprehended several
members of the Counseling Service Unit
(CSU), a torture and political violence
support organization, for possession of
“offensive and subversive material.”
The weeks leading up to the vote have
been particularly intense for what activists
call suppression of civil society. Police
officers on February 11 twice raided the
offices of the Zimbabwean Police Project,
which has been a target of antagonism dating back to the arrest and alleged torture
of its director in 2008. On the recent
occasion, officers entered the offices both
times brandishing warrants for “subversive
material.” On February 13, when the date
for the referendum was announced, eight
members of Women of Zimbabwe Arise
(WOZA) were arrested following what
reports have described as police beatings
and tear gas deployment against activists
handing out roses and teddy bears during a
Valentine’s Day demonstration outside the
Zimbabwean Parliament.
Civil society organizations’ activities
related to voting in the referendum have
also led to raids on several organizations
and arrests on charges of voter registration
fraud. ZimRights, a human rights organization, has seen its director and secretary,
among other employees, arrested for “voter
registration fraud.” Officials charged the
employees with “publishing falsehoods,
fraud and forgery after . . . conducting illegal voter registration.” Similarly, following
an initial arrest of forty members, officials
charged two leaders of the National Youth
Development Trust with voter registration
fraud for possessing voter registration
receipts. This has also extended to the
arrest of two officials from the Zimbabwe
Electoral Support Network for holding an
“unsanctioned public meeting.”
Targeting civil society with violence
and arrest based on political activity are
violations not only of the professed purpose
of the constitutional referendum, but also
with the inclusion of state authorities in the
reported situations, the actions implicate
Zimbabwe’s obligations under international
human rights law. The charges and the
circumstances of the arrests are indicative
of arbitrary arrest due to their broad nature
and also suggest a pattern of suppression based on political activities without
cause, in violation of Article 9 of both the
Universal Declaration of Human Rights
(UDHR) and the binding International
(ICCPR), to which Zimbabwe is a State
Party. The police actions, which the civil
society organizations have said was aimed
at suppression of information, targeted
the dissolution of the organizations and
seizure of documents and publications.
This implicates ICCPR obligations under
Articles 19 and 21, which protect the rights
of freedom of association, expression
through the dissemination of opinion and
information, and assembly, and constitutes
political discrimination contrary to Article
1 of the same.
In a process aimed at increasing peace,
democratization, and broader political
involvement, Zimbabwe’s laudable goal of
a constitutional referendum has resulted
in increased suppression of civil society.
These allegations of human rights violations by Zimbabwean authorities put into
question the legitimacy of the constitutional referendum and whether this alone
could solve the institutional defects that
lead to rights violations in Zimbabwe.
Election Reform Shifts 2013 Vote
in Kenya from 2008 Violence
Kenyan voters returned to the polls on
March 4, 2013, for the country’s first general election since a 2008 vote marred by
widespread political violence and claims
of voter fraud and rigged tabulations. Since
that election, Kenya revised its constitution
in 2010 and this was the first test of its
provisions intended as a response to the
aforementioned electoral violence.
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Kenyans voted for the new constitution
in a referendum following a power-sharing
agreement between now outgoing president Mwai Kibaki and career politician
Raila Odinga. In an effort to end postelection violence, Kofi Annan brokered
the agreement, which saw Odinga assuming the position of prime minister while
Kibaki retained the presidency.
Deputy Prime Minister Uhuru
Kenyatta—the ultimate winner of the 2013
vote—is alleged to have had control over
the attacks against Odinga’s political supporters during the violence that followed
the 2008 election. Kenyatta is one of the
wealthiest men in Kenya, and was charged
in the International Criminal Court (ICC)
with financing and directing murder,
forced deportation, sexual violence,
and other inhumane acts—charges that the
pre-trial chamber confirmed in January
2012. Kenyan politics centers around
ethnicities and ethnic alliances, and
violence was directed at opposing ethnic
groups primarily between Kibaki’s Kikuyu
supporters—of which Kenyatta is also a
member—and Odinga’s Luo supporters.
With this history, one primary domestic
and international concern leading up to the
March vote was the validity of the election
results. To this end, the constitution created
the Independent Electoral and Boundaries
Commission (IEBC). The IEBC oversaw
the entire electoral process, and adjudicated any claims of voter fraud. In this
endeavor, the IEBC primarily was tasked
with enforcing regulations of Electoral Act
of 2011. The IEBC decisions and petitions
are then subject to judicial review in the
Supreme Court of Kenya.
The 2013 vote pronounced Kenyatta
the victor with 50.07 percent of the vote to
Odinga’s 43.7 percent. This result avoided
an automatic recount that would be triggered if no candidate received a majority.
Due to the close nature of this result,
however, Odinga and civil society allies
challenged the election results, asserting
that they were again marred by technical problems. The IEBC did direct some
recounts in areas that had been affected
by technical issues; however, these smallscale recounts did not change the initial
results and the IEBC certified the election
on March 9; on March 31 the Supreme
Court upheld the election results.
While some observers have questioned
the IEBC recount process, the functioning
of the 2013 election and post-election
stands in stark contrast to what occurred
in 2008. On Election Day, there were a
few instances of violence and clashes with
police in Mombasa. The attacks, however,
were perpetrated by a separatist organization—in contrast to the 2008 violence,
which was politically motivated targeting
ethnic groups. The 2013 elections also
saw a concerted effort by Kenyan police
and security forces to increase security
presence at polling stations and in possible
areas of violence. Likewise, no widespread
violence broke out post-election.
Yet the result of the election drew
international attention because it resulted
in victory for a president who is indicted
on charges of international crimes. This
places him in the exclusive company of
Omar al-Bashir of Sudan as ICC-indicted
heads of state. In fact, much of Kenyatta’s
campaign addressed this indictment, and
he rallied support around claims that it was
part of western control of Kenya. While
this has raised some issues around foreign
assistance and diplomatic ties, much of
the possible outcomes will rest on ICC
decisions and possible trials later this year.
While Kenya’s election still revolved
around ethnic identity and alliances with
the candidates, it did mark a turning point
in a country struggling for political legitimacy following the 2008 election violence.
Although the issue of a major western ally
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having an ICC-indicted head of state has
yet to be resolved, the functioning of the
election was for the most part violencefree. The election reaffirmed human rights
obligations of Kenya in both preventing
violence and elections. Kenya fulfilled its
duties to protect citizens from violence
under the Universal Declaration of Human
Rights (UDHR) Articles 3 and 5. This
allowed for Kenya to maintain its citizens’
rights to universal suffrage and having a
voice in governance under UDHR Article
21(1) and (3).
Tyler Addison, a J.D. candidate at the
Rights Brief.
Criminal Courts and Tribunals
International Criminal Court
Fourth State Party to the Rome
Statute Ratifies Crime
of Aggression Amendment
Luxembourg recently became the fourth
State Party of the International Criminal
Court (ICC, Court) to ratify amendments
to the Rome Statute that were adopted in
a historic consensus at the 2010 Review
Conference of the International Criminal
Court in Kampala, Uganda. The January
15, 2013 ratification brings the controversial amendments another step closer to
entering into force. If the requisite number
of states ratify the proposed amendments,
the ICC’s jurisdiction would dramatically
increase in scope, likely having profound
global implications for current armed
conflicts.
Although the Rome Statute included
the crime of aggression within the Court’s
jurisdiction at its inception, the Court has
been unable to exercise its jurisdiction
as the original Statute failed to define
the crime or its jurisdictional boundaries.
The inclusion of the crime of aggression
in Article 5, while lacking a functional
definition and jurisdictional details, was
part of a compromise reached during the
negotiation of the Rome Statute in 1998.
However, on June 11, 2010, the delegates
of the Review Conference of the Rome
Statute adopted amendments that included
a definition of the crime of aggression
and established conditions for the Court’s
jurisdiction.
The amendments adopted in Kampala
include Article 8 which defines the crime
of aggression for the purpose of the Rome
Statute. The text of Article 8(1) states that
the crime of aggression must be conducted
by a person effectively controlling the
political or military action of a state and
is “the planning, preparation, initiation
or execution […] of an act of aggression
which, by its character, gravity and scale,
constitutes a manifest violation of the
Charter of the United Nations.” The term
“act of aggression” is defined in Article
8(2) bis as the “use of armed force by a
State against the sovereignty, territorial
integrity or political independence of
another State, or in any other manner
inconsistent with the Charter of the United
Nations.” Notably, this definition refers
back to the UN Charter throughout the
text, reflecting compromises made to limit
the scope of the definition.
The adopted amendments also include
Article 15 bis and 15 ter, the conditions for
the Court’s exercise of jurisdiction over the
crime of aggression. According to Article
15 bis, for the crime of aggression, the
prosecutor could only open an investigation
proprio motu or one based on a state
referral of a situation, after ascertaining
whether the UN Security Council has made
a determination of an act of aggression
committed by the state concerned. If the
Security Council has made such a determination, then the prosecutor may initiate
the investigation. If the Security Council
has not made such a determination within
six months of the date of notification,
then the prosecutor may commence the
investigation only if the Pre-Trial Chamber
has authorized it and the Security Council
has not decided against recognition of an
act of aggression.
The idea of a crime of aggression,
while treated as a novel idea by many
States Parties to the Rome Statute, is not
at all a new concept within international
law. Article 1 of the 1928 Kellogg-Briand
Pact, known as the General Treaty for
the Renunciation of War, declared, “The
High Contracting Parties solemnly declare
in the names of their respective peoples
that they condemn recourse to war for
the solution of international controversies,
and renounce it, as an instrument of
national policy in their relations with one
another.” With the commencement of the
Nuremburg Tribunal in 1950, an international court actually applied its jurisdiction
to the crime of aggression though it used the
term “crimes against peace.” The definition
of crimes against peace adopted in
the Nuremburg principles comprises
“planning, preparation, initiation or waging
of a war of aggression or a war in violation
of international treaties, agreements or
assurances.”
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Along with the ideas promulgated
at Nuremburg, the UN Charter, adopted
in 1945, prohibited the use of armed
force against another state in Article 2(4).
Although international law had customarily
protected the sovereignty of states, including
their right to use armed force against another,
the UN Charter, along with Nuremburg,
suggest an evolving intent to limit the
legitimate use of armed forces to situations
of self-defense, although international
humanitarian law has yet to place such
strict limits in all cases. The new amendments to the Rome Statue would take steps
toward reinforcing these limitations on the
use of armed force and can be seen as an
attempt to further the principles endorsed
by Nuremburg—the end to global conflicts
that result in mass casualties and the ability
to hold individuals accountable for their
actions in these atrocities.
ICC Withdraws Charges Against
Former Kenyan Official
The International Criminal Court’s
(ICC) Prosecutor, Fatou Bensouda, filed a
motion in March 2013 to drop all charges
against Francis Kirimi Muthaura, the former
Head of the Public Service and Secretary
to the Cabinet of the Republic of Kenya,
a co-accused of Kenya’s recently elected
President, Uhuru Kenyatta. Muthaura and
Kenyatta were jointly accused of five
counts of crimes against humanity for
their alleged involvement in authorizing
and organizing the wave of violence that
swept through Kenya following contested
presidential elections in late 2007. All
five counts are included in Article 7(1)
of the Rome Statute of the ICC, which
defines crimes against humanity as certain
acts “committed as part of a widespread
or systematic attack directed against any
civilian population, with knowledge of
the attack.” Specifically, Muthaura and
Kenyatta were charged with murder,
deportation or forcible transfer, rape,
persecution, and other inhumane acts
resulting in the death of more than 1,000
civilians and the displacement of more
than 600,000 more. In Bensouda’s statement on the notice to withdraw charges
against Muthaura, she stressed that it was
her duty to do so when there is no longer
a reasonable prospect of conviction at trial.
In the wake of the worst unrest in
Kenya since its independence in 1963,
Muthaura has been accused of authorizing
police to use excessive force against protesters, protected members of the Party of
National Unity’s youth militia, and also
of attending meetings in which attacks
on civilians were planned. On March 31,
2010, the Pre-Trial Chamber II granted the
prosecution’s request to initiate an investigation into crimes of humanity committed
by Muthaura and Kenyatta. Subsequently,
the case was referred to Trial Chamber V
on March 29, 2012. Under Article 61(9)
of the Rome Statute, “after commencement of the trial, the Prosecutor may,
with the permission of the Trial Chamber,
withdraw the charges” against the accused.
There is no further guidance within the
Statute itself on what conditions must
be met for the withdrawal of charges or
how charges are withdrawn procedurally.
On March 11, 2013, Bensouda issued
a statement on her notice to withdraw
charges against Muthaura, in which she
cited several reasons for the withdrawal,
including witnesses’ death or refusal to
testify due to fear, the lack of support from
the government of Kenya in providing
critical evidence and facilitating access
to witnesses, and most importantly the
fact that the key witness—witness number
four—recanted a crucial part of his statement and admitted to accepting bribes.
Bensouda stressed that this decision
has no bearing on the charges against
President-elect Kenyatta, and stated: “My
decision today is based on the specific
facts of the case against Mr. Muthaura,
and not on any other consideration. While
we are all aware of political developments in Kenya, these have no influence,
at all, on the decisions I make as the
Prosecutor of the International Criminal
Court.” However, at the hearing in which
Trial Chamber V officially dropped the
charges against Muthaura, Kenyatta’s
lawyers urged the Chamber to drop the
charges of crimes against humanity against
their client, claiming the charges were
based on hearsay and were fundamentally
flawed. According to Article 27 of the
Rome Statute, should Kenyatta take office
while there are still charges against him at
the ICC, he will not receive any type of
head of state immunity. Kenyatta’s lawyers
have argued that the entire case should be
returned to the Pre-Trial Chamber because
the prosecution’s case has changed drastically in the past year as certain evidence
no longer exists and a high percentage of
new evidence and undisclosed witnesses
have been offered. Lawyers representing
victims of the violence fear that if Kenyatta
does take power, there could be widespread retaliation for cooperating with
the prosecution and serious danger for
witnesses against him.
The democratic election of an alleged
criminal accused of grave human rights
abuses presents a seemingly monumental
problem for the International Criminal
Court, which has had a shaky history since
its inception ten years ago. Many have
criticized the Court as being too Africanfocused, not effective enough, and an
enduring symbol of western colonialism
—criticisms Kenyatta capitalized on in
the election by using his indictment as
a way to gather popular support. The
decision of the Prosecutor to withdraw the
charges against Muthaura due to lack of
evidence could be seen as an example of
the inefficiencies of the Court. However it
could also serve as an important reminder
about the rule of law and the protections of
defendant’s rights that are essential to any
fair justice system.
Tracy French, a J.D. candidate at the
Rights Brief.
Internationalized Criminal
Tribunals
Witness Identity Leaks in the
Special Tribunal for Lebanon
Lead to Investigation and Possible
Contempt Charges
The Special Tribunal for Lebanon
(STL) came under political scrutiny in
January for leaking the identities of witnesses in the upcoming trials surrounding
the 2005 assassination of former Lebanese
Prime Minister Rafiq Hariri. The source of
the leak is unknown, although the names,
photographs, and identifying information
of the witnesses were published in the
local Al Akhbar newspaper, known for
being aligned with the Hezbollah movement in Lebanon. The STL quickly issued
a statement in which it “denounce[d] in
the strongest possible terms any attempts
at witness intimidation.” Al Akhbar, in an
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article titled The STL Witness List: Why
We Published, justified the release of the
names and photographs, saying that the
public has a right to know the identities
of those testifying against the accused.
Concerns about witness intimidation further complicate public opinion regarding
the already-controversial trial, which will
try the four accused in abstentia.
In April 2013, the Pre-Trial Judge
determined that these leaks likely constituted contempt of court and asked the
President of the tribunal to refer the matter
to a Contempt Judge. In accordance with
a March 2013 calendar assigning one
Contempt Judge and one Appeals Panel
for each month of the year, the President
of the STL, Judge David Baragwanath,
was designated as the Contempt Judge
in this matter. After the April 25, 2013,
hearing on the contempt allegations, Judge
Baragwanath issued a decision ordering
the appointment of an independent amicus
curiae to investigate the source of the leaks
and those who published the confidential
information. Rule 60 bis allows the STL
to hold individuals found in contempt of
court, meaning those who “knowingly and
willingly interfere with its administration
of justice” or “those who threaten and
intimidate witnesses,” responsible through
sentences up to seven years in prison and
fines up to 100,000 Euros.
Other international criminal tribunals have suffered similar challenges
to the proper administration of justice.
Most notably, the International Criminal
Tribunal for the former Yugoslavia (ICTY)
faced comparable issues involving leaks
and publication of witness names and identifying information. In the Celebici case,
tried in 1997, the tribunal was adjourned
for over a week while the Office of the
Prosecutor investigated leaks. Although
the prosecutor identified members of the
defense counsel as the sources of the leak
to the publication Sloboda Herzegovina,
the President of the Tribunal, Judge
Antonio Cassese, concluded that there
was not enough evidence to hold defense
attorneys in contempt of court. However,
Judge Cassese noted that the defendant,
Zejnil Delalic, may have spoken to the
press himself and, in doing so, may have
been in contempt of court. The tribunal
accepted Judge Cassese’s findings regarding the defense counselors but rejected
the implication that Delalic should be
investigated for contempt of court. In
2012, the Appeals Chamber of the ICTY
affirmed former Serbian leader Vojislav
Seselj’s sentence of eighteen months in
jail for publishing the names of protected
who testified in his trial before the ICTY.
The defendant disclosed the names and
pseudonyms of witnesses on his website
and in his 2007 book. The Contempt Trial
Chamber found Seselj guilty of contempt
of court in October 2011 and ordered that
the defendant remove the names and the
book from his website.
Witness testimony before international
criminal tribunals in cases of war crimes
and crimes against humanity is essential to
the pursuit of the truth and the administration of justice, but it can also be dangerous
and difficult. The individuals on trial may
be politically or militarily powerful, and
witnesses risk being identified when they
agree to testify before an international
tribunal. For this reason, the STL’s Rules
of Procedure and Evidence strictly outline witness protection procedures, which
become effective as soon as individuals
enter their applications to become witnesses. From this moment onward, the
tribunal incurs a duty to “ensure security,
safety and protection of victims and witnesses, as well as to respect their confidentiality” and the tribunal becomes
responsible for implementing “protective
measures to ensure witnesses are able
to testify in court without fears about
their safety, security, and confidentiality.”
Rule 133 of STL’s Rules of Procedure
and Evidence outlines steps to guard the
identity of the witnesses, including the use
of pseudonyms in written accounts of the
trial, facial distortion in public broadcast
of the proceedings, and voice distortion
in public broadcast. To limit the exposure during the trial, the proceedings are
generally closed to the public during the
presentation of evidence, and witnesses are
permitted to give testimony via video link
instead of being present in the courtroom.
In an effort to decrease the opportunity
for disclosure, identifying information is
expunged from the public record, including the court transcript, and the chamber
may limit the time each party has access
to the identities of the witnesses of the
opposing party. If counsel for either side
feels that the witness is at imminent risk
of death or serious harm, he or she may
apply to the registrar for entry of the witness into the tribunal’s protection program,
under which the individual would then be
relocated. Failures to respect or protect
confidentiality may result in contempt of
court, which potentially includes jail time.
Although the trial was set to begin at
the end of March, the STL indicated that
these leaks along with delays in disclosure
of evidence, required the tribunal to postpone the hearing, and the case is still in the
pre-trial phase.
French Court Invokes
Universal Jurisdiction
in Rwandan Genocide Case
In early April 2013, French prosecutors
announced the domestic trial of a former
captain in the Rwandan army for his
alleged involvement in the 1994 Rwandan
genocide. Citing universal jurisdiction,
prosecutors charged Pascal Simbikangwa,
who was arrested in 2008 by French
officials under an international arrest
warrant, with the crimes of “complicity
in genocide” and “complicity in crimes
against humanity.” This trial marks the
first attempt by the French government to
prosecute anyone in connection with the
Rwandan genocide. The trial order is a
response to a complaint filed by a group
formed by Rwandans living in France
called the Collective of Civil Plaintiffs
for Rwanda (CPCR). Simbikangwa was
a captain and intelligence officer with the
Rwandan military under the former Hutu
president Juvenal Habyarimana, whose
assassination triggered the mass atrocities
throughout the nation. French prosecutors
accuse Simbikangwa of being a member
of Akazu, a Hutu group of extremists
believed to have planned and executed the
genocide. Simbikangwa is also accused of
arming the Interahamwe Hutu militia and
facilitating the massacre of Tutsis.
Universal jurisdiction, the doctrine
under which certain crimes can be adjudicated in states in which the alleged
crime was not committed, usually only
applies if the judicial system that would
have jurisdiction is unable or unwilling
to conduct a fair and independent trial.
While this was the scenario that led to the
creation of the ICTR, with the tribunal’s
mandate coming to an end and the transfer
of cases to Rwandan domestic courts, this
is no longer the case.
France has repeatedly refused to extradite genocide suspects to Rwanda based on
the belief that detainees would not receive
a fair trial. However, instead of referring
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cases directly to the International Criminal
Tribunal of Rwanda (ICTR), in 2010
France created a unit of its ProsecutorGeneral’s Office tasked with investigating
suspects’ involvement in the genocide for
proceedings within the French judicial system. Even after the official transfer of the
ICTR’s cases to Rwanda’s domestic courts,
France officially indicted Simbikangwa in
its own courts. Simbikangwa’s attorneys
have not yet responded to the French
trial order, and it is unclear whether they
will attempt to appeal the decision and
challenge France’s jurisdiction.
Although the application of universal
jurisdiction to prosecute genocide suspects in domestic courts is not common,
similar indictments have been issued in
the past, leading to successful—though
controversial—trials, such as those conducted in Belgium in 2001. The Belgium
trial marked the first time that a jury was
asked to make a determination of guilt for
violations of international humanitarian
law in another country. However, France’s
choice to try a Rwandan genocide suspect in its domestic courts is particularly
unusual in 2013 because experts within
the ICTR and the United Nations have
determined Rwanda’s domestic courts to
be capable of providing fair and independent hearings for genocide suspects.
The ICTR also transferred its documents
and mandate to an intermediate court
called the Mechanism for International
Criminal Tribunals (MICT). The MICT is
responsible for concluding the remaining
cases open regarding crimes committed in
Rwanda and in the former Yugoslavia. In
November 2012, Emmanuelle Ducos, the
vice president of the French tribunal dealing with Simbikangwa, formally requested
access to all confidential materials the
ICTR, and now the MICT, possess concerning the suspect. The MICT prosecutor
did not object to the request and the judge,
in a ruling on December 20, 2012, permitted the French tribunal access to some
documents while requiring witness consent
to release others. According to this ruling,
Simbikangwa’s case is no longer pending
before the ICTR or the MICT, meaning
that it is among the cases transferred to
Rwandan domestic courts for prosecution.
France’s decision to issue the trial order
was welcomed by Rwandan advocacy
groups; however, it also triggered calls
for further commitment to prosecution.
Jean de Dieu Mucyo, executive secretary
of the National Commission Against the
Genocide, pointed to France’s refusal to
arrest and prosecute other genocide suspects in the state. In particular, Rwandan
groups have tried to put pressure on
France to arrest and prosecute Agathe
Habyarimana, the wife of former Rwandan
president Juvenal Habyarimana. She is
believed to have chaired the Akazu and
Judgment Summaries:
International Criminal
Tribunal for Rwanda
Gaspard Kanyarukiga v. The
Prosecutor, Appeals Judgment,
Case No. ICTR 02-78-A
On May 8, 2012, the Appeals
Chamber for the International Criminal
Tribunal for Rwanda (ICTR) affirmed
Trial Chamber II’s conviction of Gaspard
Kanyarukiga for planning genocide and
extermination as a crime against humanity
based on his role in the destruction of
the Nyange church on April 16, 1994,
which resulted in the deaths of approximately 2,000 Tutsi civilians. The Appeals
Chamber also affirmed his thirty-year
sentence of imprisonment.
Notably, Kanyarukiga asserted a total
of 72 grounds of appeal. Challenges were
grouped into four categories: alleged
violations of Kanyarukiga’s fair trial
rights, alleged errors relating to the
indictment, alleged errors related to
the rejection of the accused’s alibi, and
claims that the Trial Chamber engaged
in faulty assessments of the evidence.
With regard to the challenges based on
alleged violations of the accused’s fair
trial rights, Kanyarukiga claimed, inter
alia, that the Trial Chamber improperly denied his request for a stay of
proceedings, which had been based on
the argument that three laissez-passers
seized from the accused at the time of his
arrest had disappeared, making it impossible for the accused to establish his
alibi defense. In response, the Appeals
Chamber noted that the Trial Chamber
was not convinced that the evidence had
in fact been seized from the accused
and that, in any event, the accused could
establish his alibi defense through other
evidence, meaning that there was no
abuse of process such that proceeding
with the trial would “contravene the
used her economic and political influence to encourage the killing of Tutsis.
Last year, France granted her permanent
residency. As Simbikangwa’s trial moves
forward, Rwandan anti-genocide organizations, as well as Rwandan citizens throughout Europe, will assess this prosecution’s
implications for the future relationship
between France and Rwanda as well as
court’s sense of justice, due to pre-trial
impropriety or misconduct.” The Appeals
Chamber agreed, concluding that the
lower court had not abused its discretion
by not ordering the requested stay and
noting that the burden was on the defense
to show that the accused had suffered an
abuse of process that damaged his fair
trial rights. The Appeals Chamber similarly rejected claims from the defense
that his fair trial rights were damaged
by the Trial Chamber’s alleged setting
of arbitrary time limits on the defense’s
cross-examinations or by the failure to
issue timely rulings on challenges to the
admissibility of prosecution evidence.
Again, the Appeals Chamber found that
these grounds were insufficient because
the defense failed to show that the Trial
Chamber erred in exercising its discretion and that the defense was prejudiced
as a result.
Concerning the alleged errors relating
to the indictment, the Appeals Chamber
dismissed all but one of the defense’s
challenges. Specifically, the Appeals
Chamber upheld Kanyarukiga’s claim that
the prosecution erred by failing to allege
in the indictment that Kanyarukiga had
engaged in a conversation with another
ICTR accused, Clément Kayishema,
concerning the destruction of the Nyange
church. According to the Appeals
Chamber, this conversation constituted
a material fact that, along with others,
underpinned Kanyarukiga’s conviction
for planning genocide and extermination.
The Appeals Chamber then recalled that
the prosecution is required to identify
in the indictment the “particular acts”
or the “particular course of conduct”
on the part of the accused that formed
the basis for the charge in question. The
absence of this information rendered the
indictment faulty. However, the Appeals
Chamber concluded that, because the
prosecution did properly include in the
indictment allegations relating to another
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the success of any potential proceedings
against Simbikangwa in Rwandan domestic courts.
Megan Wakefield, a J.D. candidate
Human Rights Brief.
“planning” conversation that took place
the following day, there was sufficient
basis for the Trial Chamber’s holding that
Kanyarukiga was responsible for planning the destruction of the church. Thus,
the lower court’s judgment was affirmed.
The defense’s challenges based
on alleged alibi error failed due to
the broad discretion afforded to the
Trial Chamber in evaluating factual
information presented at trial, with the
Appeals Chamber stressing that a “Trial
Chamber need not explain every step
of its reasoning.” Lastly, the Appeals
Chamber dismissed the allegations that
the Trial Chamber improperly evaluated
the evidence, a claim that largely rested
on challenges to the lower court’s decisions regarding witness credibility and
treatment of corroborating statements.
On this subject, the Appeals Chamber
stressed that that the Trial Chamber is best
placed to observe a witness’s demeanor
during testimony and to resolve any
inconsistencies that may arise within
or amongst witnesses’ testimonies, particularly given that the Trial Chamber
can consider whether the evidence taken
as a whole is reliable and credible. The
Appeals Chamber further held that the
testimony of two witnesses may be found
to corroborate one another if the two
testimonies are “compatible” regarding
a fact or sequence of facts, and that it
is not necessary that the testimonies be
identical in all aspects.
In addition to rejecting the vast
majority of the defense’s various
grounds of appeal, the Appeals Chamber
rejected the prosecution’s appeal that
the Trial Chamber erred in failing to
sentence the accused to life in prison.
The Appeals Chamber found that a
“sentence of [thirty] years’ imprisonment may be considered among the most
severe sentences,” and that it was not
“so unreasonable or plainly unjust” to
require the Appeals Chamber’s intervention. The prosecution also appealed the
Trial Chamber’s finding that the evidence
proving that Kanyarukiga planned the
destruction of the Nyange church was
insufficient to establish that he “significantly contributed” to the destruction of
the church, which led the Trial Chamber
to conclude that it could not convict
the accused for participating in a joint
criminal enterprise aimed at destroying
the church. The majority of the Appeals
Chamber declined to rule on this ground
of appeal, noting that the prosecution did
not seek to invalidate the lower court’s
verdict but simply sought “clarification
on an issue of general importance to
the development of the Tribunal’s case
law.” However, Judge Pocar did write
a Separate Opinion, offering the clarification sought by the prosecution. He
noted that the Appeals Chamber has the
discretion to “hear appeals where a party
has raised a legal issue that would not
invalidate the judgment,” and explained
that “the clarification of [the] issue will
avoid uncertainty and confusion in future
cases.” Judge Pocar began his Separate
Opinion by recalling that all three categories of joint criminal-enterprise liability
share the following constitutive elements:
(i) a plurality of persons; (ii) the existence
of a common plan, design or purpose that
amounts to or involves the commission
of a crime provided for in the ICTR
Statute; and (iii) the participation of the
accused in the common purpose. He then
explained that the last element, participation, does not require the commission “of
a specific crime” but rather “may take the
form of assistance in, or contribution to,
the execution of the common purpose.”
In this case, as Judge Pocar recalled,
the Trial Chamber determined that “the
requisite contribution would have been
met if Kanyarukiga had ‘ordered, instigated, encouraged or provided material
assistance to the attackers’” at the church,
but that his role in planning the attack was
insufficient. Judge Pocar disagreed with
this conclusion, noting that the Appeals
Chamber for the International Criminal
Tribunal for Yugoslavia held in the Tadić
case that “[a]lthough only some members
of the group may physically perpetrate
the criminal act (murder, extermination,
wanton destruction of cities, towns or
villages, etc.), the participation and
contribution of the other members of
the group is often vital in facilitating
the commission of the offence in question.” Indeed, according to Judge Pocar,
planning a crime involves “designing the
criminal conduct” constituting the statutory crimes “that are later perpetrated.”
Thus, in his opinion, planning a crime
may amount to a significant contribution
to the execution of a common purpose.
Ultimately, having rejected the
majority of appeals from both the prosecution and the defense, the Appeals
Chamber affirmed Trial Chamber II’s
conviction of Kanyarukiga for planning
genocide and extermination as a crime
against humanity, as well as his thirtyyear sentence of imprisonment.
Martha Branigan-Sutton, an L.L.M.
candidate at the American University
Washington College of Law, wrote this
summary for the Human Rights Brief.
Katherine Cleary Thompson, Assistant
Director of the War Crimes Research
Office, edited this summary for the
Human Rights Brief.
Aloys Ntabakuze v. The
Prosecutor, Appeals Judgment,
Case No. ICTR-98-41A-A
On May 8, 2012, the Appeals Chamber
of the International Criminal Tribunal
for Rwanda (ICTR) issued a decision
on the appeal of Aloys Ntabakuze, the
Commander of the Para-Commando
Battalion of the Rwandan Army. Trial
Chamber I had convicted Ntabakuze
based on its findings that he bore
superior responsibility for a number of
crimes and sentenced him to life imprisonment. Specifically, the lower court
convicted the accused of genocide; the
crimes against humanity of extermination,
persecution, murder, and other inhumane
acts; and violence to life as a serious
violation of the Geneva Convention and
its Additional Protocol II, as incorporated
into the ICTR statute. The convictions
were based on three different incidents
that occurred in April 1994: (i) the killing
of Tutsis in the Kabeza area of Kigali on
April 7–8; (ii) the killing of Tutsis on
Nyanza Hill on April 11; and (iii) the
killing of Tutsis at the Institut Africain et
Mauricien de Statistiques et d’Économie
Appliquée (IAMSEA) in the Remera area
of Kigali on April 15. On appeal, the
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Appeals Chamber unanimously reversed
Ntabakuze’s conviction for other inhumane acts as a crime against humanity
based on the events at Nyanza Hill, and
a majority of the Chamber reversed his
convictions for genocide, crimes against
humanity, and war crimes in relation to
the killings in Kabeza. Based on these
holdings, the Appeals Chamber vacated
Ntabakuze’s life sentence, replacing it
with a term of 35 years’ imprisonment.
Ntabakuze appealed his conviction on
37 grounds. Notably, Ntabakuze claimed
that his rights to a fair trial had been
violated in a number of ways, including
the prosecution’s failure to properly
inform him of the charges against him
until the end of trial and the prosecution’s
failure to observe disclosure obligations.
He also claims that in convicting him,
the Trial Chamber “relied solely on
unreasonable and hypothetical inferences
in violation of the principle of innocence.” However, the Appeals Chamber
dismissed each of these claims, finding
that the defense was not able to substantiate any of them.
Ntabakuze also claimed that his right
to be tried without undue delay had
been violated, stressing that he had been
detained twelve years by the time he filed
his Notice of Appeal. In response, the
Appeals Chamber recognized the “substantial length of the proceedings in the
case,” but noted that the Trial Chamber
had already rejected the defense’s claim
that his right to a speedy trial had been
violated in light of the “size and complexity of the trial.” According to the
Appeals Chamber, the mere length of
the accused’s detention did not show that
the Trial Chamber erred in reaching this
conclusion.
Another set of challenges brought
by the defense involved challenges to
the indictment. Specifically, Ntabakuze
alleged that the prosecution erred in not
putting him on notice regarding material
facts underpinning the charges against
him or regarding the mode of liability
upon which the prosecution based its
case. Before turning to the particulars
of these claims, the Appeals Chamber
recalled that “the charges against an
accused and the material facts supporting
those charges must be pleaded with sufficient precision in an indictment so as to
provide notice to the accused,” and that
whether a fact is “material” depends “on
the nature of the [p]rosecution’s case.”
The Chamber also noted that a defective
indictment may be “cured” if “the [p]rosecution provides the accused with timely,
clear, and consistent information detailing the factual basis underpinning the
charge.” Turning to the defense’s specific
claims, the Chamber found that although
the indictment was in fact defective with
respect to the charge that the accused
bore superior responsibility for killings committed in the town of Kabeza,
the prosecution had cured the defect
through information submitted in its PreTrial Brief and the Supplement thereto.
However, the Appeals Chamber also
found that the indictment failed to inform
Ntabakuze that the prosecutor was charging him as a superior for the crime against
humanity of other inhumane acts based
on his role of preventing refugees who
were killed at Nyanza Hill from seeking
sanctuary before being taken to the hill.
Furthermore, it found that the prosecution did not cure this defect by presenting
appropriate information regarding this
charge in subsequent filings, and that the
prosecution failed to prove that this lack
of information did not prevent Ntabakuze
from preparing an adequate defense to
the charge. Accordingly, the Appeals
Chamber vacated the lower court’s
conviction of Ntabakuze for the crime
against humanity of other inhumane
acts. The Appeals Chamber also found
that, although the prosecution generally provided the accused with sufficient
notice that he was being charged under
a theory of superior responsibility for
the actions of Para-Commando soldiers
who belonged to the battalion led by
Ntabakuze, the prosecution failed to sufficiently allege that he was responsible
for the acts of certain militiamen who
committed acts alongside these soldiers.
Thus, the Appeals Chamber reversed the
Trial Chamber’s findings to the extent
they relied on the actions of militiamen,
although this holding did not wholly
vacate any of the convictions because
each of the charges for which the accused
was convicted were supported by multiple allegations.
In addition to successfully challenging
certain aspects of the prosecution’s charging strategy, the defense convinced a
majority of the Appeals Chamber that the
Trial Chamber erred in concluding that
Ntabakuze bore superior responsibility
for the killings carried out by soldiers at
Kabeza. Specifically, while the majority found that the Trial Chamber acted
within its discretion in concluding that
the killings were carried out by members of the Para-Commando Battalion,
it was not satisfied that the lower court
adequately addressed evidence put
forward by the defense suggesting that
certain members of the Battalion were
serving under a commander other than
Ntabakuze. Because it was not clear from
the evidence which company of the battalion carried out the relevant attacks, the
majority of the Appeals Chamber vacated
the Trial Chamber’s convictions to the
extent they were based on actions carried
out at Kabeza. In a dissenting opinion,
Judges Pocar and Liu explained that they
were satisfied with the Trial Chamber’s
assessment of the evidence that led it
to conclude Ntabakuze exercised effective control over the perpetrators of the
attacks in Kabeza, that the defendant
knew that the attacks would be taking
place, and that he failed to prevent them.
Finally, the Appeals Chamber
dismissed each of the defense’s challenges to the Trial Chamber’s approach
to sentencing, a claim which had asserted
that the lower court erred (i) by choosing
a single sentence based upon multiple
74
convictions for the same acts; (ii) by
“double-counting” the accused’s role
as a superior both in determining his
responsibility for the crimes and as an
aggravating factor, as well as the number
of victims at Nyanza Hill in considering
the gravity of the accused’s crimes and
as an aggravating factor; and (iii) by
abusing its discretion by imposing a
life sentence. With regard to the first
claim, the Appeals Chamber stressed
that the “primary goal in sentencing
is to ensure that the final or aggregate
sentence reflects the totality of the criminal conduct and overall culpability of
the offender,” and it held that there was
nothing suggesting that the Trial Chamber
had not adduced its sentence according to
these principles. In relation to the second
claim, the Appeals Chamber disagreed
with the defense’s assessment that the
Trial Chamber had “double-counted” the
relevant factors, noting that the mere
discussion of these factors in its assessment of the sentence does not mean they
were relied upon by the Chamber more
than once. Lastly, the Appeals Chamber
held that, based on its holdings at trial,
the lower court acted within its discretion
to impose a life sentence, despite the
fact that the defense offered a number
of mitigating factors and even though
Ntabakuze was convicted on the basis of
superior responsibility rather than direct
perpetration. Nevertheless, given the fact
that the majority of the Appeals Chamber
vacated a number of the Trial Chamber’s
convictions, as discussed above, it
reduced Ntabakuze’s sentence from life
imprisonment to a term of 35 years.
Jacilyn Fortini, a J.D. candidate at the
of Law, wrote this summary for the
Human Rights Brief. Katherine Cleary
Thompson, Assistant Director of the War
Crimes Research Office, edited this summary for the Human Rights Brief.
Regional Human Rights Systems
African Systems
African Union Considers
Proposals to Add International
Criminal Jurisdiction to the
Pan-African Court
The African Union (AU) is considering
whether to add jurisdiction to hear international criminal law cases in the future
African Court of Justice and Human
Rights, a merger of the current human
rights court and the court of justice.
Drafters submitted a proposal to the AU
in July 2012 to amend the 2008 Protocol
on the Statute of the African Court of
Justice and Human Rights (2008 Protocol)
to include an international criminal law
section along with both the pending general
affairs and existing human rights sections.
The 2008 Protocol still needs twelve more
ratifications before the AU will merge the
African Court on Human and Peoples’
Rights (Human Rights Court) with the
African Court of Justice—the latter being
a court established in the Constitutive Act
of the African Union—under one body:
the African Court of Justice and Human
Rights. Under the proposed third section,
the new combined Court would also have
jurisdiction to hear criminal cases against
individuals. However, the AU has delayed
making a decision on the matter but plans
to do so sometime this year. Although
some have supported the proposal, other
stakeholders have urged the AU to reconsider the proposed merger due to potential
human rights ramifications.
Skeptics of the proposal have expressed
fear that the expanded jurisdiction into
international crimes would undermine the
human rights progress made in the region.
Frans Viljoen of the Centre for Human
Rights at the University of Pretoria has
argued that the disparate mandates between
the proposed general affairs and human
rights sections, both of which would hold
states responsible, and the international
criminal section, which would hold
individuals responsible, would create a
lack of uniformity in their operations.
The three sections would require varied
legal standards, intensities of fact-finding,
and amounts of resources. These planned
differences thus leave open the possibility
that less expertise will be devoted to
human rights and its importance will be
diminished within the new system. For
example, the proposed protocol only calls
for five human rights judges, as opposed
to the current eleven that sit on the Human
Rights Court, and it proposes that a general
court of appeals—with judges that do not
necessarily possess particularized human
rights experience—hear cases from the
human rights section.
The debate, however, also centers on
the political tensions between the AU
and the International Criminal Court
(ICC) in The Hague. The ICC, which has
jurisprudence that has come almost exclusively from situations in African countries,
and the AU have often disagreed on how
to handle cases. However, the AU has
typically only resisted moves by the ICC
to hold current leaders of African states
accountable before the court, presumably
due to the perceived negative impacts of
ICC indictments against African heads of
state in ongoing negotiations and peace
processes for the AU. The AU Heads of
State and Government decided in 2009
not to comply with the arrest warrant
for Sudanese President Omar al-Bashir in
order to promote peace in Sudan. In doing
so, the AU encouraged further investigation into the addition of international
criminal jurisdiction to the pan-African
judicial system in light of the negative
impact the indictment by an international
court had on establishing peace in Sudan.
More recently, the AU in 2011 took issue
with the ICC’s charges against Moammar
Qaddafi, the former Libyan leader,
and stated at the 17th AU Summit that
the arrest warrant for Qaddafi hindered
progress toward negotiating a resolution
in Libya.
In light of the already existing tensions
between the AU and the ICC, it is unclear
how the ICC will handle its overlap with
the proposed court’s jurisdiction. The
complementarity principle under the Rome
Statute encourages domestic prosecution
and only allows the ICC to investigate
when the domestic judicial system fails
to do so adequately, but the ICC has
75
yet to extend this principle to regional
criminal courts. Some proponents of the
proposal, such as Chidi Anselm Odinkalu
of the Open Society Justice Initiative, have
endorsed the new court as a way to expand
the complementarity principle to allow the
AU a chance to respond to situations in
African states and improve accountability
in the pan-African system.
If the AU adopts a criminal jurisdiction
addition to the African Court of Justice
and Human Rights, the pan-African human
rights system would be the first regional
human rights system to adopt a court with
an international criminal mandate, bringing
with it new challenges. A major concern of
adopting international criminal jurisdiction is the amount of resources required to
protect witnesses, engage in extensive factfinding, and maintain the three chambers:
the pre-trial chamber, the trial chamber,
and the appellate chamber. For a regional
human rights system, stretching resources
to meet these economic needs will be a
challenge. Issues of jurisdictional overlap
with the ICC and maintaining the strength
of the current human rights mandate present
additional challenges. How the AU deals
with the difficulties that will come with a
new international regional criminal court
could negatively impact human rights in
the region but could also set a precedent
for other regional human rights systems to
take on international criminal mandates.
ECOWAS Court Agrees to Hear
Case Brought by Inmates on Death
Row Against The Gambia
The Economic Community of West
African States (ECOWAS) Community
Court of Justice (ECCJ) agreed to hear
a case against the Gambia involving its
decision to impose death sentences. The
Socio-Economic Rights and Account
ability Project (SERAP), a Nigerian-based
NGO, filed a complaint with the ECCJ in
September 2012 on behalf of two Nigerian
prison inmates, Michael Ifunanya and
Stanley Agbaeze, who are currently on
death row in The Gambia. The plaintiffs
allege violations of their rights to life,
due process of law, justice and judicial
independence, a fair hearing, appeal, and
effective remedy. The ECCJ is set to hear
the case in May 2013.
The case arises out of a controversial
order issued in August 2012 by Gambian
President Yahya Jammeh to execute all
42 inmates on death row within a month
to deter violent crime in the country.
President Jammeh executed nine of the
inmates before mounting international
pressure caused him to desist. Amnesty
International had previously labeled The
Gambia as abolitionist in practice, categorizing it as one of 141 states that no longer
implement the death penalty. The nine
executions end a 27-year period without
capital punishment and implicate the rights
of inmates. At least one of the executed
inmates, Lamin Darboe, had an appeal
pending at the time of his execution.
The plaintiffs want the ECCJ to order
The Gambia to enforce rights expressed in
several instruments. The African Charter
on Human and Peoples’ Rights (African
Charter) includes the right to appeal under
Article 7, which the plaintiffs were denied
after sentencing. Additionally, the African
Commission on Human and Peoples’
Rights adopted a resolution in 2008 calling
for a moratorium on the death penalty. The
UN General Assembly has also backed a
moratorium on the death penalty with the
goal of abolishing the practice. Finally, the
plaintiffs ask The Gambia to comply with
its own Constitution: Provision 18 of The
Gambian Constitution allows for the death
penalty but directs the National Assembly
to reconsider the possibility of abolishing
the death penalty within ten years of
the Constitution coming into force. The
National Assembly failed to conduct the
review in 2007.
Even if the ECCJ does order the Gambia
to implement the instruments and awards
damages to the plaintiffs, The Gambia may
choose not to comply with the decision.
Although ECCJ decisions are legally binding on Member States, The Gambia has
a history of noncompliance. The Gambia
has yet to comply with two ECCJ decisions issued in 2008 and 2010 for the
detention and torture of two journalists.
The ECCJ requires Member States to set
up national implementation mechanisms
under Article 24 of the Supplementary
Protocol to enforce ECCJ decisions, but
The Gambia has yet to create the necessary
system. ECOWAS announced a new focus
on effective implementation in September
2012, but how it will ensure future compliance with ECCJ decisions from noncompliant Member States remains to be seen.
Justice Ana Nana Daboya of the ECCJ has
publicly stated that noncompliance with
ECCJ decisions is a violation of Member
States’ obligations and should be cause for
financial sanctions.
If the ECCJ rules in favor of the plaintiffs and ECOWAS takes action to enforce
the judgment, the ECCJ’s ruling could
not just ensure the rights of the rest of the
inmates on death row but in the process
could also help shape more broadly the
effectiveness of ECCJ rulings in the future.
There are still 38 inmates left on death row
and a favorable outcome for the two plaintiffs in May could help ensure the right to
life and to a fair trial, pursuant to Articles
4 and 7 of the African Charter for all
the inmates. Additionally, ECOWAS could
use a ruling against The Gambia to set a
precedent of enforcement of ECCJ decisions against traditionally noncompliant
Member States. ECOWAS has not specified how it would enforce ECCJ decisions
itself if it should choose to do so, but
it could take the suggestion of Justice
Ana Nana Daboya and impose financial
sanctions on noncompliant states. Thus
the ECCJ’s decision in May will be an
important one because it could potentially shape the status of the death penalty
in Member States and make a significant
step toward ensuring future compliance
with its decisions.
Brittany West, a J.D. candidate at the
Rights Brief.
European System
European Court of Human Rights
Rules on Expressing Religious
Beliefs at Work
In a landmark judgment on religious
freedom, the European Court of Human
Rights (ECtHR, Court) ruled that there
is a right to manifest individual faith by
wearing religious adornments and that
the religious beliefs of state employees
cannot justify an exception to antidiscrimination laws. The Court in Eweida
and Others v. the United Kingdom joined
four claims containing similar issues of
religious freedom in the workplace. In
all four cases, the applicants claimed that
76
their rights to non-discrimination and free
“thought, conscience or religion” had been
violated by judgments in U.K. domestic
courts. Articles 9 and 14 of the European
Convention on Human Rights (ECHR)
guarantee the right to right to freedom
of thought, conscience and religion and
prohibit discrimination. Two of the cases
also included issues regarding the balance
between the freedom to display religious
symbols and an employer’s stated dress
codes. The remaining two cases regarded
an employee’s right to abstain from serving homosexual clients because of the
employee’s personal religious beliefs.
On the issue of religious symbols,
the two petitioners argued the employers
placed undue restrictions on their religious
freedom by prohibiting visible cross necklaces which represented their Christian
faith. In balancing a British Airways
employee’s wish to manifest her religious
belief with her employer’s desire to project
a certain corporate image, the Court found
that the employer acted unfairly. Although
the company’s desire was legitimate, the
ECtHR found that the national courts had
given too much weight to the employer’s
interests in light of factors including the
company permitting other religious symbols (such as turbans and hijabs), the
discreet nature of the cross, and the lack
of evidence that the employer’s reputation
would be impacted. However, the second
case shows that this right is not absolute. The Court deferred to the employer
hospital’s assessment because they were
better situated to make the decision given
the safety and infection risks posed by a
necklace in the healthcare setting. Thus,
the nature of the workplace is relevant to
enforcing dress codes that limit the display
of religious symbols.
In the second issue, the Court found
that the right to express religious beliefs
is limited by a state’s obligation to not
promulgate discriminatory practices. The
petitioners, a public registrar and a publically employed relationship counselor,
challenged their dismissals for refusing to
serve gay and lesbian clients by arguing
that it was disproportionate and discriminatory for employers to require employees to
provide services to same-sex couples when
doing so obligated them to violate their
religious beliefs, which compelled them to
refuse to condone same-sex couples. The
Court disagreed and found in both cases
that the employers’ policies were aimed at
providing services on a non-discriminatory
basis to ensure the rights of all. The
Court stressed that freedom of religion
encompasses the freedom to manifest one’s
religion, including in the workplace, but
that a person’s religious practice can be
restricted where it encroaches on the rights
of others.
concerned two young Roma men who
authorities placed in a school for the mentally disabled. The ECtHR found against
the state and more broadly articulated
that European governments must institute
constructive measures to end segregation
and discrimination against Roma children
in schools.
U.K. and European law both recognize
religious freedom as a human right but
not as an absolute right that applies irrespective of its effect on others. Thus, the
Eweida judgment highlights this conflict
where the Court must balance between
respecting individual rights to freedom of
expressing one’s religion with collective
rights to be free from discrimination.
The two young Roma men were
diagnosed as children with mild mental disabilities and the state placed them
in a remedial school. These institutions
have a limited and more basic curriculum, offering what the Court found to be
lower-quality education than mainstream
counterparts. Because of this inequality,
the Court found that the students’ education did not give them access to the type
of career they wanted and created de facto
segregation from the wider population.
The applicants also alleged that the tests
used to identify children for placement in
these schools were outdated and culturally
biased in their application. To this end,
the petitioners argued that the tests were
designed by the state to segregate Roma
children from the rest of the population.
Because of this, the petitioners argued that
education of Roma children in these remedial schools constituted ethnic discrimination by relegating them to a lesser form of
schooling. Although the government did not
dispute the racial bias in at least some of
the tests used, it argued that an alternative
examination would compensate for cultural
bias. The government also claimed that the
over representation of Roma children in
the special schools resulted from deficiencies tied to their own cultural upbringing,
which the government contended is a factor outside the scope of the right to education. However, the Court flatly rejected this
argument.
In decisions such as in Dahlab v.
Switzerland (2001), the Court has ruled
that a person’s right to religious freedom
is mitigated by work place duties, such as
in declining to protect a teacher’s right to
wear a head scarf in class, as in Dahlab.
Furthermore, the Court has held in cases
such as Stedman v. United Kingdom (1997)
that because an employee has the freedom
to choose their employment, their right
to religious freedom is not automatically
obstructed by workplace requirements
that touch on religion, such as in signing
a contract for a job that requires work
on Sunday, as in Stedman. In the Eweida
judgment, the Court made a stronger
statement for personal religious freedom
and held that it is relevant to the principle
of equality, and an employer’s policies that
impinges upon religious freedom must
be justified. Here, the Court weighed the
employer’s interests and the employee’s
ability to resign against the appropriateness
of the restriction upon religious freedom. The
Court affirmed the states’ wide discretion
in reconciling these countervailing rights,
and in many cases, this wide discretion
provided by the Court will give states
the ultimate decision for balancing these
divergent rights.
Roma Children’s Wrongful
Placement in Special Schools is
Discriminatory
Hungary’s segregation of its education
system based on students’ mental disabilities violates the right to education
and freedom from discrimination, according to the European Court for Human
Rights (ECtHR, Court) Chamber ruling
in Horváth and Kiss v. Hungary. The case
Ruling in favor of the applicants, the
Court found a foundational violation of
Article 2 of Protocol No. 1 (right to education) that and a complimentary violation of
Article 14 (prohibition of discrimination)
of the European Convention on Human
Rights (ECHR, Convention). The Court
recognized that Hungary has a long history of placing Roma children in special
schools, and that the authorities failed to
take into account both Roma children’s, and
the petitioners’ specific needs as members
of a disadvantaged and historically marginalized group. Furthermore, the Court
agreed that Roma children have continually been overrepresented in the remedial
77
schools. The Court has clearly stated that
states cannot implement policies that are
prejudicial to one ethnic group, and despite
the government’s assertions, the ECtHR
found that there was at least a “danger” that
the education tests were culturally biased
and lacked sufficient “special safeguards”
to protect against misdiagnosis. The Court
concluded that there are “positive obligations” on a state to address and remedy
practices that lead to discriminatory results,
particularly when that discrimination
is rooted in a historical discrimination
against the group. Furthermore, the Court
found that Hungary had failed to “provide the necessary safeguards against
misdiagnosis.”
The Horváth and Kiss judgment establishes that public education systems must
enact “particularly stringent” positive measures to protect pupils that have suffered
past discrimination that has continuing
effects, and the state must address structural disadvantages within school systems.
According to the Court, it is the state’s
burden to demonstrate that the placement
tests used, as well as their application in
practice, are capable of “fairly and objectively” determining the mental capacity
of the applicants without undue influence
by cultural bias. In a procedural issue, the
decision reinforced that reliable statistical
evidence may establish prima facie
discrimination and shift the burden of
proof to the state. Finally, this judgment
reaffirmed that in the public education
setting, it is not necessary to prove discriminatory intent to find discrimination.
This judgment is another in a series of
cases highlighting the broad violation of
the human rights of Roma children across
Europe. The Court found in the present
case that the education of Roma children
under an inferior curriculum has limited
their future educational opportunities by
coercing them to pursue their studies in
“special vocational secondary schools.”
This limits their ability to obtain higher
education, and as a consequence, the education received did not satisfy the positive
obligations of the State to undo a history
of racial segregation in education. By
stating that “the State has specific positive obligations to avoid the perpetuation
of past discrimination or discriminative
practices disguised in allegedly neutral
tests,” this judgment is part of a broader
recognition of the often problematic and
discriminatory situation of Roma children
in Hungary and other parts of Europe.
Antonia Latsch, a 2013 L.L.M. recipient
from the American University Washington
Human Rights Brief.
Inter-American System
Country Visits Continue to Serve
as Vital Tool for Human Rights
Protection in the Americas
In its latest country report, the InterAmerican Commission on Human Rights
(IACHR, Commission) reflected on its
2008 country visit to Jamaica and raised
grave concerns regarding the high levels
of continued violence inside the country.
The report suggests the importance of
country visits in order to collect evidence,
conduct interviews, and learn more about
the human rights situation in the Member
State being visited.
Under Article 106 of the Organization
of American States (OAS) Charter, the
Commission’s mandate is to “promote
the observance and protection of
human rights.” To meet its mandate
the Commission undertakes a variety of
activities, including investigating petitions,
publishing human rights reports, conducting in-country visits, and presenting cases
to the Inter-American Court of Human
Rights (IACtHR, Court). Since 1961, the
IACHR has organized country visits in
order to conduct in-depth observations.
Member States must grant permission for
these visits. In order for a visit to count as
an in loco visit, in 2001 it was settled that at
least two Commissioners must participate
in the visit; an in loco visit also requires
Commissioners visit in their capacity as
Commissioner, and not in their Rapporteur
capacity. In comparison, country visits
may include less than the two required
Commissioners and the visits often relate
to the thematic rapporteurships. Since its
inception, the Commission has conducted
92 in loco visits.
The Commission’s Strategic Plan stated
that it hoped to conduct two in loco
visits per year, for a total of ten such
visits between 2011 and 2015. Thus far, it
appears that there has been one in loco visit
since the Strategic Plan was announced in
2011, but there has been a greater number
of country visits, including three visits
in 2011, two in 2012, and already one
in 2013. In loco visits generally lead to
a published report on the situation on
human rights observed, a document that is
distributed to the Permanent Council and
General Assembly of the OAS.
Jamaica, Suriname, and Colombia all
serve as recent case studies and highlight
the value of country visits as an avenue
for promoting and protecting human
rights. Since at least 2008 the Commission
has closely monitored the human rights
situation in Jamaica. That year, the IACHR
conducted an in loco visit to Jamaica
in which Commissioners met with government officials and civil society to
conduct independent investigations into
alleged human rights violations, including
assertions of arbitrary detentions, high
crime rates, and failures to investigate by
the police. The Commission has continued to monitor human rights in Jamaica
by holding public hearings and most
recently publishing a report. The report
summarizes the Commission’s four-year
observations, and though it welcomes
Jamaica’s reports that homicides have
decreased, the Commission stated that
it remains extremely concerned at the
high level of insecurity. Furthermore, the
Commission expressed concern that the
violence primarily affects the urban poor.
For its part, Jamaica conceded that it
continues to battle high levels of violence,
but stated that it is doing what it can given
financial constraints.
The Commission is also observing
human rights in Suriname, where it conducted its most recent in loco visit. The
visit’s goal was to examine the rights
of women and indigenous peoples in
Suriname. Regarding indigenous rights,
Commissioner Dinah Shelton, Rapporteur
on the Rights of Indigenous Peoples, reinforced the need for Suriname to fully comply
with the Moiwana and Saramaka judgments
of the IACtHR and underscored the need
for the national government to consult with
local communities on mining projects.
On the rights of women, Commissioner
Tracy Robinson, Rapporteur on the Rights
of Women, applauded the Suriname government for its recent legislative efforts
to protect women and promote equality.
She simultaneously stressed the need to
put financial and human resources behind
these policies to ensure follow-through
and increase inclusion of women across
private and public sectors as well as in
78
political decision-making. The visit also
raised concerns regarding discrimination
against LGBTI communities in Suriname,
and Commissioner Robinson called on
authorities to create a government policy
that advances gender equality and protects
against discrimination.
Lastly, during a visit to Colombia,
the Commission stated that it appreciated
the government’s efforts to protect human
rights after five decades of violence.
However, the Commission also heard from
members of civil society who stressed
“the execution of protection measures in
the interior of the country and in rural areas
represents greater challenges when compared to the measures implemented in urban
areas.” Thus, through a country visit the
Commission learned about the government’s
progress, and confirmed implementation
through dialogue with civil society.
Today, scholars believe that visits in
loco are a way for Member States to
show cooperation with the Inter-American
System, and for the Commission to collect
evidence before a case and improve the
quality of its decisions. “The Commission
visits and the follow-up reports create powerful incentives for states to consider the
international implications of their human
rights policies. In loco visits and country
reports, therefore, significantly contribute to the Commission’s work in dealing
with gross and mass violations of rights,”
wrote Claudio Grossman, current Chair
of the United Nations Committee Against
Torture and IACHR Commissioner from
1994-2001.
Inter-American Court Determines
that Dominican Republic Used
Excessive Force Against Haitian
Migrants
Following more than two decades of
tensions between Haitian descendants and
the Dominican Republic, at least one group
of Haitians now has a judgment against the
Dominican Republic. The Inter-American
Court of Human Rights (IACtHR, Court),
in its decision in the Case of Nadege
Dorzema et al. v. Dominican Republic,
said that seven people died and several
more were seriously injured at the hands
of the Dominican Republic’s military
officers when they forcefully expelled
Haitian migrants from the country.
The IACtHR decision, announced in
November 2012, cited violations of the
American Convention on Human Rights
(American Convention). The Court noted
that the Dominican Republic originally
tried the case by a military tribunal, which
acquitted the officers. The Court found
violations of the right to life (Article
4) regarding the seven people who died
as a result of excessive force, as well as a
violation of the right to personal integrity
(Article 5) concerning those who survived but were injured by military police.
In particular, the Court focused on the
procedures for detention and the expulsion
of Haitian migrants from the Dominican
Republic. The Court found that some of
the victims were illegally and arbitrarily
detained, which violated the right to personal liberty (Article 7). Furthermore,
the expelled victims received none of the
internationally or domestically recognized
protections inherent in removal proceedings, a violation of judicial protection
(Article 25). The collective expulsion of
migrants likewise violated the right to
freedom of movement and of residence
(Article 22). Lastly the Court found that
there was de facto discrimination against
the victims because of their migrant status,
and that the blanket discrimination is a violation of the obligation to respect the rights
guaranteed by the American Convention
(Article 1).
The latest decision involving the
Dominican Republic follows a string of
constant and regular provisional measures
granted by the Court that were focused
on protecting Haitian migrants inside the
Dominican Republic. The Inter-American
Human Rights System has long raised concerns about treatment of Haitians inside
the Dominican Republic, a sentiment
noted by the report following the InterAmerican Commission on Human Rights’
(IACHR, Commission) visit to the island
nation in 1991. Likewise, in 1999, the
Commission published a country report
that expressed apprehension about Haitian
migrant workers and their families. Also in
1999, the IACHR received a petition alleging that mass expulsions of Haitians were
taking place in the Dominican Republic.
According to the petition, people were
expelled at high rates with no opportunity
to inspect the victims’ documents or familial ties to the Dominican Republic, and the
victims believed they were being selected
by the color of their skin. Thereafter,
representatives of Haiti and the Dominican
Republic entered into agreement that the
Dominican Republic would alert Haiti
when its nationals were deported.
At a public hearing on the Com
mission’s request for provisional measures
for Haitians and Dominicans of Haitian
descent in the Dominican Republic
before the IACtHR in August 2000, the
Commission argued that although immigration law is within the sovereign authority
of each country, each state must conduct
its immigration policy with restraint, and
if subjecting someone to deportation, the
state must do so within the constraints of
the law. For its part, at the same public
hearing in 2000, the Dominican Republic
contested that its immigration practices
respected due process and that it needed
to repatriate those Haitians illegally present in the country. Acting on the briefs,
reports, and testimony from this public
hearing, the Court ordered a provisional
measure to protect certain named individuals from being deported, and permitted
other deported individuals to return to the
Dominican Republic. The Court also asked
the Commission and the State to report
with frequent updates on the situation.
In 2006, the Court expressed concern
regarding a judgment by the Supreme Court
of Justice of the Dominican Republic,
which found the “Commission for the
Implementation of Provisional Measures”
79
unconstitutional and invalidated the
procedures established to implement
IACtHR provisional measures. Thus, the
IACtHR expressed anxiety that no other
mechanism was in place to implement
provisional measures. In 2010, following
the earthquake in Haiti, some sources cited
as much as a fifteen percent increase in
the Haitian population in the Dominican
Republic, making the treatment of migrants
a continuing issue.
By 2012, the IACtHR acknowledged
improvements by the Dominican Republic
and praised its appointment of state authorities entrusted with the implementation of
provisional measures. However, the Court
raised concern that Dominican authorities
did not respond to requests from the Court.
In Nadege Dorzema et al. v. Dominican
Republic, the IACtHR ordered that the
Dominican Republic undertake reparations. The reparations include ordering
the investigation be reopened, that the
authorities determine the whereabouts of
the victims’ bodies, that the state offer
medical and psychological support, that
the state accept public responsibility, that
the state provide training on the rights of
migrants and the use of force, and that the
state pay reparations to the victims.
In the twelve-year span from 20002012, the IACtHR granted ten provisional
measures addressing the protection of
Haitians or Dominicans of Haitian descent
now in the Dominican Republic. The most
recent decision of the IACtHR demonstrates that both the Commission and
Court continue to monitor the treatment
of Haitian migrants inside the Dominican
Republic.
Jessica Alatorre, a J.D. candidate at the
Rights Brief.
Establishing a Complaint
Procedure for Economic, Social,
and Cultural Rights
Critics often assert that the International
Covenant on Economic, Social and Cultural
Rights (ICESCR) is an aspirational
document, as it calls for the progressive
realization of its provisions to the maximum of States Parties’ available resources.
But, while this limiting language persists,
the UN High Commissioner for Human
Rights and a coalition of leading human
rights NGOs have hailed the news that
soon the rights enshrined in the ICESCR
will become justiciable at the international level. On May 5, 2013, the Optional
Protocol to the International Covenant
on Economic, Social and Cultural
Rights (Optional Protocol) entered into
force. Under the Optional Protocol, the
Committee on Economic, Social, and
Cultural Rights (Committee) will have the
power to receive and consider complaints
against States Parties from other States
Parties as well as individuals or groups
within their jurisdiction.
The UN General Assembly adopted the
Optional Protocol on December 10, 2008,
the sixtieth anniversary of the adoption
of the Universal Declaration of Human
Rights (UDHR). The UDHR linked civil,
political, economic, social, and cultural
rights as one universal and interdependent set of rights. But, the Cold War and
its East/West divide stymied efforts to
translate the UDHR into a single binding
treaty. As a result, there arose two core
treaties, the International Covenant on
Civil and Political Rights (ICCPR) and the
ICESCR, with the United States and its
allies seeking the superiority of civil and
political rights over economic, social, and
cultural rights and the Soviet Union and its
allies seeking the reverse. As the North/
South divide eclipsed the East/West divide
at the conclusion of the Cold War, this
artificial hierarchy continued. However, as
UN High Commissioner for Human Rights
Navi Pillay noted, by choosing to adopt
the Optional Protocol on the UDHR’s anniversary the General Assembly reaffirmed
the equal and interdependent nature
of civil, political, economic, social, and
cultural rights.
The Optional Protocol entered into
force earlier this year when Uruguay
entered the necessary tenth ratification,
joining Argentina, Bolivia, Bosnia and
Herzegovina, Ecuador, El Salvador,
Mongolia, Portugal, Slovakia, and Spain.
In addition, 32 other States Parties
have signed but not yet ratified the
Optional Protocol.
The entry into force of the Optional
Protocol means the Committee and
impacted individuals and groups will
soon enjoy an individual complaints
procedure similar to the systems in place
for the UN treaty bodies overseeing the
ICCPR, the Convention on the Elimination
of Discrimination Against Women,
the Convention Against Torture, the
Convention on the Elimination of Racial
Discrimination, the Convention on the
Rights of Persons with Disabilities, and the
International Convention for the Protection
from Enforced Disappearance. As Pillay
stated, because of this new procedure “a
jurisprudence will now be developed that
will help define the scope of application
of economic, social and cultural rights
and outline adequate remedies for victims.”
Under the Optional Protocol, the
Committee can receive two types of
communications. First, it can receive
communications from individuals or
groups claiming a violation of a right
under the ICESCR. However, the Optional
Protocol contains procedures to respect
the State Party’s legal system and may
only consider communications after the
exhaustion of domestic remedies, unless
they have been “unreasonably prolonged.”
Second, the Committee can consider
inter-state communications when a State
Party believes that another State Party
failed to fulfill its obligations under the
ICESCR. Like the individual complaint
procedure, the second option requires the
exhaustion of domestic remedies before
the Committee can take up the issue.
By establishing procedures that defer,
in the first instance, to States Parties’ legal
80
systems, the creation of the complaint
procedure under the Optional Protocol
creates an additional incentive for States
Parties to strengthen their legal systems to
better ensure the realization of economic,
social, and cultural rights. In addition,
the Optional Protocol provides a forum
for developing jurisprudence concerning
standards for economic, social, and
cultural rights. Finally, the Optional
Protocol, as it increases its ratification
count, will serve as a mechanism to further
erode the artificial divide and hierarchy
between civil and political, and economic,
social, and cultural rights. In doing so, it
can help move the international human
rights system back to the universality and
interdependence of the UDHR.
Environmental Rights are Human
Rights, and Vice Versa
When the “worst drought in 60 years”
struck eastern Africa in 2011, over ten
million people were in need of emergency
food aid. When Typhoon Bopha struck
the Philippines last December, more than
1,000 people lost their lives. To address
these and other environmental concerns
at the local, national, and international
level, communities around the world are
utilizing the international human rights
framework. Thus, human rights and the
environment are interrelated and interdependent. John H. Knox, the United Nations
Independent Expert on human rights and
the environment, reinforced this conclusion in his recent report to the Human
Rights Council. In addition, he stated that
there now exists an “explicit new right”
to a healthy environment.
Because science did not recognize
the negative impact of human activity on
the environment, environmental rights were
omitted from the Universal Declaration
of Human Rights (UDHR) when it was
adopted in 1948. But, as scientific understanding of the environment increased over
the following decades, so too did the connection between a healthy environment and
the realization of human rights. As Knox
stated, if the UDHR were drafted today, it
is “easy to imagine” that it would include
an explicit right to a healthy environment.
In fact, at the national and regional level
this overt recognition has already occurred.
More than ninety states have added explicit
environmental rights into their constitutions. A number of regional human rights
instruments have also recognized this right,
including the African Charter on Human
and Peoples’ Rights (Article 24), the
1988 Additional Protocol to the American
Convention on Human Rights (Protocol of
San Salvador) (Article 11), the Protocol
to the African Charter on Human and
Peoples’ Rights on the Rights of Women
in Africa (Articles 18-19), and the Arab
Charter on Human Rights (Article 38).
Furthermore, while international human
rights treaties have not explicitly codified
the “right to a healthy environment,” some
explicitly refer to threats posed by the
environment to the realization of human
rights. The Convention on the Rights of
the Child, for example, mandates that
States Parties “take appropriate measures
. . . [t]o combat disease and malnutrition
. . . through the provision of adequate
nutritious foods and clean drinking-water,
taking into consideration the dangers and
risks of environmental pollution.”
Knox discussed the need for states
to protect environmental rights defenders from physical attacks, threats, and
intimidation at the hands of both state and
non-state actors. Indeed, Knox found that
such actions hurt not only the environ
mental rights defenders, but also the
environment they are trying to protect
and “all those whose full enjoyment
of human rights depends on that environment.” Knox’s report also highlighted
the importance of ensuring human rights
that are vital to the furtherance of environmental rights, including the rights to
freedom of expression and association,
the rights to information and to participate
in government, and the right to seek remedies through the judicial process. Indeed,
in discussing the decisions of the InterAmerican, African, and European regional
human rights tribunals, Knox noted that
ensuring these rights will “produce[] a
healthier environment” which will “contribute[] to a higher degree of compliance
with [] rights such as rights to life, health,
property[,] and privacy.”
Second, how do these human rights
obligations apply to non-state actors,
such as corporations? A report by the UN
Special Representative of the SecretaryGeneral on the issue of human rights
and transnational corporations and other
business enterprises found that out of
300 alleged corporate-related human rights
abuses reviewed, “nearly a third of cases
alleged environmental harms that had
corresponding impacts on human rights.”
Knox stated that while states’ obligation to
protect human rights extends to the actions
of non-state actors, and that this obligation
extends to “infringement from environmental harm,” the “specific application
of this obligation in the environmental
context needs closer examination.”
But, Knox also stated that two areas
vital to ensuring a healthy environment are
in need of further exploration. First, how
does international human rights law apply
to transboundary and global environmental
concerns? In a 2011 report on human
rights and the environment, the Office of
the High Commissioner of Human Rights
found that “[o]ne country’s pollution can
become another country’s environmental
and human rights problem.” But, because
human rights treaties use varying language
to define their reach, there is need for
increased clarification on this question
in spite of the “heightened attention to
the extraterritoriality of human rights
obligations.”
While global leaders argue over how
to balance development, profit, and environmental stewardship, within international human rights law a consensus has
formed—there now exists a right to a
healthy environment. Though the reach of
the obligation on states vis-à-vis the right
to a healthy environment needs further
exploration, the takeaway of this report
is clear—the realization of environmental
rights is necessary for the realization of
human rights, and vice versa.
81
Frank Knaack, a J.D. candidate at the
Rights Brief.
Center and Faculty Updates
Center News
The Center for Human Rights &
Humanitarian Law was established in
1990 to provide scholarship and support
for human rights initiatives internationally
and within the United States. Located at
of Law, 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.
In addition to a variety of core projects,
the Center provides ongoing student
programming, which includes skills
development seminars, lunchtime learning
sessions, and a robust program of more
than fifty conferences and events per year.
The following is a brief update of some of
the most recent developments at the Center
for Human Rights & Humanitarian Law.
Trial Observation Team Sent
to Monitor Genocide Trial in
Guatemala
Program on Human Rights
Education
The Center’s Program on Human
Rights Education aims to promote interest
in and enhance understanding of human
rights through teaching, academic study,
and innovative training opportunities.
Center and ASIL’s Lieber Society on
Armed Conflict Announce Winners
of Third Annual International
Humanitarian Law Student Writing
Competition and Host Conference
on Intersection of Disability and IHL
A high level panel
of IHL experts selected
the winners of the third
annual
International
Humanitarian Law Student
Writing
Competition,
which received 42 submissions from law students
representing eleven different countries. The
Competition is designed
to promote interest and
enhance scholarship in
the field of IHL among
law students around the
world and culminated
in a conference held on
April 3, 2013, at WCL.
The winners presented
their papers in discussion with a panel
of high level IHL experts from around
the world.
First-place winner Antoine Perret is a
PhD law student at the European University
Institute in Florence, Italy. His winning paper
is titled, In the Crosshairs: The Spirit of
International Humanitarian Law in the War on
Drugs. Second-place winner Sharad Bansal
is a law student at the National Law School
of India University in Bangalore, India. His
winning paper is titled, Individuals’ Right to
Reparations for Violations of International
Humanitarian Law.
The Center sent Human Rights Brief
Center Executive Director Hadar Harris and (Ret.) Col. Dick
Co-Editor-in-Chief Christina Fetterhoff
Jackson, Chairperson of the ASIL Lieber Society on the Law of
(2L) and UNROW Impact Litigation Clinic
Armed Conflict, with first-place winner Antoine Perret
Director Ali Beydoun to Guatemala to
observe the trial of former President
As part of the conference, the
José Efraín Ríos Montt and former
Center convenes an annual discusChief of Military Intelligence José
sion of emerging intersections in
Mauricio Rodríguez Sánchez on
international law. This year, the
charges of Genocide. The trial was
conversation focused on the cutthe first domestic prosecution of a
ting-edge intersection of IHL and
former head of state in a domestic
Disability Rights, featuring Janet
court for charges of genocide. The
Lord, Senior Partner of BlueLaw
observer team was in Guatemala for
International, LLP; Stephanie
five days and sent Twitter dispatches
Ortoleva, Founder and President of
and original legal analysis pieces
Women Enabled and former attorney
which were published through the
for the U.S. Department of State; and
Human Rights Brief. The American
Center Executive Director Hadar
University Washington College of
Harris. The webcast of the discusLaw is one of the only (if not the
sion can be downloaded at www.
only) law school in the United
WCLCenterforHR.org.
States to send student observers to
the trial. The Special Coverage of
the Ríos Montt trial can be found Christina Fetterhoff and Ali Beydoun at the Human Rights Plaza
in front of the courthouse in Guatemala City where the Ríos Montt
at www.hrbrief.org.
trial was held.
82
in hosting key human rights
faculty from these two law
schools.
Anti-Torture Initiative
The Center’s AntiTorture Initiative (ATI)
supports the mandate of
the United Nations Special
Rapporteur on Torture and
Other Cruel, Inhuman, and
Center Executive Director Hadar Harris and (Ret.) Col. Dick
Jackson, Chairperson of the ASIL Lieber Society on the Law of
Degrading Treatment or
Armed Conflict, with second-place winner Sharad Bansal
Punishment (SRT) through
engaging in follow-up activCenter’s Project on Human Rights ities and deepening the impact of his work
Education in Colombia Holds
throughout the world.
First Faculty Training Workshop
Cali, Colombia; Welcomes
Delegation of Colombian Human
Rights Faculty to WCL
in
The Center is leading an initiative to
partner with two law schools in Cali,
Colombia to help enhance their teaching
of human rights. The first of a series of
faculty training workshops in this project
was held February 14-16 at Universidad
Santiago de Cali and Pontificia Universidad
Javeriana Cali in Cali, Colombia. Center
Human Rights Education Program
Director Melissa del Aguila accompanied
Professors Jayesh Rathod and David
Baluarte who led an intensive three-day
workshop for key human rights faculty at
the two law schools with which the Center
will be working over the coming three
years as part of the Human Rights Teaching
and Research Partnership Program.
The United States Agency for International
Development (USAID), through Higher
Education for Development (HED),
sponsors this program.
In addition, from March 18-22, the
Center hosted its first study visit for
Colombian law faculty as part of this program. Visiting faculty from Universidad
Santiago de Cali and Pontificia Universidad
Javeriana Cali had the opportunity
to observe human rights courses and programming at WCL; had focused interaction
with WCL faculty teaching and conducting
research on international human rights law
issues; and met with attorneys and human
rights specialists from the Inter-American
Commission on Human Rights. WCL
Professors Richard Wilson, Macarena
Sáez, Jayesh Rathod, and David Baluarte
joined Center Human Rights Education
Program Director Melissa del Aguila and
Center Executive Director Hadar Harris
First-Ever Substantive
Follow-Up Report on UN Special
Rapporteur on Torture (SRT)
Recommendations Presented to
UN Human Rights Council
The ATI helped draft the first-ever
substantive follow-up report on recommendations by the UN Special Rapporteur
on Torture (SRT). The Special Rapporteur,
WCL Professor Juan Méndez, generated
these recommendations from his follow-up
visit to Uruguay in December 2012. The
ATI also helped prepare for the SRT’s
presentation of the report before the UN
Human Rights Council in March 2013.
This report provides a substantive analysis of efforts in Uruguay to implement
the SRT’s recommendations and provides
further recommendations for eliminating
torture and cruel, inhuman and degrading
treatment or punishment in that country. Published by the United Nations, the
report is available at www.antitorture.org.
SRT Presents Thematic Report on
Torture in Health Care Settings
to UN Human Rights Council
The SRT presented a thematic report
on torture in health care settings to the UN
Human Rights Council during its March
2013 session. The report, published by
the United Nations, was informed by a
two-day expert discussion convened by the
Center with a grant from the Open Society
Foundations. Professor Juan Méndez
also discussed the report with civil society organizations at a well-attended side
event in Geneva, which the ATI helped
coordinate. Participating organizations
included the Open Society Foundations,
Mental Disability Advocacy Center, and
the Center for Reproductive Rights.
SRT Participates in Inter-American
Commission on Human Rights’
Hearing on Solitary Confinement
in the Americas, Marking First
Time SRT Has Participated in
Commission Hearing
For the first time ever, the SRT
participated in a hearing before the InterAmerican Commission on Human Rights
(IACHR). The hearing, which took place in
March 2013 at the IACHR’s 147th session,
focused on solitary confinement in the
Americas. The ATI supported the request,
submission, and presentation of the SRT,
and collaborated with the American Civil
Liberties Union (ACLU) in requesting the
thematic hearing. Significantly, the IACHR
recently released a statement endorsing
the SRT’s recommendations calling for
banning prolonged solitary confinement
for the first time. The SRT’s thematic report
on solitary confinement can be found
at www.antitorture.org.
Colombian law faculty on a tour of WCL with students Diana Navas (2L) and Christina Fetterhoff (2L)
83
of Persons with Disabilities
in the United States
Bartlett to speak on local implementation
of international norms.
The Program on the Human Rights
of Persons with Disabilities seeks to build
a bridge between the human rights and
disability rights communities to expand
and strengthen implementation of the
United Nations Convention on the Rights
of Persons with Disabilities (CRPD).
The Center’s Program on Human
Rights in the United States strives to
promote the incorporation of international
human rights norms, language, and strategies into the work of advocates on behalf of
marginalized and vulnerable communities
in the United States. The Center seeks to
enhance the understanding of international
law and the ways that it can be applied in
social justice work in the U.S.
Ms. Bartlett was also invited to participate in a high-level panel entitled “Obama’s
Second Term: A Human Rights Approach
at Home and the United Nations” at the
UDC David A. Clarke School of Law on
January 23. Ms. Bartlett addressed the
successes and challenges thus far for the
Local Human Rights Lawyering Project, as
well as examples of local implementation
of international norms. Other panelists
included Chanrith Ang, Executive Director
of Khmer Kampuchea Krom Human
Rights Association in Cambodia; Kelly
C. Landry, Foreign Affairs Officer, U.S.
Department of State Bureau of Democracy,
Human Rights, and Labor Office of
Multilateral and Global Affairs; and Esme
Grant, Disability Rights Educator, U.S.
International Council on Disabilities.
Center Holds Training Workshop
to Promote Action and Advocacy
on the Rights of Persons with
Disabilities
On March 1, the Center held a day-long
training on using the Convention on the
Rights of Persons with Disabilities (CRPD)
for advocacy and action to promote human
rights of persons with disabilities. The
training, entitled Human Rights, Yes!,
was co-sponsored by One Billion Strong
(OBS) and was facilitated by disability
rights experts Janet Lord and Allison
DeFranco, who are part of the OBS
Human Rights Education Team.
Center Hosts Launch of National
Council on Disability Report
Examining the Accessibility of
Overseas Facilities and Programs
Funded by the U.S.
On March 21, the Center and the
National Council on Disability (NCD)
convened a lunchtime panel to mark the
launch of the NCD report, Toward the
Full Inclusion of People with Disabilities:
Examining the Accessibility of Overseas
Facilities and Programs Funded by the
United States. The report reviews U.S.
federal disability laws, the United States
Agency for International Development’s
(USAID) disability policy, and the
Convention on the Rights of Persons with
Disabilities (CRPD), and discusses their
application to U.S. foreign assistance
programs. The report provides recommendations to strengthen the operation
of the Department of State, USAID, and
the Department of Defense by ensuring
that the U.S. Government is accessible to
and inclusive of people with disabilities.
Panelists included representatives from
the Department of State, USAID, and the
report co-authors.
Over 120 Advocates Participate in
Online Briefing on Kiobel v. Royal
Dutch Petroleum One Week After
Decision is Handed Down by U.S.
Supreme Court
The Center hosted an online briefing on
the future of human rights litigation in U.S.
courts following the U.S. Supreme Court’s
decision in Kiobel v. Royal Dutch Petroleum.
The decision changes the possible application of the Alien Tort Statute and may limit
the types of cases which may be brought
in U.S. courts. The briefing featured Paul
Hoffman, lead counsel to Plaintiffs and
the lawyer who argued the case at the
Supreme Court; Katie Redford, Director
of EarthRights International; and WCL
Prof. Diane Orentlicher, former Deputy
Director of the Office of War Crimes at
the U.S. Department of State. Over 120
people joined the call, which was held one
week after the decision came down. The
briefing was co-sponsored by the Center,
the Columbia Human Rights Institute and
the WCL Program on International and
Comparative Environmental Law. The
recording of the event can be downloaded
at www.WCLCenterforHR.org.
Local Human Rights Lawyering
Project Director Presents at
High-Level Meetings at the U.S.
Department of Justice and at the
UDC David A. Clarke School of Law
On January 9, LHRL Project Director
Lauren E. Bartlett presented at a meeting
hosted by the U.S. Department of Justice’s
Access to Justice Initiative on the UN
Principles and Guidelines on Access to
Legal Aid in Criminal Justice Systems.
Participants included Tony West, Acting
Associate Attorney General of the United
States, and many other government and
non-profit leaders. The DOJ invited Ms.
84
Local Human Rights Lawyering
Project Launches National Social
Media Campaign
The LHRL recently launched a largescale social media campaign designed to
expand the work of the LHRL Project
among the legal services community
across the country. Every day for a month
the Local Human Rights Lawyering
Project posted tips for legal aid, public
defender, and other public interest attorneys on how to integrate human rights into
everyday work. Please join our campaign
and receive daily human rights tips by
“liking” us on Facebook (https://facebook.
com/LHRLawyering) or “following” us on
Twitter (@LHRLawyering).
Initiative for Human Rights
in Business
The Center’s Initiative for Human
Rights in Business is devoted to the
promotion of human rights and justice
for people adversely affected by business
and economic activity around the world.
The Initiative consists of 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 through
strategic engagement with industry leaders
and key stakeholders. FHP strives to
improve access to affordable food to those
at greatest risk of hunger resulting from
uncontrolled speculation in global commodity investments.
Initiative Co-Director Dr. Rebecca
DeWinter-Schmitt Participates in
Civil Society Drafting Conference
for International Code of
Conduct for Private Security
Service Providers in Montreux,
Switzerland
On February 19-22, Rebecca
DeWinter-Schmitt, Co-Director of the
Center’s Initiative for Human Rights
in Business (IHRIB), participated in
a conference to finalize the Montreux
“Articles of Association,” a document for
multi-stakeholder organizations to oversee
implementation of the International Code
of Conduct for Private Security Service
Providers (ICOC), which were released
by the Swiss government on January 30.
Civil society signatories recognize the
Association as a positive step towards
increasing transparency and disclosure
about the activities of the private security industry, holding security providers
accountable for human rights violations,
and providing one possible outlet to access
remedy for victims of rights abuses.
IHRIB Co-Directors Rebecca
DeWinter-Schmitt and John
Richardson Participate in
Conference on International
Commodity Price Fluctuations at
the International Monetary Fund
On March 20-21, Rebecca DeWinterSchmitt and John Richardson, the
Co-Directors of the IHRIB joined industry
leaders from around the world for a two-day
conference, Understanding International
Commodity Price Fluctuations, cosponsored by the Research Department of
the International Monetary Fund and the
Oxford Centre for the Analysis of Resource
Rich Economies at Oxford University.
Webcasts and podcasts of all Center
events are available for free download
at www.WCLCenterforHR.org.
Faculty Updates
Claudio Grossman is a Professor of
Law, Dean of the American University
Washington College of Law (WCL),
and the Raymond Geraldson Scholar for
International and Humanitarian Affairs.
Since 2008, Dean Grossman has served
as Chair of the United Nations Committee
Against Torture and in May 2012 he was
unanimously reelected chair for a third
consecutive term. He continues to serve
on the board of directors for the Robert
F. Kennedy Center for Justice & Human
Rights (RFK Center), as well as on the
RFK Center’s judging panel for the RFK
Human Rights Award, and on the board
of the International Association of Law
Schools.
On February 15, the North AmericanChilean Chamber of Commerce named
Dean Grossman the Chilean Academic
of the Year. Additionally, the Universidad
de Chile appointed Dean Grossman to
the Editorial Board of the International
Law Department of the Law School. Dean
Grossman also participated as a panelist
at the Organization of American States
at the Formal Panel Presentation of the
Report on the Rights of Persons Deprived
of Liberty in the Americas, Inter-American
Commission on Human Rights Rapporteur
on Persons Deprived of Liberty in the
Americas on March 15. In his role as
Dean of the Law School, Dean Grossman
co-organized, along with the Carter Center
and the Due Process of Law Foundation,
an informal private conversation with
President Jimmy Carter and Ambassadors
of the Organization of American States
(OAS) about the proposed reforms to the
Inter-American Human Rights System.
Dean Grossman gave an interview to
NTN 24 on February 14 on Argentina’s
agreement with Iran to establish a factfinding committee to investigate the 1994
bombing of the Asociación Mutual Israelita
Argentina (AMIA) in Buenos Aires. Dean
Grossman’s interview was subsequently
published in the La Nación newspaper on
February 13.
Susana SáCouto is a Professorial
Lecturer-in-Residence at WCL where
she teaches courses on advanced topics
in international criminal law and procedure, gender and human rights law,
and international legal responses to
conflict-based sexual and gender-based
violence. She is also the Director of the
War Crimes Research Office (WCRO)
and WCL’s Summer Law Program in The
Hague. Professor SáCouto served as the
co-chair of the Women’s International Law
Interest Group of the American Society for
International Law (2006-2009 term), and
was awarded The Women’s Law Center
85
22nd Annual Dorothy Beatty Memorial
Award for significant contributions to
women’s rights.
On February 20, Professor SáCouto
moderated a discussion on Examining the
United Nations War Crimes Commission:
Lessons from over 2,000 World War
Two-era Trials, hosted by the WCRO at
WCL. On March 18, she moderated a
discussion on Ongoing War Crimes and
Crimes Against Humanity Investigations
within Syria, a WCRO War Crimes
Speaker Series event held at WCL and
co-sponsored by the American Red Cross.
On April 4, she moderated a discussion
by Professor Larissa van den Herik from
the Grotius Centre for International Legal
Studies at Leiden University on The
Migration of International Criminal Law:
Moving Beyond the Court Rooms in The
Hague, a WCRO War Crimes Speaker
Series event held at WCL and co-sponsored by the Academy on Human Rights
and Humanitarian Law. On April 8, Prof.
SáCouto presented on a panel regarding
The International Criminal Court and the
Dynamics of Complementarity at the 2013
Samuel Dash Conference on Human Rights
entitled Jurisdiction for Mass Atrocities,
hosted by Georgetown University Law
Center’s Human Rights Institute.
Richard Wilson is a Professor of Law
and founding Director of the International
Human Rights Law Clinic at WCL.
Professor Wilson serves on the Board of
Ensaaf, a human rights NGO in India.
Professor Wilson has presented three cases
before the Inter-American Court of Human
Rights and authored friend-of-the-court
briefs on behalf of the European Union
in the United States Supreme Court successfully arguing that international law
prohibits capital punishment for juveniles
and for persons with mental retardation.
Professor Wilson published an article
entitled “Omar Khadr: Domestic and
International Litigation Strategies for a
Child in Armed Conflict” in the Santa
Clara Journal of International Law and
wrote a book review of Reimagining
Child Soldiers in International Law and
Policy by Mark Drumbl in Human Rights
Quarterly. Additionally, Professor Wilson
served as moderator on a panel hosted
by the Women’s Law Association at
Washington College of Law in March on
A Look at Current Trends and Cases of
Gender-Based Violence in the Americas.
He also gave an interview on Guantanamo
prisoners’ hunger strike for Press TV on
March 2, 2013.
Professor Wilson gave a guest lecture
on Dynamics of Conflict, Cooperation
and Negotiation: Guantanamo and other
Diplomatic Disasters at the Alfonso
X University in Madrid, Spain and a
lecture on Las clínicas jurídicas y la lucha
por los derechos: la recuperación de la
memoria histórica in Valencia, Spain in
March. In his role as an international
scholar, Professor Wilson conducted a site
visit on Law Faculty of the American
University of Central Asia for the Open
Society Foundation’s Higher Education
Support Program in Bishkek, Kyrgyzstan
in December.
Robert Goldman is Louis C.
James Scholar and Professor of Law at
Washington College of Law. He also serves
as Co-Director for the Center for Human
Rights and Humanitarian Law, and is a
faculty director of the War Crimes Research
Office. From 1996 to 2004, he was a
member of the Organization of American
States’ Inter-American Commission on
Human Rights, and its president in 1999.
From July 2004 to July 2005, Goldman
was the UN Human Rights Commission’s
Independent Expert on the protection of
human rights and fundamental freedoms
while countering terrorism. In October
2005, the International Commission of
Jurists (ICJ), the Geneva-based NGO,
named him one of the eight jurists on
the Eminent Jurists Panel on Terrorism,
Counter-Terrorism and Human Rights.
crime in international and domestic laws:
open issues, in Counter-Terrorism, Human
Rights and International Law: Meeting
the Challenges. In February 2013, she
served as a member of the Honor Jury
at the Academy on Human Rights and
Humanitarian Law Annual Human Rights
Essay Competition. Also, she served as a
judge for the International Humanitarian
Law Student Writing Competition organized by the Center for Human Rights and
Humanitarian Law at WCL. On February
22, 2013, she presented on “The jurisprudence of the Inter-American Court
of Human Rights: Challenges Ahead,” at
the Law School of Universidad Marista,
Mérida, Mexico. From March 13-15, 2013,
Professor Martin participated in a Faculty
Colloquium at the University of Buenos
Aires, where she presented on “Rape as
torture in the case-law of the Inter-American
Human Rights System.” Also, on March
2, 2013, Prof. Martin lectured on “The
Powers of the Inter-American Court of
Human Rights” for students of the Masters
in Human Rights Program at the Law
School of Universidad Sergio Arboleda in
Bogotá, Colombia. Furthermore, on April
12, 2013, she presented on “The debate
of the characterization of rape as torture
in international law: challenges ahead” for
a Faculty Colloquium at the Institute of
Technological Studies (ITAM) in Mexico,
and lectured on the “The Inter-American
Human Rights System” to students of
the Masters in Human Rights Program at
ITAM, from April 12-13, 2013.
Recently Professor Goldman was
reelected to a second term as a Com
missioner of the ICJ and reelected to
a third term as a member of the ICJ’s
Executive Committee. In April 2013,
Professor Goldman wrote an article entitled
Extraterritorial Application of the Rights
to Life and Personal Liberty, Including
Habeas Corpus, During Situations of
Armed Conflict that appeared as a chapter
in Research Handbook on Human Rights
and Humanitarian Law, edited by Robert
Kolb and published by Edward Elgar
Publishing.
Diego Rodríguez-Pinzón is a Pro
fessorial Lecturer in Residence and
Co-Director of the Academy on Human
Rights and Humanitarian Law at WCL.
His recent articles include Precautionary
Measures of the Inter-American
Commission on Human Rights: Legal
Status and Importance (Human Rights
Brief, Volume 20, Issue 2, Winter 2013);
and The Inter-American Commission on
Human Rights: Annotations about its
supervisory
role
(La
Comisión
Interamericana de Derechos Humanos:
Apuntes sobre su Labor de Supervisión),
published by the Escuela Libre de Derecho,
in Mexico City, Mexico (2013).
Claudia Martin is Co-Director of
American University WCL Academy on
Human Rights and Humanitarian Law
and Professorial Lecturer in Residence.
Professor Martin published Terrorism as a
He recently finalized a research project
with faculty of Gent University in Belgium.
The product of such endeavor is a comprehensive article exploring the interim measures of the Inter-American Commission
86
on Human Rights titled Precautionary
Measures issued by the Inter-American
Commission on Human Rights (with Clara
Burbano Herrera) which will be published
in a book entitled Preventing Violations
of Human Rights: Are Urgent, Interim or
Provisional Measures an Adequate Tool in
Human Rights Litigation?
On April 16, 2013, he partici
pated as panelist in the conference
“Litigation Before the UN Committee
against Torture: Strengthening This
Important Tool Against Torture.” He participated in a panel discussing the interim
measures of the Committee Against
Torture by providing a comparative
perspective with the Inter-American
Commission on Human Rights. The conference was co-sponsored by the World
Organization against Torture (OMCT) and
the Washington College of Law.
On April 22-26, 2013, Professor
Rodríguez-Pinzón participated once again
as invited faculty to teach the course “The
Inter-American Human Rights System” at
the University of Deusto in Bilbao, Spain.
The course is part of a collective academic
endeavor of a network of universities
including the following: the University
of Vienna in Austria, Catholic University
of Leuven in Belgium, the University of
Copenhagen in Denmark, the University
of Helsinki in Finland, the University
of Strasbourg in France, the University
of Hamburg in Germany, the National
University of Ireland Galway, Ca’Foscari
University of Venice in Italy, the
University of Coimbra in Portugal, Lund
University in Sweden, Utrecht University
in The Netherlands, and the University
of Nottingham in the United Kingdom,
among others.
Additionally, he is a correspondent for
the British periodical Butterworths Human
Rights Cases, covering the Americas,
and for the Netherlands Human Rights
Quarterly covering the Inter-American
System. He served as Ad Hoc Judge in the
Inter-American Court of Human Rights
between 2007 and 2011 and has worked
litigating cases before the Inter-American
and United Nations systems, as well as
providing advice to international organizations, non-governmental organizations,
academic institutions and governments.
Book Review
He Weifang, In the Name
of Justice: Striving for
the Rule of Law in China
(Brookings, 2012)
It is surprising that He Weifang is able
to express the value of judicial independence, democracy, and constitutionalism
in China, a country not known for a strong
foundation of freedom of expression. It is
correspondingly unsurprising that the law
professor has experienced consequences
for this outspokenness. He’s activism led
to a temporary transfer from his post at
Peking University in Bejing to Shihezi, a
remote town in northwest China, for two
years after he signed the reformist Charter
08 in 2008. The document drew the ire of
the Chinese government because it called
attention to deficient human rights standards in the country and called on officials
to protect freedoms of expression and
religion, and it demanded an independent
judiciary as well as the election of public
officials. He’s audacity in signing the
charter despite the risks personifies He’s
status as an outspoken law professor and
advocate for judicial reform and the protection of rights in China. In his book In
the Name of Justice—a collection of blog
posts, speeches, and letters—He presents a
record of his thoughts on reform in China.
The author advances the idea that a foundation of rule of law and constitutionalism
will create momentum towards political
reform and greater economic success for
the Middle Kingdom.
Professor He begins his analysis by
grounding it in China’s legal history, focusing on the factors that have inhibited judicial
development. For thousands of years the
highest officials held all legal authority.
On a national scale the emperor served as
the head of all branches of government;
he enacted and administered laws, and
resolved conflicts. On the local level, the
magistrates retained similar authority, acting as investigators and judges and answering only to the emperor. In He’s analysis,
this historical structure continues to guide
the modern Chinese system and influences
the centralization of authority that remains
an impediment to judicial reform in the
country. Serving as a further obstacle to
reform is the lack of a period of peace
that could allow for new paradigms to take
hold and grow. Unrest has marked China’s
history for most of the Twentieth Century,
when between the uprisings and the Cultural
Revolution the country has experienced a
total of only thirty peaceful years.
In He’s sketching of the development of
the Chinese system, the power structures
are not the only element building the
modern framework. His analysis also
examines Confucianism’s role in China’s
judicial structure. Thanks to his time
spent in Shihezi, He was able to commit
time to studying classic Confusion texts.
He identifies the divergence between
Neo-Confucianist thinkers, who believe
that traditional Chinese philosophies are
appropriate for cultural issues but Western
ideas such as democracy are appropriate
for solving institutional problems, and
traditional Confusianists, who believe only
Confucianism should be the foundation for
China’s judicial system. Here He appears to
align himself with the Neo-Confucianists,
advocating for an approach that draws
from the best of Confucianist and Western
ideas and taking issue with traditionalists
who prioritize filial piety above rule of law.
The theories explored in the book are
consistent with He’s overall work and
speeches on the subject of human rights
in the region. In a portion of the In the
Name of Justice that is a transcription
of a lecture given to students at his alma
mater, Southwest University of Political
Science and Law in Chongqing, He spoke
on constitutionalism, a theme that arises
frequently in his book. Because the book is
a collection of lectures and articles, some
of He’s most important points are woven
through multiple sections of the book. In
the speech He identifies two flaws with
China’s current constitutional framework
and these critiques are indicative of his
view that the Chinese government is failing
to protect human rights. First, the constitution has been poorly implemented because
there do exist rights that are guaranteed in
the text, but these provisions have not been
either enforced or promoted effectively.
The language protects freedom of expression, yet He argues that that the rights
87
cannot be fully actualized when privately
owned media is virtually non-existent.
He asks how it can be legal to suppress a
right that is guaranteed in the constitution.
Though he understands the government
leaders’ concern that free speech will lead
to political unrest, He believes that the
order gained by suppression is short-lived
and that the speech eventually leads to
greater economic development. In an
effort to persuade his intended audience,
He often finds an external benefit from
the enforcement of rights, but hidden in his
argument seems to be the acknowledgement that these rights are important on
their own.
The second flaw that He identifies
with the Chinese constitution is with its
design, which fails to reflect certain modern
western constitutional ideals, such as the
market economy and decentralized authority. According to He, the text was written
in the 1980s when the state was still
influenced by Mao’s Cultural Revolution
and strong crackdowns on insolent behavior were common. This influence persists
and even today it is believed that China
executes more prisoners than the rest of
the world combined, according to Amnesty
International. In the eyes of He, this practice is particularly egregious, especially
when used as punishment for economic
crimes. He is a strong believer that the
death penalty should be abolished, in
part because because it destroys personal dignity, and in the book He uses
anecdotes to portray the ineffectiveness
of capital punishment as well as torture.
Though he calls for its abolishment, He
seems to gloss over the practice in the
United States because of the relatively
low number of execution. It is clear that
He greatly respects Western ideas and
his adoration is pervasive when He discusses constitutionalism. For example, he
quotes a number of Western thinkers and
explores concepts like freedom of expression by distinguishing Chinese practice
from those of the United States by juxtaposing his homeland’s practice against
stories of public criticism of American
political leaders. It is thus striking that
He is willing to overlook the U.S. executions—which Amnesty tabulated at 43 in
2012—despite nearly universal condemnation of the practice. The UN Human
Rights Committee found in 2006 that the
United States unfairly targeted minority
groups for capital punishment, which
arguably involves a greater loss of dignity.
He likely values the dialogue on the issue
in the United States. Again connecting
the practice to China’s political reality, He
laments that there is no public debate on
capital punishment in China.
The prologue to In the Name of Justice
is He’s open letter concerning the events in
Chongqing that led to the political collapse
of Bo Xilai, the secretary of the Chinese
Communist Party (CCP) for the region,
and the resulting political fallout for the
CCP. The issue creates an effective prism
through which to view He’s conceptualization of the interplay between China’s judicial
and political processes. From 2009 through
2011, Chongqing police and judicial authorities worked together to speedily prosecute
thousands of criminals. Bo Xilai initially
received praise for his hard stance on crime,
but his tactics are considered by many to
have been severe and the trials under his
watch were marred by a lack of due process.
In a letter to the Chongqing police chief,
Wang Lijun, He urged authorities to respect
rule of law, which had been neglected during
Bo Xilai’s campaign. After the letter was
published, Wang Lijun left Chongqing and
sought asylum at an American consulate
and Bo Xilai was replaced amidst disgrace.
The impact of He’s letter is unclear, but his
reputation domestically, as a professor at one
of the top Universities in China and widely
read and respected blogger, and internationally, as one of Foreign Policy magazine’s
top global thinkers, is likely one of the
reasons that the government has not further
cracked down on his activism and he is able
to continue advocating for reform without
suffering greater consequences.
88
Though He might accurately be characterized as critical of China’s policies, it
would not be true to describe his critiques
as empty condemnation of political leaders. The book contains the manuscript from
a panel hosted by Southwest University
where He responds to a question about
China’s growing global unpopularity by
critiquing the state policy toward Tibet and
the press but then goes on to note a more
nuanced articulation that is often ignored
outside of China and that recognizes the
progress that has been made in the country,
saying that within the last fifty years
people with far less controversial views
than his own would have been imprisoned.
He quotes Mencius, a Confusianist who
presented the metaphor of the person who
becomes despondent because they were
not able to put out the flame of inhumanity
with a single glass of water. Instead, He
suggests that the issues facing China are
too complex for a single glass of water
but the issues can be solved quicker with
resolve. He’s ideas seem not to be an attack
on the status quo but a prescription on how
China can maintain its ascension.
Drew Mitnick, a J.D. candidate at the
of Law, reviewed In the Name of Justice:
Striving for the Rule of Law in China, for
the Human Rights Brief.
Alumni Profile
Fabiola Carrión,
JD/Licenciatura en Derecho ‘08
Fabiola Carrión understands the fear
that arises from armed conflict—she
grew up during the Peruvian civil war in
the 1980s. She would often hear bombs
explode while at school in the highlands
or while she was in downtown Lima.
As government employees, her parents
worked closely with individuals who were
killed or disappeared. Thus her appreciation for social justice developed during
her first-hand experience with conflict,
poverty, racism, and classism. Although
she was able to escape the fighting, many
were not so fortunate. It is estimated that
about 80,000 people died in the conflict in
Peru, which lasted from 1980 until 2000.
Directly experiencing the armed conflict
gave Fabiola a sense of duty to become a
human rights advocate working on criminal
justice, women’s rights and access to telecommunications. She is now Policy Counsel
for Access, a non-governmental organization
(NGO) focused on the protection of digital
rights in order to respond to the blockade of
Internet access around the world.
Before enrolling at the American
University Washington College of Law
(WCL), Fabiola knew that she wanted
to be a human rights advocate in Latin
America. As an undergraduate student at
the University of California, she majored
in Political Science and Latin American
Studies. She became a fellow with the
Congressional Hispanic Caucus Institute,
which selected her to work with the InterAmerican Commission on Human Rights
(IACHR, Commission). The experience
was eye-opening: she analyzed cases with
events that were strikingly similar to those
that she experienced as a child, such as a
case that involved the bombing of civilians in Tarata, Lima. She was able to
work closely with prominent human rights
advocates, including Nobel Prize recipient Rigoberta Menchú, a member of the
K’iche’ ethnic group who is renowned
for her efforts in increasing awareness of
the massacre of Guatemala’s indigenous
populations during that country’s civil
war. Fabiola also worked closely with
Santiago Canton, who was the Executive
telecommunications law for scholars in
Peru. Thanks to this experience, Fabiola
developed a firm understanding that access
to methods of communication is a fundamental right that reinforces other rights,
such as freedom to expression as well
as economic and cultural rights. Mobile
communication, for instance, has been a
great equalizer for access to information
for many Peruvians. Landline phones were
not available in the rain forest where she
spent her childhood, yet cell phones have
opened communication to parts of the
world that were previously inaccessible. In
her view, telecommunication is a tool for
human rights advocacy as well as a right
on its own. Information, Fabiola affirms, is
no longer a privilege of the elite.
Secretary of the IACHR and is now the
Director of the RFK Partners for Human
Rights at the Robert F. Kennedy Center
for Justice & Human Rights, as well as
with Susana Villarán, who at the time was
the Commission’s rapporteur on women’s
rights and is now the mayor of Lima.
Fabiola chose WCL because of the
school’s reputation for human rights and
its relationship with Latin America. While
in school, she worked for the Center for
Justice and International Law (CEJIL),
an NGO that coordinates much of the
litigation in the Inter-American System
of Human Rights (IAS), advocates for the
strengthening of the IAS, and empowers
human rights defenders. After finishing
at WCL—where she was a staff member
of the Human Rights Brief—and before
receiving a Licenciatura en Derecho, a
legal degree in Spain, she worked at Just
Detention International, an organization
that fights sexual abuse in detention
centers. While there she spearheaded a
program that exposed rape and torture during the Mexican government’s campaign
against the Zetas crime syndicate.
It was the relationships that she developed at WCL that led to her current role
as policy counsel working on digital due
process for Access. Professor Anthony
Varona, now Associate Dean of Faculty
and Academic Affairs, enlisted Fabiola
to help work on a project in which she
developed a curriculum on comparative
89
Her work on digital due process is
a natural extension of her work in telecommunications and her experience with
criminal justice, a foundation she developed working at the IACHR and during
a clerkship with Judge Joseph Maltese, a
New York state trial judge. She has also
worked directly on legislation, challenging
bills that included funding cuts to Internet
access or that prevented local governments
from installing broadband networks. She
trained legislators on telecommunications
policy across the country and promoted the
idea of legislation that increases security
and expression on the Web.
Fabiola and her fellow advocates have
created programs that seek to ensure
strong international awareness for access
to digital communication. In June of 2012
the UN Human Rights Council passed
Resolution 20/L.13 promoting human
rights on the Internet. In the words of
the Council, “The Internet is an issue of
increasing interest and importance as the
rapid pace of technological development
enables individuals all over the world
to use new information and communications technologies.” Currently Spain, Costa
Rica, France, Finland, Greece, and Estonia
have constitutional protections or other
laws ensuring Internet access. Fabiola not
only hopes that number increases but that
more countries realize the importance of
privacy on the Web and maintain a balance
between government interest in accessing
online information and individual privacy
interests.
Fabiola is optimistic about the effec
tiveness of her work and the future of
human rights advocacy, though she
believes the level of success will depend
on the ease of communication. With her
focus on digital due process, she encour
ages policy makers to ensure surveillance
practices conform to domestic and inter
national human rights standards. There
is a danger that human rights defenders,
which increasingly includes bloggers and
technologists, will continue to be targets
of attacks by governments that feel threat
ened by the advocates’ work. But she does
believe that Latin America in particular is
on a positive trajectory and could cham
pion access to information and economic
development, eventually setting a global
standard. Argentina, Bolivia, Brazil, Costa
Rica, Guatemala, Honduras, and Uruguay
have all signed Resolution L.13. Chile
enacted the first net neutrality law in the
world and Brazil is likely to pass the first
ever Internet Bill of Rights called Marco
Civil da Internet.
She tells those who are interested in
pursuing a career in human rights advo
cacy to not be dissuaded by the lack of
glamour or high-paying jobs. Instead, she
thinks people need to be true to their own
experiences, values, skills, and weaknesses
in order to be effective attorneys or profes
sionals. Personal experience, she insists,
separates the impassioned advocate from
the distant attorney. She thinks it is impor
tant to make strong personal connections
to people who have experience in human
rights and to pursue interests while perfect
ing one’s skills. Fabiola credits experi
ential programs—she participated in the
Inter-American Human Rights Moot Court
Competition—and her experience at a law
school that supported all of its students,
in particular students of color. Fabiola has
carried her experience with the IACHR,
her work with Dean Varona, as well as
her experiences from childhood with her
as she has progressed in her career as a
human rights advocate.
Drew Mitnick, a J.D. candidate at the
of Law, is the managing online editor for
the Human Rights Brief.
WAR CRimes
ReseARCh offiCe
Women And
i n t e R n At i o n A l
l A W p R o g RA m
l au n c h o f t h e
gender jurisprudence collections
The Gender Jurisprudence and International Criminal Law Project announces the
launch of a new website at www.genderjurisprudence.org. The site has been redesigned
to make it easier than ever to search our Gender Jurisprudence Collections (GJC),
a powerful database containing more than 26,000 documents including judgments,
decisions, orders, and other relevant documents issued by international, hybrid, and
select domestic criminal courts and tribunals that have been pre-screened, coded, and
made easily searchable for issues relating to sexual and gender-based violence.
www.genderjurisprudence.org
90
Alumni Profile
Amalia Greenberg Delgado
JD ‘09
Amalia Greenberg Delgado came to the
of Law (WCL) wanting to explore the
many areas of the law to help her become a
better advocate for human rights. Already
proactively working to bring social change,
Greenberg Delgado had started an organi
zation, Asylum Access, before law school
that is dedicated to making refugee rights
a reality in Africa, Asia and Latin America.
Greenberg Delgado sought to take advan
tage of the practical opportunities at WCL,
including the International Human Rights
Law Clinic and the various externships
and professional connections that the law
school offered. She credits these experi
ences, among others, as key to further
propelling her career in immigrants’ rights.
As an immigrant from Venezuela,
Greenberg Delgado endeavored to advo
cate for protections that immigrants
around the world were not afforded. To
pursue this end, she moved to Egypt and
worked for African and Middle East
Refugee Assistance (AMERA), where she
interviewed asylum seekers and prepared
legal claims for proceedings before the
UN High Commissioner for Refugees
(UNHCR). She loved her work, which
focused on Somali woman, and found her
self inspired by the impact of her efforts.
In her subsequent travels to Turkey, she
realized that the refugee legal services
available in Egypt were lacking in Turkey
and in most parts of the world.
After several months working in
Turkey, Greenberg Delgado was offered
a job in Ecuador to open a local office
in Quito for the Jesuit Refugee Service.
There, she developed projects with local
and international agencies to facilitate the
legal and social integration of refugees in
Ecuador by opening access to legal, health,
education and other services. A year
later, Greenberg Delgado was awarded a
Fulbright Scholarship to return to Turkey
and work with the Helsinki Citizens’
Assembly Refugee Legal Aid Project to
continue her work on improving refugee
rights. In Turkey, she conducted trainings
for local lawyers on international refugee
Customs Enforcement (ICE) workplace
raids that led to the deprivation of due
process rights and detention of undocu
mented workers, Greenberg Delgado pub
lished an article in the Human Rights
Brief entitled, “How ICE Threatens the
Ethical Responsibilities of Key Players in
Worksite Raids: Postville Study.”
law and legal aid, while providing legal
assistance to asylum seekers in the refugee
status determination process.
Greenberg Delgado’s experiences
in Egypt, Turkey, and Ecuador showed
her the importance of empowering refu
gees. In order to harness U.S. funding,
political, and legal support, she founded
Asylum Access, now a thriving nonprofit
organization with offices in the United
States, Ecuador, Thailand, and Tanzania.
Greenberg Delgado continues her work
with Asylum Access as a member of the
organization’s Board of Directors.
Greenberg Delgado came to WCL in
2006, where she continued her activism
and exploration of the many of the areas
of the law that influenced immigrants’
rights. Her first summer, she opened
Asylum Access’s first international “on
the ground” office in Quito, Ecuador. She
got an adjudicatory perspective extern
ing with the U.S. Immigration Court in
Arlington, Virginia, outside Washington,
DC. At both the DC Employment Justice
Center and United Food and Commercial
Workers International Union, she was
able to gain an understanding about
the implications of workers’ rights on
immigrant rights. She continued fostering
her growing knowledge of immigration
law through a clerkship her 2L sum
mer with the American Civil Liberties
Union (ACLU) Immigrants’ Rights Project
and by working with Professor Jayesh
Rathod as a Dean’s Fellow in her 2L year.
Following a series of U.S. Immigration and
91
One of her most rewarding experiences
was practicing as a Student Attorney in the
International Human Rights Law Clinic.
Together with her clinic partner, she rep
resented a Sudanese man who was seeking
withholding of removal and protection
under the Convention Against Torture. The
client was bi-polar and convicted of an
aggravated felony after he was found wan
dering through someone’s house during
a bipolar episode. The U.S. government
initiated removal proceedings to send him
back to Sudan. The client’s mental health
situation and his detention in an immigra
tion detention center four hours from the
law school created additional challenges
for Greenberg Delgado. Through the sup
port of her professors and the resources at
WCL, Greenberg Delgado and her clinic
partner achieved a grant of withholding of
removal. In his oral grant, the Judge stated
that he had been impressed by the work
put into the case, noting the importance of
providing pro bono legal aid—sentiments
Greenberg Delgado found particularly
motivating.
After her 2009 graduation, Greenberg
Delgado was awarded a Soros Justice
Advocacy Fellowship to work with the
ACLU of Northern California on the
policing of immigrant communities and
threats to individuals’ Fourth and Fifth
Amendment rights. There, she participated
in impact litigation to address police
abuses that occurred when police tried
to unlawfully enforce immigration laws.
She provided technical, legal, and KnowYour-Rights support for community leaders
to advocate for improved law enforce
ment practices, such as vehicle impounds
and checkpoints, and the DHS “Secure
Communities” program. She also devel
oped and led public education campaigns
with several media outlets to counter myths
about immigrants and crime.
After her fellowship ended, she worked
with Amnesty International (AI) as an
immigrants’ rights coordinator for the
United States southwest border region.
At AI she again served as a multi-faceted
advocate: visiting the border; researching
and publishing a report on the human
rights violations of individuals at the
border; training activists; advocating on
behalf of migrants facing deportation; and
drafting policy and legal analysis on local,
state, and national policies and laws.
While observing the borders in Texas,
New Mexico, and Arizona, Greenberg
Delgado was drawn to addressing the
complexities faced by people on either
side of the Mexico-United States border.
People are pushed by such negative forces
in their home country that they are willing to cross a dangerous border and be
subjected to terrible conditions and human
rights abuses as they cross the border. If
and once they make it across the border,
they face additional abuses at the hands of
police officers, employers, home owners,
and others who prey on undocumented
immigrants who are often too afraid to
assert their rights. In some cases migrants
at the Mexican border faced the same
plight as refugees with whom Greenberg
Delgado had worked in other border
regions—deportation before they were
granted their right to seek asylum.
After working at AI, Greenberg
Delgado wanted to get back to direct legal
services. Therefore, she worked as a Staff
Attorney at Community Legal Services in
East Palo Alto (CLSEPA) and most recently
at OneJustice where she works closely with
legal services organizations and pro bono
attorneys to launch legal clinics in rural
areas of California for underserved migrant
communities. Greenberg Delgado sees a
constant theme in her advocacy from the
time she first sat down with her refugee
client in Cairo. She states, “Individuals,
who cross borders fleeing persecution and
seeking a better life, have a unique resiliency and power to survive. The information
and courage they can gain through legal
services might be just what they need to
land and stay on their own two feet.”
92
WCL was an important part of
Greenberg Delgado’s success. She advises
that students can make the most of their
time spent at WCL by seeking a wide
variety of experiences in the law to hone
their skills as advocates and determine
where they are most passionate. She credits
networking and interning with different
types of organizations as the reason
she was able to identify her skillset and
develop a successful career route. She
urges current students to use the law
school resources—professors, clinics,
other students—to nourish these relationships. She has found that WCL’s public
interest-minded graduates stay in touch,
grow their skills together, and support each
other. She is grateful for the growing community of WCL grads bent on improving
the rights of marginalized populations and
supporting each other in pursuing this end.
Anna Naimark, a 2013 J.D. recipient
from the American University Washington
College of Law, is the social media editor
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.
Nonprofit Org.
U.S. Postage
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Hagerstown MD
Permit No. 93
Human Rights Brief
Center for Human Rights and Humanitarian Law
Washington College of Law
4801 Massachusetts Avenue, N.W.
Washington, D.C. 20016-8043
Phone (202) 274-4023
http://hrbrief.org
www.wcl.american.edu/humright/center
Green Inks

human rights brief - American University Washington College of Law

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