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Human
Rights
Brief
Volume 21 | Issue 2 | Spring 2014
hrbrief.org
Articles
2 Human Rights Violations by Peacekeeping Forces in Somalia
Richard Wilson & Emily Singer Hurvitz
9 Toward a More Lenient Law: Trends in Sentencing from the
European Court of Human Rights
Sarah King & Nina Kisić
16
State Obligations to Protect the Lives and Health of Women After
Abortion or Miscarriage
22
El Testimonio Ixil Pesa Más: Reflections on the Guatemalan
Genocide Trial One Year Later
Angie McCarthy
Christina Fetterhoff
Features
32
Moving Forward: A Reflection on Current Issues Facing
International Criminal Justice with Richard Goldstone
36
Bonded and Child Labor in Pakistan: Interview with
Human Rights Practitioner Pirbhu Lal Satyani
38
Book Review: Jonathan Crowe & Kylie Weston-Scheuber: Principles of International Humanitarian Law
39
Coverage of the 150th Period of Sessions of the Inter-American
Commission on Human Rights
45
Judgment Summaries: International Criminal Tribunals
Chelsea Zimmerman
Columns
49
Regions
63
Regional Human Rights Systems
68
Criminal Courts and Tribunals
70
Intergovernmental Organizations
Also in this Issue
72
Center and Faculty Updates
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 | Juan E. Méndez | Diane Orentlicher | Herman Schwartz | Richard J. Wilson
Letter
Letter from
from the
the Editors
Editors
F
or every issue of the Human Rights Brief, dozens of law students and
human rights practitioners come together and dedicate an enormous
amount of time and energy to ensure that the Brief provides readers
with even just a glimpse of the diverse human rights issues confronting
regions around the world. Through the wide array of columns and articles,
the Brief strives to serve as a forum for information exchange and debate.
Human rights defenders rely on tools, such as the Brief, to provide unbiased,
up-to-date information, which, in turn, empowers individuals to fight the
status quo, push forward, and fight injustice.
The Internet enables the constant exchange of real-time information and
can serve as a platform through which an individual can influence people
and states around the world. The Brief, with its mission statement to serve
the human rights advocates of the world through precise and current legal
analysis of human rights issues, finds itself at a crossroads, re-evaluating the
core values of this publication, which was started in 1994. In order to remain
true to those values, in the coming year, the Brief will launch a re-designed
HRBrief.org with around-the-clock coverage of human rights developments,
providing readers across the world one place for everything related to human
rights. In addition to increasing accessibility of the Brief’s coverage to places
where print issues could not reach, the Brief is also dedicated to ensuring all
of its content is reader-friendly for those who are visually impaired.
While change may be challenging, over the next few months, the Brief
will be navigating new ideas, new obstacles, and new innovations in order to
become the premiere human rights website for news, analysis, and resources.
The articles in this issue are similarly pushing and advocating for change,
pressuring states to fulfill their human rights obligations, and reminding us
of potential harm to individuals when states derogate from their obligations
to uphold and protect the fundamental rights of every citizen.
Professor Richard Wilson and Emily Singer Hurvitz highlight alleged
abuses of peacekeeping troops — focusing specifically on a case study
in Somalia — dissecting the complex legal framework under which these
troops operate. While the world often calls on peacekeeping troops to promote stability and protect human rights, little attention is paid to who the
troops are, what their obligations are, and which country is responsible for
any potential violations committed. Tackling these complex issues, Wilson
and Hurvitz challenge advocates to ensure accountability for victims who
have suffered at the hands of peacekeepers.
In the second article, Nina Kisić and Sarah King analyze the emerging
sentencing trend within the European Court of Human Rights (ECtHR,
Court), concluding that rather than focusing solely on punishment, the Court
is also prioritizing rehabilitation. Through this, the Court has reaffirmed the
principle of retroactive application of the more lenient sentence. Retroactive
application of detrimental laws that, in effect, strip away an individual’s
previously held right is widely discredited under international law and in the
majority of domestic systems. This trend within the ECtHR underscores the
notion that human rights transcend any alleged crime, and are rightfully due
to all individuals on the basis of their humanity.
In most countries, reproductive health has been highly politicized for
several decades, oftentimes leaving women in precarious health situations.
Angie McCarthy goes to the core of the issue, examining states’ legal obligations to ensure post-abortion care regardless of the legality of the abortion.
In these situations, women are subjected to frightening abuse and conditions at the hands of medical personnel. McCarthy provides human rights
advocates with concrete solutions to challenge the adequacy of women’s
health services.
In May 2013, former Co-Editor-in-Chief Christina Fetterhoff observed
the Guatemalan genocide trial of Efraín Ríos Montt and Mauricio Rodríguez
Sánchez. While there, Fetterhoff provided the Brief with instant updates,
commentary, and legal analysis. Now, one year later, Fetterhoff reflects
on the importance of the trial for Guatemalans, and the precedent it sets
for other nations struggling to come to terms with a difficult past. With
this piece, as well as last year’s coverage, the Brief has expanded global
knowledge and understanding of the trial, and will hopefully serve as a tool
in future trials. As the Brief progresses to an online platform, we hope more
advocates like Fetterhoff take advantage of the powerful voice of the Brief
when monumental human rights situations occur.
The Brief looks forward to embarking on this upcoming journey handin-hand
all of
you. Brief
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Human Rights Violations by
Peacekeeping Forces in Somalia
by Richard J. Wilson* and Emily Singer Hurvitz**
W
Introduction
Humanitarian Affairs reported that sexual violence is a pervasive problem throughout Somalia and that oftentimes the attacks
are carried out by armed men in uniform.8 The UN reported
that at least 1,700 people were affected by sexual violence in
Somalia in 2012.9
idespread sexual violence is occurring throughout
South-Central Somalia, and the perpetrators of this
violence are often alleged to be government security forces and military personnel from the African Union
Mission for Somalia (AMISOM).1 Within Somalia, there is
little recourse for victims of sexual violence, and human rights
practitioners are looking to international options as alternative
venues for seeking justice. This article uses the case of peacekeeping troops in Somalia perpetrating human rights violations
to explore the liability of peacekeepers and their home states
in these situations. It assumes, for
purposes of analysis here, that due
to their traditional immunities, the
international organizations involved in
providing the peacekeeping forces are
not themselves accountable for human
rights violations or criminal misconduct, but that issue is not explored
comprehensively in this article.
Somalia Background
Peacekeepers in General
Peacekeeping forces are generally deployed to areas of
conflict, or to post-conflict zones, with the goal of improving
the peacemaking process.10 When peacekeepers can preserve a
ceasefire between fighting parties, the chances of reaching a successful peace agreement may increase,
and post-conflict forces provide stability for the development of stable and
safe governmental operations.11 The
UN is a leader in peacekeeping missions, with sixteen peacekeeping operations currently deployed on four continents.12 Despite the sound record of
performance and the good intentions
of peacekeeping missions, international peacekeepers have been associated with criminal misconduct, including sexual violence. Crimes against
women and children have followed
UN peacekeeping operations in several locations,13 and the UN reported
that the entrance of peacekeeping troops into a conflict situation
has been associated with a rapid rise in child prostitution.14
Within Somalia, there is
little recourse for victims of
sexual violence, and human
rights practitioners are looking
to international options as
alternative venues for
seeking justice.
After the fall of President Siad
Barre in 1991, Somalia limped forward, a paradigmatic example of a
failed state with no functioning or
internationally recognized government.2 The state fell into two decades of lawlessness and fighting between rival clans.3 Drought and famine affected large
swaths of the population in 1992 and from 2010–2012 while
an Islamist insurgency caused extensive civil strife.4 In 2012,
a new government with international support took power, but
many Somalis remained internally displaced.5 After two decades
of armed conflict and famine, Somalia’s nascent political and
judicial institutions remain ineffective.6
Peacekeeping operations date back to the 1950s, but reports
of abuse by such forces have occurred only recently; the first
such report of sexual violence emerged in 1999, when Human
Rights Watch reported on sexual exploitation in Guinean refugee
camps.15 Since then, a stream of scholarship and UN activities
have criticized and analyzed the issue of peacekeeper accountability through the first decade of the 2000s.16 This work culminated with the recommendations of the UN Special Committee
on Peacekeeping Operations, a companion report from a
group of legal experts, and a Draft Convention on Criminal
Responsibility of Experts on Mission for the UN, all of which
were completed between 2005 and 2006.17 Of greatest relevance
to this writing is the common unchallenged conclusion of these
bodies: under the standard agreement between the UN and the
troop-contributing state, the behavior and punishment of military personnel are under the exclusive control of the troop-contributing state.18 Article 46 of the 1990 Model Status of Forces
Agreement (SOFA) provides that all UN peacekeeping staff are
Human rights monitors have reported a widespread risk of
rape and sexual violence for displaced Somali women and children.7 The United Nations (UN) Office for the Coordination of
* Richard J. Wilson is a professor of law and the founding director of
the International Human Rights Law Clinic at American University
Washington College of Law. Professor Wilson serves on the Board of
Directors of the Center for Human Rights and Humanitarian Law.
** Emily Singer Hurvitz is a J.D. candidate at American University
Washington College of Law and Managing Editor of the Human
Rights Brief.
2
for human rights violations and the prosecution of criminal
conduct. Prosecuting perpetrators of human rights violations is
generally easiest in the location where the crime was committed
because the evidence and witnesses are there. But this normal
procedure is often difficult to carry out, for the simple reason
that some states, such as Somalia,
have legal institutions that are too
fragile or unstable to permit local
prosecutions. When the UN begins
a new peacekeeping operation, it
establishes either a SOFA or a status of mission agreement (SOMA)
with the host country that governs
the obligations of the peacekeepers
to the host country and the rights,
privileges, and immunities of the
peacekeepers.21 These agreements
frequently provide for extensive
immunities for the peacekeepers’
conduct within the host state.22
Typically, an agreement will indicate that peacekeepers are only subject to criminal jurisdiction in
their own countries, rather than the jurisdiction of the host country or that of the operational commanders.23 The agreement may
also include provisions requiring peacekeepers to follow local
laws, but it is unlikely that a host state could enforce its laws on
the peacekeepers because the host state does not have criminal
jurisdiction over them.24 The reality is that states contributing
peacekeeping troops to UN missions rarely prosecute peacekeepers for crimes they commit in the host country.25 It seems
ironic that those charged with keeping the peace and protecting a
immune from legal process in respect to acts that they perform
in their official capacity, while Article 47(b) provides that if the
accused is a member of the military, he or she “shall be subject
to the exclusive jurisdiction of their respective participating
states in respect of any criminal offences which may be committed by them in [the host country or
territory].”19 While these rules are
among the most clear, the applicable law governing peacekeeping
operations is a web of complex and
often evolving interactions between
domestic and international norms,
with issues of privileges and immunities, extraterritorial jurisdiction,
and the interaction of international human rights law together
with that of humanitarian law and
international or domestic criminal
responsibility.
Despite the sound record
of performance and the good
intentions of peacekeeping
missions, international
peacekeepers have been associated
with criminal misconduct,
including sexual violence.
Peacekeepers operate in a complicated legal framework. Each
state contributes civilian advisors, police forces, and military
officials to serve as peacekeepers within a foreign jurisdiction, all under the operational command of an agreed-upon
outside organization. This complexity can negatively affect both
state responsibility for human rights violations and individual
accountability for crimes committed by peacekeepers. For example, UN Member States contribute UN peacekeepers, but the
peacekeepers work under the authority of the UN, not the home
government of the participating troops.20 Under the normal rules
of territorial jurisdiction, the host state would be responsible
IHH (Turkish Humanitarian Relief Foundation) relief effort in refugee camps in Somalia, August 2011.
3
population of civilians are often involved in victimizing this very
population and increasing strife despite their opposite mission.
to AMISOM in the African Commission on Human and Peoples’
Rights, but only time will tell how receptive, or how effective,
the African system will be for bringing justice to Somali victims.
AMISOM Peacekeepers
Victim Protection
Following the failed efforts of Somali and regional leadership to establish an African peacekeeping force for Somalia
in 2005,26 the UN authorized the African Union and the
Intergovernmental Authority on Development to deploy “a protection and training mission in Somalia.”27 The African Union
Peace and Security Council established AMISOM in January
2007 — with an initial mandate of six months — to provide
support for transitional institutions, facilitate humanitarian
operations, and create a stable
environment for development
in Somalia.28 The UN Security
Council officially authorized and
endorsed AMISOM in February
2007,29 and it has continued to
reauthorize the peacekeeping
mission — with the most recent
authorization set to expire in
October 2014. The current resolution approves troop strength in
Somalia exceeding 22,000 uniformed personnel.30
Another important element to consider in any criminal
prosecution is victim protection. Without mechanisms to ensure
their safety, it is unlikely that victims will come forward to bring
criminal cases. Many international bodies have taken steps to
ensure victim protection and support. The International Criminal
Court, for example, provides protection services through the
Rome Statute, the Rules of
Procedure and Evidence, and
the Regulations of the Court
and of the Registry.37 Both the
International Criminal Tribunal
for the Former Yugoslavia
(ICTY) and the International
Criminal Tribunal for Rwanda
(ICTR) have units dedicated to
supporting and protecting victims and witnesses.38 The Somali
government has not made protecting survivors easy; for example, in January 2013, the government arrested a woman who
alleged that security forces raped
her, along with the journalist who
reported on the allegations.39
Somalia’s traditional culture and
its history of clan-based governance with influences of Shariah
law coupled with a relatively weak justice sector, leads to an
environment that is not hospitable to victims of sexual violence.
[T]he applicable law governing
peacekeeping operations is a web
of complex and often evolving
interactions between domestic and
international norms, with issues
of privileges and immunities,
extraterritorial jurisdiction, and the
interaction of international human
rights law together with that of
humanitarian law and international or
domestic criminal responsibility.
The Transitional Federal
Government of the Somali
Republic (Somalia) and the
African Union signed a SOMA
in March 2007.31 Paragraph 54
of the agreement specifies, in
typical language, that all AMISOM personnel are immune from
legal process for any act performed in their official capacity.32
Paragraph 55(b) explains that military members of AMISOM
who commit crimes in Somalia are subject to the exclusive
jurisdiction of their home state.33 This provision suggests that
Somalia could not effectively prosecute a military member of
AMISOM for crimes that he or she commits within Somalia.
This is the case despite the provision of the agreement requiring
AMISOM personnel to respect Somalia’s laws and regulations,
a conflict of laws issue adding to the complexity of many peacekeeping missions.34 The agreement does outline some shared
responsibility between the Somali government and AMISOM
for the arrest, interrogation, and detention of AMISOM personnel for violations committed within Somalia,35 but the responsibility for prosecuting AMISOM personnel lies with the home
state of the AMISOM member.
State Responsibility for Peacekeeper Actions
The violation of international human rights obligations can
give rise to state responsibility for those violations. As noted
above, the states contributing troops are most likely to have
responsibility for violations committed by peacekeeping troops.
There are two key issues in this analysis: whether the state in
question exercises exclusive or effective control over its troops
in the receiving country, and whether human rights obligations
have extraterritorial application to the sending country. Recent
decisions in both the European Court of Human Rights40 and the
Inter-American human rights system41 suggest that human rights
obligations do apply extraterritorially when a state has effective
control over its military operations in a foreign country.
A recent decision by the Dutch Supreme Court held that the
Netherlands was responsible for the deaths of three Bosnian
Muslim men in the 1995 Srebrenica massacre.42 While working
for the UN peacekeeping mission, Dutch peacekeepers forced
the Bosnians to leave the safety of the UN compound during the
massacre in Srebrenica, and Bosnian-Serb forces killed them.43
The Dutch Supreme Court found that, under international law,
when a unit from a state is serving under the auspices of an international organization, its activities are attributable to the sending
state, the international organization, or both.44 In this case, the
Legal Liability for Peacekeeping Troops
Human rights groups have alleged that AMISOM troops
and local security forces alike have perpetrated acts of sexual
violence.36 With the SOMA provisions on immunity and homecountry prosecution of perpetrators, it is unlikely that Somalia
can prosecute any members of AMISOM for their commission
of sexual violence against Somali citizens. Somali victims of
sexual violence have additional claims for international human
rights violations against Somalia or the states contributing troops
4
Court held that though both the UN and the Dutch government
had some control over the troops in question, the Dutch government had “effective control” during the period that the acts in
question occurred and was therefore liable for the actions committed by the peacekeepers.45
This decision is important because it establishes that peacekeepers do not act in a legal vacuum and that immunity does
not necessarily extend to all UN or peacekeeping activities,
but only to those acts legitimately performed in the mission’s
official capacity.46 Though this decision does not constitute
binding precedent outside of the Netherlands, it could be an
indication that other courts may also hold states responsible for
the actions of their peacekeeping delegations stationed abroad.
Other courts may look to the Dutch Supreme Court’s decision
because the Court based its holding on two sets of rules created
by the International Law Commission of the UN:47 the Draft
Articles on Responsibility of States for Internationally Wrongful
Acts of 200148 and the Draft Articles on the Responsibility of
International Organizations of 2011.49 The Dutch Supreme Court
also pointed out that when the Netherlands contributed troops to
the UN, the troops were still in the service of the Netherlands
and the state maintained the power to decide personnel issues
and to punish the troops under disciplinary or criminal law.50
Other courts dealing with similar issues could also utilize this
type of argument to find that a state had effective control over
its troops serving in a peacekeeping mission.
SOMALIA, Buur-Hakba: Photograph taken and released by the
African Union-United Nations Information Support team 27 February
2012. An armored personnel carrier of Ugandan forces serving with
the African Union Mission in Somalia (AMISOM) advances along
a road toward the central Somali town of Buur-Hakba. AU-UN IST
PHOTO / STUART PRICE.
Immunity of International Organizations
Another recent example of peacekeepers causing harm in a
host state is that of UN peacekeepers in Haiti. In 2004, the UN
Security Council established the UN Stabilization Mission in
Haiti (MINUSTAH)51 following an armed conflict that ousted
the country’s president.52 After a destructive earthquake in 2010,
the UN Security Council increased the number of MINUSTAH
troops in Haiti.53 The UN sent peacekeeping troops from Nepal
to join the MINUSTAH troops in Haiti.54 The UN stationed the
Nepalese soldiers close to a tributary of the Artibonite River,
which is one of Haiti’s main sources of potable water.55 The UN
constructed poor sanitation facilities for the Nepalese soldiers
and sewage eventually contaminated the tributary with cholera.
Cholera is a prevalent disease in Nepal and an outbreak occurred
just before the soldiers left to join MINUSTAH.56 The Haitian
Ministry of Public Health reported on the appearance of the
disease just downstream from the MINUSTAH base less than
a month after the troops from Nepal arrived in
Haiti.57
Stabilization Mission in Haiti (MINUSTAH), to reinforce the military component of the UN
Mission in South Sudan (UNMISS). UN Photo/Isaac Billy
5
The UN denies responsibility for the cholera
epidemic, but a recent report by the Yale Law
School and the Yale School of Public Health
concluded that the UN did cause the cholera
epidemic in Haiti, and that the UN’s refusal to
compensate the victims of the epidemic is a
violation of its obligations to the Haitian government under international law.58 Victims of
the epidemic filed a class action lawsuit against
the UN in U.S. federal court in 2013.59 The
UN stated that it cannot receive the complaint
pursuant to Section 29 of the Convention on
the Privileges and Immunities of the UN.60 This
convention is binding on the United States,61
and in addition to the Convention, the U.S.
International Organizations Immunities Act provides that international organizations “shall
enjoy the same immunity from suit and every
form of judicial process as is enjoyed by foreign governments, except to the extent that
The reality is that states contributing peacekeeping troops to UN missions
rarely prosecute peacekeepers for crimes they commit in the host country.
such organizations may expressly waive their immunity for the
purpose of any proceedings or by the terms of any contract.”62
Based on these international and domestic legal instruments,
the UN’s argument of immunity will probably be successful
in the U.S. legal system.63 The case, however, raises important
questions about the extent to which traditional organizational
immunities can be trumped by the more fundamental values
inherent in the international human rights of victims of serious
or ongoing violations.
the official capacity of the troops, then the SOMA may not apply
and the troops may not be immune from legal process.
International Humanitarian Law
In a conflict-ridden area like Somalia, it is likely that international humanitarian law also applies. The sexual violence
committed in Somalia gives rise to criminal responsibility for
ordinary crimes, punishable according to the rules of national
jurisdiction in the country where they are committed. But the
nature of the armed conflict, as well as the range, gravity, and
intentions of the perpetrators, may be sufficient to implicate violations of the Geneva Conventions or their Additional Protocols,
particularly if violations of such norms are codified in the
domestic law of the troop-contributing countries.
International Legal Responsibility
The Dutch Supreme Court case noted above is an important
example of a state being held responsible for the actions of its
troops serving in a UN peacekeeping mission abroad; however,
it is unlikely that many national cases will follow the Dutch
example in the near future. The immunities of international
organizations and state troops are difficult to circumvent, and
many states may not have the necessary legal infrastructure
for extraterritorial application of their criminal laws. The UN’s
denial of responsibility for the cholera outbreak in Haiti also
illustrates the strength of immunities granted to international
organizations. The case of sexual violence perpetrated by
AMISOM peacekeeping troops in Somalia faces similar obstacles. It is unlikely that a national case against AMISOM itself
or the troop-contributing states would be successful due to these
immunities. Alternatively, the international arena may provide a
stronger chance for success.
In the case of Somalia, the conflict is largely internal.69
Assuming an internal armed conflict for our purposes, it may be
argued that both Common Article 3 of the Geneva Conventions70
and the explicit provisions of Article 4 of Additional Protocol
II of the Conventions apply.71 Common Article 3, for its part,
prohibits “violence to life and person,” “cruel treatment,” or
other “outrages upon personal dignity.”72 Article 4 of Additional
Protocol II protects civilians in an internal armed conflict from
“outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form
of indecent assault.”73 Uganda, Burundi, Djibouti, Sierra Leone,
Kenya, and Ethiopia are the countries contributing troops to
AMISOM’s military component74 and they are all parties to
Additional Protocol II, though Somalia is not a party.75 These
avenues for criminal responsibility, as well as those arising
under international criminal law, should be fully explored in
determining the scope of responsibility for peacekeeping forces
implicated in serious sexual violence.
Prosecuting AMISOM personnel for acts of sexual violence
committed against Somali citizens may be more successful in
international or regional courts than in national courts because
these courts set aside the issue of immunity. Sexual violence
perpetrated by AMISOM troops likely constitutes a violation
of international law.64 It is widely agreed upon that those who
commit acts that constitute international crimes under international law can be held criminally responsible.65 The immunities
that may complicate the prosecution of these types of cases in
national courts are explicitly disregarded in the international
courts so that state officials can be brought to justice.66
Conclusion
Somalia, though emerging from its reputation as a failed
state, must now assure that its own citizens’ most basic human
rights are protected. Situations in which there are few strictures
on misconduct, immense discretion in operational scope, and
the cloak of international immunities should never serve as a
shield against either violations of fundamental human rights
or grave violations of the laws of war. International partners
in post-conflict institution building can play an important supportive role, but should never be a part of the problem. As the
forgoing analysis demonstrates, there are myriad problems with
legal responsibility in this context for individuals, states, or
international institutions involved in criminal activity. Creative
advocacy may provide innovative solutions while assuring that
victims of sexual violence are protected from retaliation if they
come forward to seek justice.
Human Rights Violations as Official Acts
Despite the fact that the SOMA between the African Union
and Somalia provides that AMISOM personnel are immune
from legal process for acts performed in their official capacity,67 there is a strong argument that sexual violence cannot be
committed within an official capacity. In the case against former
head of state of Chile — Augusto Pinochet Ugarte — the British
courts held that crimes such as torture can never be committed
as official acts.68 Under this line of reasoning, if acts of sexual
violence committed by AMISOM troops were not perpetrated in
6
Endnotes
1 Somalia:
22 Róisín
Burke, Status of Forces Deployed on UN Peacekeeping
Operations: Jurisdictional Immunity, 16 J. Conflict & Security L.
63, 65–67 (2011).
23 Id. at 67.
24 Id.
25 Id.
26 Paul D. Williams, Into the Mogadishu Maelstrom: The African
Union Mission in Somalia, 16 Int’l Peacekeeping 514, 516 (2009).
27 S.C. Res. 1725, ¶ 3 U.N. Doc. S/RES/1725 (Dec. 6,
2006), available at http://www.un.org/en/ga/search/view_doc.
asp?symbol=S/RES/1725(2006).
28 African Union Peace and Security Council, Communiqué, ¶ 8,
PSC/PR/Comm(LXIX) (Jan. 19, 2007), available at http://www.
peaceau.org/uploads/communiqueeng-69th.pdf.
29 S.C. Res. 1744, ¶ 4, U.N. Doc. S/RES/1744 (Feb. 21,
2007), available at http://www.securitycouncilreport.org/atf/
cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/
Somalia%20S%20RES%201744.pdf.
30 S.C. Res. 2124, ¶¶ 1, 4, U.N. Doc. S/RES/2124 (Nov. 12,
2013), available at http://www.securitycouncilreport.org/atf/
cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_
res_2124.pdf.
31 Status of Mission Agreement, The Transitional Federal
Government of the Somali Republic-African Union, Mar. 6, 2007,
available at http://storage.globalcitizen.net/data/topic/knowledge/
uploads/20100505103429290.pdf.
32 Id. ¶ 54.
33 Id. ¶ 55(b).
34 Id. ¶ 8.
35 Id. ¶¶ 47–51.
36 UN Humanitarian Wing Warns of Pervasive Sexual Violence
in Somalia, supra note 8; Nicholas Kulish, African Union and
Somalia to Investigate Rape Accusation, N.Y. Times, Aug. 15, 2013,
http://www.nytimes.com/2013/08/16/world/africa/african-unionand-somalia-to-investigate-rape-allegations.html?_r=0; UNSOM
Chief Wants Alleged AMISOM Troops Perpetrating Rape to be Held
Accountable, Somaliland Sun, Aug. 19, 2013, http://somalilandsun.
com/index.php/regional/3578-unsom-chief-wants-alleged-amisomtroops-perpetrating-rape-to-be-held-accountable; Somali Women
Train to Fight Sexual Violence, Voice of America, Sept. 11, 2013,
http://www.voanews.com/content/somali-women-trained-to-fightsexual-violence/1747700.html.
37 Victims and Witnesses Protection and Support, ICC Website,
http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20
court/protection/Pages/victims%20and%20witnesses%20protection.
aspx (last visited Apr. 22, 2014).
38 Witnesses, ICTY Website, http://www.icty.org/sid/158 (last
visited Apr. 22, 2014); Witness Support and Protection at ICTR,
ICTR Website, http://www.unictr.org/AboutICTR/ICTRStructure/
WitnessesVictimsSupportSectionWVSS/tabid/106/Default.aspx
(last visited Apr. 22, 2014).
39 UN Humanitarian Wing Warns of Pervasive Sexual Violence in
Somalia, supra note 8.
40 Al-Skeini and Others v. The United Kingdom, (55721/07)
(2011) 53 E.H.R.R. 18, available at http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-105606.
41 Ameziane v. United States, Inter-Am. Comm’n H.R., Report
No. 17/12, Admissibility (2012), available at http://ccrjustice.org/
files/2012-03-30%20Ameziane%20IACHR%20Admissibility%20
Decision.pdf.
Rape and Sexual Violence a Constant Threat for
Displaced Women, Amnesty International, Aug. 30, 2013, http://
www.amnesty.org/en/news/somalia-rape-and-sexual-violence-constant-threat-displaced-women-2013-08-30; Somalia: Deeply Flawed
Rape Inquiry, Human Rights Watch, Nov. 11, 2013, http://www.
hrw.org/news/2013/11/10/somalia-deeply-flawed-rape-inquiry.
2 Dr. Andre Le Sage, Stateless Justice in Somalia: Formal
and Informal Rule of Law Initiatives, Centre For Humanitarian
Dialogue 13 (2005), available at http://www.ssrnetwork.net/
uploaded_files/4397.pdf.
3 Somalia Profile, BBC News, July 4, 2013, http://www.bbc.
co.uk/news/world-africa-14094503.
4 Id.
5 Id.
6 Somalia: Rape and Sexual Violence a Constant Threat for
Displaced Women, supra note 1.
7 Id.
8 UN Humanitarian Wing Warns of Pervasive Sexual Violence in
Somalia, UN News Centre, Aug. 16, 2013, http://www.un.org/apps/
news/story.asp?NewsID=45641#.UvU0RUJdW2l.
9 Somalia: Rape and Sexual Violence a Constant Threat for
Displaced Women, supra note 1.
10 J. Michael Greig & Paul F. Diehl, Peacekeeping: A Barrier to
Durable Peace?, 7 Yale J. Int’l Aff. 46, 47–48 (2012), available
at http://yalejournal.org/wp-content/uploads/2012/04/Article-Greigand-Diehl.pdf.
11 Id.
12 Current Peacekeeping Operations, United Nations
Peacekeeping, http://www.un.org/en/peacekeeping/operations/current.shtml (last visited Apr. 22, 2014).
13 Michael J. Jordan, Sex Charges Haunt UN Forces, Christian
Sci. Monitor, Nov. 26, 2004, http://www.csmonitor.com/2004/1126/
p06s02-wogi.html.
14 Promotion and Protection of the Rights of Children: Impact of
Armed Conflict on Children: Rep. of the Expert of the SecretaryGeneral, Ms. Grac’a Machel, ¶ 98, U.N. Doc. A/51/306 (Aug. 26,
1996), available at http://www.unicef.org/graca/a51-306_en.pdf.
15 Marco Odello, Tackling Criminal Acts in Peacekeeping
Operations: The Accountability of Peacekeepers, 15 J. Conflict &
Security L. 347, 350 (2010).
16 Sources are comprehensively compiled throughout Odello’s
“Tackling Criminal Acts in Peacekeeping Operations: The
Accountability of Peacekeepers.” Id.
17 Id. at 353–54.
18 Id. at 358.
19 U.N. Secretary-General, Comprehensive Review of the Whole
Question of Peace-Keeping Operations in All Their Aspects: Model
Status-of-Forces Agreement for Peace-Keeping Operations, Report
of the Secretary-General, ¶¶ 46, 47(b), U.N. Doc. A/45/594 (Oct. 9,
1990), available at http://www.ilsa.org/jessup/jessup09/basicmats/
UNsofa.pdf.
20 Tom Dannenbaum, Translating the Standard of Effective
Control into a System of Effective Accountability: How Liability
Should be Apportioned for Violations of Human Rights by Member
State Troop Contingents Serving as United Nations Peackeepers, 5
Harv. Int’l L.J. 113, 115–16 (2010).
21 Handbook on United Nations Multidimensional Peacekeeping
Operations, Department of Peacekeeping Operations 13 (2003),
available at http://www.peacekeepingbestpractices.unlb.org/Pbps/
library/Handbook%20on%20UN%20PKOs.pdf.
7
42 Marlise Simons, Dutch Peacekeepers Are Found Responsible
for Deaths, N.Y. Times, Sept. 6, 2013, http://www.nytimes.
com/2013/09/07/world/europe/dutch-peacekeepers-are-foundresponsible-for-deaths.html.
43 Id.
44 HR 6 September 2013, NJ 2013, 12/03324 m.nt. (Nuhanovic/
The State of the Netherlands) ¶ 3.11.2 (Neth.), available at http://
www.asser.nl/upload/documents/20130909T125927-Supreme%20
Court%20Nuhanovic%20ENG.pdf.
45 Id. ¶ 3.11.3.
46 Simons, supra note 42.
The State of the Netherlands) ¶ 3.7 (Neth.).
48 Responsibility of States for Internationally Wrongful Acts of
2001, Dec. 12, 2001, available at http://untreaty.un.org/ilc/texts/
instruments/english/draft%20articles/9_6_2001.pdf.
49 Draft Articles on the Responsibility of International
Organizations of 2011, available at http://legal.un.org/ilc/texts/
instruments/english/draft%20articles/9_11_2011.pdf.
The State of the Netherlands) ¶ 3.10.2 (Neth.).
51 S.C. Res. 1542, ¶ 1, U.N. Doc. S/RES/1542 (Apr. 30,
2004), available at http://www.un.org/en/ga/search/view_doc.
asp?symbol=S/RES/1542(2004).
52 MINUSTAH: United Nations Stabilization Mission in Haiti,
http://www.un.org/en/peacekeeping/missions/minustah/ (last visited
Apr. 22, 2014).
53 Id.
54 Transnational Dev. Clinic, Jerome N. Frank Legal Serv. Org.,
Yale Law Sch., Global Health Justice P’ship of the Yale Law
Sch. & the Yale Sch. of Pub. Health, & Association Haitïenne de
Droit de L’Environnment, Peacekeeping without Accountability:
The United Nations’ Responsibility for the Haitian Cholera
Epidemic 1 (2013), available at http://www.law.yale.edu/documents/
pdf/Clinics/Haiti_TDC_Final_Report.pdf.
55 Id.
56 Id.
57 Id.
58 Id.
59 Ivan Watson & Joe Vaccarello, U.N. Sued for ‘Bringing Cholera
to Haiti,’ Causing Outbreak That Killed Thousands, CNN, Oct. 10,
2013, available at http://edition.cnn.com/2013/10/09/world/americas/haiti-un-cholera-lawsuit/.
60 Statement of the Special Representative of the SecretaryGeneral of the United Nations in Haiti a. i. Nigel Fisher, on the
Compensation Case Filed Against the United Nations on Behalf of
Victims of the Cholera Outbreak in Haiti, MINUSTAH, available
at http://www.minustah.org/statement-of-the-special-representativeof-the-secretary-general-of-the-united-nations-in-haiti-a-i-nigelfisher-on-the-compensation-case-filed-against-the-united-nationson-behalf-of-victims-of-th/; Convention on the Privileges and
Immunities of the United Nations, Feb. 13, 1946, available at
https://www.un.org/en/ethics/pdf/convention.pdf.
61 The United States acceded to the Convention on the Privileges
and Immunities of the UN in 1970. Status of Convention on
the Privileges and Immunities of the United Nations (Feb. 13,
1946), available at https://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=III-1&chapter=3&lang=en.
62 22 U.S.C. § 288(a) (2012).
63 Armin Rosen, How the U.N. Caused Haiti’s Cholera Crisis —
and Won’t Be Held Responsible, The Atlantic, Feb. 26, 2013, http://
www.theatlantic.com/international/archive/2013/02/how-the-uncaused-haitis-cholera-crisis-and-wont-be-held-responsible/273526/.
64 Both the ICTY and the ICTR have convicted individuals for
rape as a form of torture and as a crime against humanity. Crimes
of Sexual Violence, ICTY Website, http://www.icty.org/sid/10312
(last visited Apr. 22, 2014).
65 Joanne Foakes, Immunity for International Crimes?
Developments in the Law on Prosecuting Heads of State in Foreign
Courts, Chatham House Briefing Paper 2 (2011), available at
http://www.chathamhouse.org/sites/default/files/public/Research/
International%20Law/bp1111_foakes.pdf.
66 Id.
67 Status of Mission Agreement, The Transitional Federal
Government of the Somali Republic-African Union, ¶ 54, Mar. 6,
2007, available at http://storage.globalcitizen.net/data/topic/knowledge/uploads/20100505103429290.pdf.
68 R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte
Pinochet (No. 3) [2000] 1 A.C. 147 (H.L.) (appeal taken from the
Divisional Court of the Queen’s Bench Division).
69 Although, there may be a question of whether the notorious
actions of Somali pirates would extend the country’s domestic conflict into the international arena.
70 Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12,
1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T.
3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Protection
of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the
Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316,
75 U.N.T.S. 135 [hereinafter Common Article 3].
71 Protocol Additional to the Geneva Conventions of 12 August
1949 and Relating to the Protection of Victims of Non-international
Armed Conﬂicts art. 4, June 8, 1977, 1125 U.N.T.S. 609.
72 Common Article 3, 1(a), 1(c).
73 Protocol Additional to the Geneva Conventions of 12 August
1949 and Relating to the Protection of Victims of Non-international
Armed Conﬂicts art. 4(2)(e), June 8, 1977, 1125 U.N.T.S. 609.
74 AMISOM Military Component, http://amisom-au.org/missionprofile/military-component/ (last visited Apr. 22, 2014).
75 States Parties to the Protocol Additional to the Geneva
Conventions of 12 August 1949 and Relating to the Protection
of Victims of Non-international Armed Conflicts, International
Committee of the Red Cross, http://www.icrc.org/applic/ihl/ihl.nsf/
States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=475 (last visited Apr. 22, 2014).
8
Toward a More Lenient Law: Trends in Sentencing from the
European Court of Human Rights
By Nina Kisić* & Sarah King**
I
Introduction
can apply directly since 1998,3 and its decisions are binding on
CoE Member States, which have an obligation to execute the
decisions.4
n the last few years, a trend has emerged from the European
Court of Human Rights (ECtHR, the Court) suggesting
that the Court’s motivation behind the sentencing decisions it reviews may be shifting away from solely punitive
measures to focus on fairness, rehabilitation, and release of
incarcerated persons. This pattern has crystallized as the Court
increasingly decides cases based on determinations of whether
or not domestic jurisdictions are upholding their obligations
under international law. Established in 1959, the Court rules
on alleged violations of the European Convention on Human
Rights (ECHR, the Convention),1 a document that is binding on
Member States of the Council of Europe (CoE). ECtHR judgments interpret the Convention in individual cases, making the
Court’s jurisprudence especially important for CoE Member
States, as judgments provide clarity to the ECHR and ultimately
aim to harmonize criminal (and other) justice systems.2 The
ECtHR has been sitting as a full-time court to which individuals
In the more than 10,000 judgments since its inception, the
Court has had the opportunity to consider many aspects of the
fairness and legality of trials and sentencing under the requirements of the ECHR.5 While several articles of the ECHR might
potentially have an impact on the ECtHR’s interpretation of
issues related to trials and sentencing, this article will primarily
focus on how the Court’s more recent interpretation of Articles
3 and 7 indicate a potential shift in its approach to these topics.6
Article 3 of the ECHR concerns the prohibition against
torture, stating that “[n]o one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”7 Article 7 sets
out the principle of nullum crimen, nulla poena sine lege (no
punishment without law), stating that:
(1) No one shall be held guilty of any criminal offence
on account of any act or omission which did not constitute a criminal offence under national or international
law at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
* Nina Kisić is a Senior Legal Advisor in the Criminal Defense
Section of the Ministry of Justice of Bosnia and Herzegovina. Ms.
Kisić is the co-author of the Manual on International Criminal
Defense, which was produced as part of the War Crimes Justice
Project, an initiative aimed at facilitating the transfer of knowledge
and materials to legal professionals in the former Yugoslavia. She was
also an advisor to the applicants in the Maktouf and Damjanović case
before the ECtHR, and has authored many articles dealing with complex international criminal law issues. Ms. Kisić is a regular lecturer
for legal professionals on various topics dealing with both international criminal law and human rights law.
(2) This Article shall not 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 recognised by
civilised nations.8
Both Articles have been used by the Court in recent decisions, discussed below, to direct the approach of national laws
on sentencing of convicted persons.
** Sarah King is an Associate Professor in the International and
Business Law Department at the American University of Central Asia
(AUCA) and the Human Rights Program Manager at the Tian Shan
Policy Center within AUCA. Her research focuses on rule of law
and initiatives for the prevention and investigation of allegations of
torture. Before coming to AUCA / TSPC, Ms. King worked for several years with the Children’s Law Center (CLC) in Washington, DC
first as a litigator in CLC’s medical legal partnership and later as a
policy attorney advocating for systemic law reform in Washington,
DC. Prior to that, Ms. King worked with Odsjek Krivicne Odbrane
(OKO) in criminal defense cases before the War Crimes Chamber
of the Court of Bosnia and Herzegovina and co-drafted the application of Maktouf and Damjanović to the ECtHR. Ms. King received a
B.A. in International Relations and Public Relations from Syracuse
University, where she graduated Phi Beta Kappa and magna cum
laude. She received a J.D. from the University of Miami, where she
graduated magna cum laude. The ECtHR has stated that, while punishment remains one
of the aims of imprisonment, the emphasis in European penal
policy is now focused on the rehabilitative aim of imprisonment,
particularly as it concerns lengthy prison sentences.9 This position is reflected in a string of recent cases decided by the Court.
Beginning in late 2009, the ECtHR entered several judgments,
first in its Sections and then in the Grand Chamber, indicating its
general approach on CoE Member States’ sentencing policies.
These judgments are Vinter v. United Kingdom, Damjanović
and Maktouf v. Bosnia and Herzegovina, M. v. Germany, Del
Rio Prada v. Spain, and Ocalan v. Turkey,10 all of which were
decided within the last year. In each case, the Court considered
a combination of interpretations of Articles 3, 5, 6, and 7 as they
relate to the fairness and legality of sentencing, highlighting the
nuance of what appears to be the ECtHR’s evolving view on
9
The ECtHR has stated that, while punishment remains one of the aims
of imprisonment, the emphasis in European penal policy is now focused
on the rehabilitative aim of imprisonment, particularly as it concerns
lengthy prison sentences.
both the purpose and implementation of sentencing of convicted
persons.
Recent ECtHR Jurisprudence in
Sentencing Applications
This emerging policy has the potential to influence both
the national court systems within CoE Member States and
international tribunals. Since ECtHR jurisprudence has precedential power in all CoE Member States, not just those that are
the subject of particular applications, the above decisions can
affect national law and policy far beyond the country named
in the judgment. In addition to their application in domestic
courts, ECtHR decisions have been shown to have persuasive
authority in international courts and tribunals. For example,
the International Criminal Tribunal for Rwanda’s (ICTR) Trial
Chamber in Prosecutor v. Barayagwiza observed that regional
human rights treaties, such as the European and the American
Conventions on Human Rights, and the jurisprudence developed
thereunder, are persuasive authority which may be of assistance
in applying and interpreting the law applicable to the Tribunal.11
In order to understand the shift in Court policy, this article
will highlight the Court’s four most recent decisions on this
topic: Vinter v. United Kingdom, Maktouf and Damjanović v.
Bosnia and Herzegovina, Del Rio Prada v. Spain, and Ocalan
v. Turkey.12
The first of these four cases decided by the Grand Chamber
of the ECtHR was Vinter v. United Kingdom.13 In Vinter, the
Grand Chamber considered the UK’s “Whole Life Order” which
provided convicted persons no possibility of parole or release
irrespective of rehabilitation, good behavior, or other changed
circumstances. The ECtHR found that the “Whole Life Orders”
violated Article 3, not because they were grossly disproportionate, but because of other guiding principles of the Article.14 It
further found that, in order to be compatible with Article 3, the
mode of punishment must include both “the prospect of release
and a possibility for review.”15 The Court went on to state that
without the possibility of release or review, the “punishment
becomes greater with time: the longer the prisoner lives, the
longer his sentence.”16
Most of these cases (Del Rio Prada, Damjanović and
Maktouf, and M. v. Germany) deal with non-retroactive application of criminal law, some of which even consider the specific
types of criminal sanctions. Several important issues can be
derived from the jurisprudence presented in the following text,
including the Court’s emerging tendency to encourage potential
rehabilitation of offenders. This article will introduce and analyze the ECtHR’s string of recent decisions related to criminal
sanctions. It will then consider how these decisions are likely to
affect the broader international context, extending beyond the
specific countries involved.
The second of these cases to address sentencing considerations before the ECtHR, Maktouf and Damjanović v. Bosnia
and Herzegovina, was decided on July 18, 2013 and primarily rested on the question of the retroactive application of law
and compatibility with Article 7 of the ECHR.17 Both of these
consolidated cases dealt with the application of the 2003 BiH
Criminal Code to crimes committed while the 1976 Socialist
Federal Republic of Yugoslavia (SFRY)
Criminal Code was in effect. The specific
consideration was whether the higher
minimum sentence for war crimes would
amount to an unlawful retroactive application of less lenient law to the convicted
persons. The ECtHR found that, in both
Maktouf and Damjanović, the Court of
BiH acted inappropriately when it retroactively applied law that was detrimental
to the defendants in violation of Article 7
as it related to war crimes cases.
European Court of Human Rights (Strasbourg) - photo courtesy of CherryX on Flickr Creative
Commons
10
In the second half of 2013, the Court
considered Del Rio Prada v. Spain.
Originally heard in the Third Section of
the Court on July 10, 2012, the Grand
Chamber of the ECtHR ruled on this case
on October 21, 2013, finding that Spain
violated Article 7 of the ECHR. The
Court considered whether the application
of a new doctrine that had the effect of
Article 3
extending the convicted person’s time incarcerated and that was
adopted after sentencing amounted to an unlawful retroactive
application of law. The ECtHR found that, although the Spanish
Supreme Court did not retroactively apply the law in question
(no. 7/2003), its actions still amounted to a violation of Article
7.18 The ECtHR determined that the Spanish Supreme Court
aimed to accomplish the same outcome as the above-mentioned
law in its actions toward the applicant. It further found that the
applicant could not have foreseen the Spanish Court’s actions
because they departed so far from the Court’s own case law.
Thus, since these actions were detrimental to the applicant due
to their harmful retroactive application of law to a convicted
person, the Court found a violation of
Article 7.19
Article 3 provides an absolute prohibition on torture, providing that, “[n]o one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”20 The Court has analyzed
its sentencing principles in light of Article 3 to determine if the
challenged sentences violate the categorical pronouncement
contained therein. When conducting its analysis, the Court considered whether or not sentences that specifically prohibit the
possibility for release are illegal under Article 3.
The ECtHR found that the requirements of Article 3 were
not met in relation to any of the three applicants in Vinter v.
United Kingdom, concluding that “there is . . . clear support in
European and international law for
the principle that all prisoners, including those serving life sentences, be
offered the possibility of rehabilitation
and the prospect of release if that rehabilitation is achieved.”21 Thus, when
addressing a life sentence, Article 3
must be interpreted as requiring the
potential for reducibility of the sentence. There must be a review that
“allows the domestic authorities to
consider whether any changes in the
life [and behavior of the] prisoner are
so significant, and such progress towards rehabilitation has been
made in the course of the sentence, as to mean that continued
detention could no longer be justified on legitimate penological
grounds.”22
Finally, on March 18, 2014, the
ECtHR adopted a judgment in Öcalan
v. Turkey (application nos. 24069/03,
197/04, 6201/06, and 10464/07), in
which it unanimously held that there
had been a violation of Article 3 of the
ECHR due to the life sentence without
possibility of conditional release. The
Court reiterated that the requirements
of Article 3 would be satisfied if
national law affords a possibility of
review of a life sentence with an option of commutation, remission, termination, or conditional release. In other words, a life
sentence must be “reducible,” providing for both a prospect of
release and a possibility of review.
[W]ithout the possibility
of release or review, the
“punishment becomes greater
with time: the longer the
prisoner lives, the longer
his sentence.”
The ECtHR set forth a clear pronouncement in Vinter that, in
order to meet its obligations under the ECHR, a state’s domestic
sentencing guidelines must ensure that progress toward rehabilitation is always a possibility for convicted persons. This
requirement demonstrates that the Court does not view sentencing merely in the penological context, but that it will review
guidelines to ensure that sentencing also serves the purposes of
encouraging progress toward the behavior that meets society’s
expectations of its citizens. Based on this analysis, mere punishment does not appear to meet the guidelines prescribed under
the Convention.
The ECtHR’s Analysis of ECHR Articles 3 and 7
The four decisions above highlight an emerging trend in the
Court’s application of the ECHR to broader issues of sentencing
and penal policy as considered within a human rights framework. Looking specifically at the implications of Articles 3 and
7 to cases regarding the rights of convicted persons, the ECtHR
has made it clear that it intends to follow a policy whereby
punishment must not only be fair and proportional to the crime,
but must also be crafted in such a way that penal systems aim to
also rehabilitate.
In order to make this point clear, the Court has used relevant
articles in the Convention to re-emphasize, and perhaps broaden,
the well-known principle of nullum crimen, nulla poena sine
lege, stressing that any punishment must be crafted to incentivize socially desirable behavior. In other words, any punishment
that is applied to an accused retroactively without requisite
notice serves only to punish. Those punishments do not serve to
incentivize the actor’s movement away from criminal behavior.
Additionally, it is clear that the ECtHR considers any punishment that does not provide convicted persons with the prospect
of rejoining society after demonstrating the desired behavior to
be not only inappropriately cruel and unusual, but also representative of a failure of society to give the convicted person motive
to reform. Through the four recent Court decisions detailed
above, the Court is moving toward a model that favors not simply punishment but also incentivizing desired behavior.
Article 7
Article 7 of the ECHR pronounces the principle of nullum
crimen, nulla poena sine lege, meaning that there shall be no
punishment without law. It also makes clear that no “heavier
penalty [shall] be imposed than the one that was applicable at
the time the criminal offen[s]e was committed.”23
On December 17, 2009, the Court ruled in M. v. Germany
that “the concept of ‘penalty’ in Article 7 is autonomous in scope
and it is thus for the Court to determine whether a particular
measure should be qualified as a penalty, without being bound
by the qualification of the measure under domestic law.”24 The
Court went on to state that in order to “render the protection
afforded by Article 7 effective the Court must remain free to
go behind appearances and assess for itself whether a particular
measure amounts in substance to a ‘penalty’ within the meaning of this provision.”25 In other words, the Court must have the
11
flexibility to look at both the action and the result of the action
proposed.
As mentioned above, the ECtHR found that it would have
been difficult, if not impossible, for the applicant to foresee the
Supreme Court’s departure from precedent. Thus, it was also
impossible for the applicant to know at the material time, and
also at the time when all the sentences were combined into one,
that the Audiencia Nacional34 would calculate the reductions
of sentence in respect to each sentence individually and not the
total term to be served, thereby substantially lengthening the
time she would actually serve. Consequently, the ECtHR found
that it was required to reject the government’s preliminary objection and the application of the “Parot doctrine,”35 thus concluding that there was a violation of Article 7 of the Convention.36
The wording of Article 7 paragraph 1 indicates, in relevant
part, that determination of the presence of a penalty must
begin with an assessment of whether the measure in question
is imposed following conviction for a criminal offense. “Other
relevant factors are the characterization of the measure under
domestic law, its nature and purpose, the procedures involved in
its making and implementation, and its severity.”26 When considering the Court’s treatment of Article 7, the ECtHR does not
necessarily confine its application “to prohibiting the retroactive
application of the criminal law to an accused’s disadvantage.”27
“It also embodies, more generally, the principle that only the law
can define a crime and prescribe a penalty,”28 as well as “the
principle that the criminal law must not be extensively construed
to an accused’s detriment.”29
This particular case demonstrates a situation where the Court
found it necessary to emphasize that the applicant could not possibly have foreseen the Spanish government’s interpretation of
her sentence and remission of that sentence for behavior while
incarcerated. The inability to foresee this action removes any
incentive the accused might have otherwise had for progressive,
desired behavior.
The Court notes in this connection that the same type of
measure may be, and has been, qualified as a penalty in one
state and as a preventive measure to which the principle of
nulla poena sine lege does not apply in another. Thus, placing
recidivists and habitual offenders at the government’s disposal in
Belgium, for instance, which is in many ways similar to preventive detention under German law, has been considered a penalty
under Belgian law.30 However, the Court concluded that, looking
behind appearances and making its own assessment, preventive detention under the German
Criminal Code qualifies as a
“penalty” for the purposes of
Article 7 Section 1, and, as a
result, Germany violated this
Section of the Convention.
Impact Beyond the European Court
The ECtHR is not the only non-domestic court where
this trend is observed. When the European Court of Justice
(ECJ) decided Berlusconi and Others, it prominently held that
the principle of the retroactive
application of the more lenient
penalty formed part of the constitutional traditions common to
the EU Member States.37 Where
the law in question was found to
be retroactively applied, the ECJ
stated that “[a] consequence of
that kind would be contrary to
the limits which flow from the
essential nature of any directive, which . . . preclude[s] a directive from having the effect of determining or increasing the
liability in criminal law of accused persons.”38
[A] life sentence must be “reducible,”
providing for both a prospect
of release and a possibility of review.
In Damjanović and Maktouf
v. Bosnia and Herzegovina, the
ECtHR reviewed the scope of
Article 7. In considering the retroactive application of a law
where the minimum sentence was harsher than the original
minimum sentence, the Court found that BiH violated Article 7
Section 1 of the ECHR. The ECtHR concluded that the Court of
BiH should have applied provisions of the 1976 SFRY Criminal
Code, which could have resulted in more lenient sentences for
the applicants.31
If this trend is to ultimately have real impact, it must be felt at
the domestic level where the vast majority of decisions are made.
The following decisions demonstrate national courts falling in
line with ECtHR jurisprudence related to retroactive application
of sentencing. Both Norway and Bosnia and Herzegovina (BiH)
are members of the CoE, and as discussed above, BiH was the
direct recipient of an ECtHR decision on this point.
Similarly, in the case of Del Rio Prada v. Spain (first instance
at ECtHR, affirmed in pertinent part by the Grand Chamber),
the Court noted that the applicant’s convictions and the different
prison sentences she was given had a legal basis in the criminal
law applicable at the material time rather than at the time of
conviction.32 The ECtHR also noted that the Spanish Supreme
Court’s new interpretation of a law, as applied in that case, led
to the applicant’s sentence, which was retroactively extended
by almost nine years. This extension was due to the fact that,
up to that date, Spanish law had allowed work completed while
incarcerated to count toward a remission of the sentence. Under
the new Supreme Court interpretation of Spanish law, all of the
remissions to which the accused would have been entitled were
lost because of the length of the original sentences pronounced
against her.33
Norway
One example of domestic courts adopting the same reasoning exhibited by the ECtHR, albeit before the aforementioned
decisions were announced, was the domestic trial court in
Norway v. Breivik. In this case, the defendant detonated a car
bomb in the Government District in Oslo killing eight people
and injuring nine others. He later killed sixty-nine people and
injured thirty-three in a shooting rampage at Utoya Island, most
of whom were youths attending a summer camp.39
In light of the nature of the crimes, the defendant received a
punishment that has been widely discussed as being too lenient.
However, in determining the sentence, the court in Norway made
12
it clear that it was required to follow the
penal code as it was written at the time
of the crime. In Breivik, the Court found
that there was no doubt that the acts were
done with premeditation and under especially aggravating circumstances.40 The
defendant was sentenced to preventive
detention for a term of twenty-one years,
the maximum sentence allowed under
the Norwegian penal code, despite international criticism of the punishment’s
perceived leniency.
Bosnia and Herzegovina
On October 22, 2013, the Constitutional Court of Bosnia and Herzegovina
adopted a number of decisions on appeals
filed against verdicts from the Court European Court of Human Rights (Strasbourg) - photo courtesy of CherryX on Wikimedia
of BiH.41 These appeals stemmed from Commons
five to fifteen years and the death penalty that could be miticases in which the appellants were sengated to twenty years imprisonment for war crimes, it is notable
tenced to prison for war crimes, which are identically proscribed
that the death penalty was an available punishment under the
in the 1976 SFRY Criminal Code and the 2003 BiH Criminal
SFRY Criminal Code, whereas it was not available under subCode as war crimes against civilians and genocide.42
sequent laws.46 Because BiH signed Protocol 6 to the ECHR in
In these specific cases, the Constitutional Court consistently
200247 and Protocol 13 to the ECHR in 2003,48 the death penalty
applied the standards set forth in the ECtHR’s judgment of
could not be imposed in subsequent cases, making the maximum
Damjanović and Maktouf v. Bosnia and Herzegovina.43 As dispossible penalty under SFRY harsher than the maximum poscussed above, that decision addressed the application of Article
sible penalty under the codes of BiH.
7 of the ECHR, which prohibits the retroactive application of the
While these cases represent just the beginning, they do demlaw without exception and imposes the obligation to apply the
onstrate the initial trickle down of the trends from the ECtHR
more lenient criminal law in any case, regardless of the nature
into the practice of the national courts. It will be important to
and gravity of the offense.44
watch for developments in this field as the ECtHR shows no
In all of these decisions, the Constitutional Court found that
signs of reversing the trend in its decision-making, and all CoE
the verdicts of the Court of BiH violated the appellant’s rights
Member States will be held to its standard.
arising from Article 7 Section 1 of the ECHR because there was
a real possibility that the retroactive application of the 2003 BiH
Conclusion
Criminal Code operated to their detriment in terms of sentencing. Consequently, the Constitutional Court overturned the judgThe above analysis demonstrates what appears to be an
ments of the Appeals Chamber of the Court of BiH. It found in
emerging trend within the jurisprudence of the ECtHR. In its
all cases that the Court of BiH violated the stated constitutional
pattern of emphasizing the importance of rehabilitation of
rights of the appellants and remanded the cases to the lower
offenders and societies while routinely applying the more lenient
court to adopt new decisions in accordance with Article 7 of the
law, the ECtHR has repeatedly rejected the arguments from
Convention.45
several governments that the gravity of the crime should be the
primary determining factor in the punishment. This approach,
The crux of the Constitutional Court’s decisions was the fact
seen not only at the ECtHR, but also in domestic courts and
that the SFRY Criminal Code was more lenient with respect
tribunals, should signal to practitioners the need to carefully
to the maximum possible sentence imposed in these cases.
analyze these considerations in the application for and defense
Although the Criminal Code of SFRY prescribed sentences of
of criminal sentences.
Endnotes
1 Convention for the Protection of Human Rights and
Fundamental Freedoms, Nov. 4, 1950, E.T.S. no. 5; 213 U.N.T.S.
221, available at http://www.echr.coe.int/Documents/Convention_
ENG.pdf (hereinafter “European Convention”).
2 Authors note that the European Court of Justice (ECJ) has an
equally important influence on EU countries. However, as this
article focuses on ECtHR jurisprudence and its influence, ECJ
jurisprudence is noted only in passing (Berlusconi case). ECJ juris-
prudence follows ECtHR jurisprudence, and all EU Member States
are also members of the Council of Europe. There are, however,
some differences regarding ratifications of certain protocols to the
ECHR.
3 European Court of Human Rights & Council of Europe, The
Court in Brief, available at http://www.echr.coe.int/Documents/
Court_in_brief_ENG.pdf.
13
4 European Court of Human Rights & Council of Europe, The
European Court of Human Rights in 50 Questions (2012), available at http://www.echr.coe.int/Documents/50Questions_ENG.pdf.
5 See, European Convention, supra note 1 (noting that the
European Convention is further bolstered by its subsequent additional Protocols).
6 See, e.g., id. art. 5 (detailing the right to liberty and security).
7 Id. art. 3.
8 Id. art. 7.
9 See, e.g., Dickson v. the United Kingdom, 2007-V Eur. Ct. H.R.
§ 75; Boulois v. Luxembourg, App. No. 37575/04, Eur. Ct. H.R., §
83 (2012).
10 Del Río Prada v. Spain, App. No. 42750/09, Eur. Ct. H.R. ¶¶
21, 116, 118 (2013), available at http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-112108#{“itemid”:[“001-112108”]};
Vinter v. United Kingdom, App. Nos. 66069/09, 130/10, 3896/10,
Eur. Ct. H.R. (2013), available at http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-122664; Maktouf and Damjanovic v.
Bosnia and Herzegovina, App. Nos. 2312/08, 34179/08, Eur. Ct.
H.R. (2013), available at http://hudoc.echr.coe.int/sites/eng/pages/
search.aspx?i=001-122716.
11 Prosecutor v. Barayagwiza (Appeals Chamber Judgment),
ICTR-99-52-T, ¶ 40 (Nov. 3, 1999).
12 As of May 2014, the Court’s March 2014 judgment in Ocalan v.
Turkey is not final: “Under Articles 43 and 44 of the Convention,
this Chamber judgment is not final. During the three-month period
following its delivery, any party may request that the case be
referred to the Grand Chamber of the Court. If such a request is
made, a panel of five judges considers whether the case deserves
further examination. In that event, the Grand Chamber will hear
the case and deliver a final judgment. If the referral request is
refused, the Chamber judgment will become final on that day. Once
a judgment becomes final, it is transmitted to the Committee of
Ministers of the Council of Europe for supervision of its execution.”
Further information about the execution process can be found here:
Press Release, Council of Europe, Execution of Judgments of the
European Court of Human Rights (March 7, 2014), www.coe.int/t/
dghl/monitoring/execution.
13 Eur. Ct. H.R., App. Nos. 66069/09, 130/10, 3896/10 (2013),
available at http://hudoc.echr.coe.int/sites/eng/pages/search.
aspx?i=001-122664.
14 Id. ¶ 130.
15 Id. ¶ 110.
16 Id. ¶ 112.
17 App. Nos. 2312/08, 34179/08, Eur. Ct. H.R. (2013), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122716.
18 Del Río Prada v. Spain, App. No. 42750/09, Eur. Ct. H.R., ¶¶
21, 116, 118 (2013).
19 Id. ¶¶ 21, 116.
20 European Convention, supra note 1, arts. 3, 4.
21 App. Nos. 66069/09, 130/10, 3896/10, Eur. Ct. H.R. ¶ 114
(2013), available at http://hudoc.echr.coe.int/sites/eng/pages/search.
aspx?i=001-122664.
22 Id. ¶ 119.
23 European Convention, supra note 1, art. 7(1).
24 App. No. 19359/04, Eur. Ct. H.R. ¶¶ 1, 37 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96389.
25 Id. at 35 (citing Welch v. United Kingdom, 307 Eur. Ct. H.R.
(ser. A) at ¶ 27 (1995), available at http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-57927; Jamil v. France, 317 Eur.
Ct. H.R. (ser. A) at ¶ 30 (1995), available at http://hudoc.echr.
coe.int/sites/eng/pages/search.aspx?i=001-57929; Uttley v. United
Kingdom, 2005 Eur. Ct. H.R. 1, available at http://hudoc.echr.coe.
int/sites/eng/pages/search.aspx?i=001-71689.
26 Id. (citing Welch v. United Kingdom, 307 Eur. Ct. H.R. (ser.
A) at ¶ 28 (1995), available at http://hudoc.echr.coe.int/sites/eng/
pages/search.aspx?i=001-5792; Jamil v. France, 317 Eur. Ct. H.R.
(ser. A) at ¶ 31 (1995), available at http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-57929; Adamson v. United Kingdom,
App. No. 42293/98, Eur. Ct. H.R. (1999), available at http://
hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-78858; Van
der Valden v. Netherlands, 2006-XV Eur. Ct. H.R., available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-78858;
Kafkaris v. Cyprus, App. No. 21906/04, Eur. Ct. H.R., ¶ 142
aspx?i=001-85019).
27 Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) at ¶ 52
aspx?i=001-57827.
28 Id.
29 Id. Any analogy in criminal law may not be made to the
accused’s detriment. For example, an accused cannot be held retroactively responsible for behaviors he could not have reasonably
foreseen as illegal. This has been seen in cases of tax fraud, where
certain practices were not prescribed by the law as criminal at the
time when the accused applied them, but were later included.
30 Van Droogenbroeck v. Belgium, App. No. 7906/77, Eur. Ct.
H.R., ¶¶ 19, 24 (1982).
31 Maktouf and Damjanovic v. Bosnia and Herzegovina, App. Nos.
2312/08, 34179/08, Eur. Ct. H.R., ¶ 76 (2013), available at http://
hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122716
32 Del Rio Prada v. Spain, App. No. 42750/09, Eur. Ct. H.R. ¶ 49
(2012) available at http://hudoc.echr.coe.int/sites/eng/pages/search.
aspx?i=001-112108#{“itemid”:[“001-112108”]}.
33 Id. ¶ 58.
34 See The Spanish National Court: An Overview of La Audiencia
National, Ctr. for Justice & Accountability, http://www.cja.org/article.php?id=342 (last visited Apr. 14, 2014). The Audiencia National
is the Spanish National Court located in Madrid with jurisdiction
throughout all of Spain. Id.
35 See Del Rio Prada v. Spain, App. No. 42750/09, Eur. Ct. H.R.
¶ 27 (2012) (highlighting the Supreme Court’s reasoning, which
stated that “a joint interpretation of rules one and two of Article 70
of the Criminal Code of 1973 leads us to consider that the thirtyyear maximum term does not become a new sentence, distinct from
those successively imposed on the convict, or another sentence
resulting from all the previous ones, but is the maximum term of
imprisonment a prisoner should serve. . . . Thus, the method for the
discharge of the total term to be served [condena] is as follows: it
begins with the heaviest sentences imposed. The relevant benefits
and remissions are applied to each of the sentences the prisoner
is serving. When the first [sentence] has been served, the prisoner
begins to serve the next one and so on, until the limits provided for
in Article 70 § 2 of the Criminal Code of 1973 have been reached.
At this stage, all of the sentences comprised in the total term to
be served [condena] will have been extinguished. For example, in
the case of an individual given three prison sentences, 30 years, 15
years and 10 years. The second rule of Article 70 of the Criminal
Code of 1973 . . . limits the actual term to be served to three times
the most serious sentence or a maximum of 30 years’ imprisonment. In this case, it would be the maximum term of thirty years.
The successive serving of the sentences (the total term to be served)
begins with the first sentence, which is the longest one (30 years
in this case). If [the prisoner] were granted a ten-year remission for
whatever reason, he would have served that sentence after 20 years’
imprisonment, and the sentence would be extinguished; next, [the
prisoner] would start to serve the next longest sentence (15 years),
and with a remission of 5 years that sentence will have been served
14
first instance judgment was acquittal and second instance a conviction).
43 Maktouf and Damjanović v. Bosnia and Herzegovia, App. Nos.
2312/08 and 34179/08, Eur. Ct. H.R. (2013).
44 Id. ¶ 2.
45 In doing so, the Constitutional Court did not decide whether the
proceedings as a whole need to be repeated, did not decide on the
termination of the imprisonment and release of the appellants, nor
did it decide on the procedure by which the Court of BiH is to issue
a new decision in each case, as those are the matters within the
jurisdiction of the Court of BiH and are regulated by the substantive
and procedural laws at the state level.
46 Criminal Code of the Socialist Federal Republic of Yugoslavia
(adopted Sept. 28, 1976), arts. 34, 37, July 1, 1977.
47 See Protocol No. 6 to the Convention for the Protection
of Human Rights and Fundamental Freedoms concerning the
Abolition of the Death Penalty, April 28, 1983, ETS No. 114, available at: http://conventions.coe.int/Treaty/Commun/ChercheSig.
asp?NT=114&CM=&DF=&CL=ENG (last visited Apr. 25, 2014)
(Signed by BiH on Apr. 24, 2002, ratified on Jul. 12, 2002, and
entered into force on Aug. 1, 2002).
48 See Protocol No. 13 to the Convention for the Protection
of Human Rights and Fundamental Freedoms, concerning the
Abolition of the Death Penalty in all Circumstances, May 3, 2002,
ETS No. 187, available at: http://conventions.coe.int/Treaty/
Commun/ChercheSig.asp?NT=187&CM=&DF=&CL=ENG (last
visited Apr. 25, 2014) (Signed by BiH on May 3, 2002, ratified on
Jul. 29, 2003, and entered into force on Nov. 1, 2003).
after 10 years. 20 + 10 = 30. [The prisoner] would not have to serve
any other sentence, any remaining sentences being extinguished, as
provided for in the applicable Criminal Code, once those already
imposed cover that maximum, which may not exceed thirty years.”)
(emphasis in original).
36 Id. ¶ 64.
37 See Berlusconi v. Italy, ECJ, Joined Cases Nos. C-387/02,
C-391/02 and C-403/02, ¶ 68 (2005).
38 See id. ¶ 77.
39 Norway v. Breivik, OSLO-2011-188627-24E § 4.2.1 (2012)
(Norway).
40 Id. at 47-48.
41 Appeals of Milenko Trifunović, Nikola Andrun, Slobodan
Jakovljević et al. (including Branislav Medan, Brano Džinić and
Aleksandar Radovanović), Mile Pekez et al. (including another
individual named Mile Pekez and Milorad Savić), and Petar
Mitrović. Since October 22, 2013, the Constitutional Court of BiH
subsequently adopted similar decisions in the cases of Suad Kapić,
Zrinko Pincić, Novak Đukić and others.
42 Currently, the majority of war crimes are tried before the Court
of Bosnia and Herzegovina, and, increasingly, before Cantonal
courts (in Federation of BiH) and District courts (in Republika
Srpska), as well as the courts in District of Brcko. For the purposes
of this article, only the Court of BIH’s jurisprudence is relevant, as
all the other levels applied Criminal Code of SFRY in ninety-nine
percent of cases. It is important to note that Court of BiH is composed of trial chambers that try the cases in first degree and appeals
chambers dealing with appeals. There is a possibility in certain
cases to appeal this decision to the third instance (in cases where
15
State Obligations to Protect the Lives and Health of Women
After Abortion or Miscarriage
by Angie McCarthy*
quality of care depends on whether hospital staff label their
abortion as spontaneous or induced — or, in other words, legitimate or illegitimate.6
“Carmen and Manuela, Salvadorian women, both suffered complications during labor leading to stillbirths. When
the women sought follow-up medical care, doctors accused
both women of having undergone abortions in violation of El
Salvador’s restrictive abortion law. Police immediately arrested
them for homicide — one of the women was shackled while she
was still receiving critical medical care. Both were sentenced
to more than [thirty] years in prison. In Carmen’s case, after
more than eight years in prison, a judge ordered her release,
acknowledging that a mistake
had been made. Nevertheless,
the government never compensated Carmen for the grievous rights violations. Manuela
died in prison; she had suffered
from Hodgkin’s lymphoma — a
form of cancer — before she
even became pregnant, but she
received treatment only after it
was too late to save her.”1 She
never had a chance to speak to
a lawyer.2
In hospitals worldwide, medical workers subject women
seeking post-abortion care to mistreatment, exploitation, and
violations of confidentiality and privacy.7 Examples of mistreatment include: chastising women for procuring abortions,
denying women care, reporting women who arrive with complications to the police, shackling hemorrhaging women to
hospital beds, intentionally withholding the use of proper pain
control during procedures,8 and
attempting to obtain confessions
as a precondition for receiving
potentially life-saving medical
treatment.9 In addition, many
hospitals require staff to report
women suspected of having
an abortion to the police, even
though in most cases it is impossible to know if a pregnancy was
terminated intentionally or if a
woman has spontaneously miscarried. This uncertainty, coupled with a desire to punish women
who have had abortions, creates problematic situations where
women are charged, prosecuted, and imprisoned for the crime
of obtaining an illegal abortion based on insufficient evidence,
denying them both due process and liberty.
[A]rriving at a public hospital
seeking treatment for a miscarriage is
a “risky business because instead of
[receiving] medical care you might
find yourself being cuffed to the bed
and accused of ‘murder.’”
A
Introduction
nnually, approximately five million women and girls
suffer short and long-term injuries due to unsafe abortions.3 When these women and girls seek emergency
obstetric treatment in health facilities, they are often met with
hostility and judgment from health care providers and are subsequently denied access to basic medical care. In addition, many
women who suffer miscarriages, stillbirths, or induced abortions
are also mistreated and jailed.4 These women are punished simply because their bodies fail to sustain a pregnancy, not because
they violated any law. In countries where there is a strict abortion
ban, such as El Salvador, arriving at a public hospital seeking
treatment for a miscarriage is a “risky business because instead
of [receiving] medical care you might find yourself being cuffed
to the bed and accused of ‘murder.’”5 For these women, their
State Obligations Under International Law
Regardless of the legality of abortion, under international
law, states have both a negative obligation to refrain from
violating women’s rights and a positive obligation to promote
and protect them. This includes protecting women from harmful acts by private persons or entities, including the public and
private health sector. The abusive treatment patterns described
above violate women’s rights, including the right to be free from
violence and torture and other cruel, inhuman, and degrading
treatment as well as the right to health and liberty and security
of person.
* Angie McCarthy is the Program Coordinator in the Women and
the Law Program at American University Washington College of
Law (AUWCL). Angie holds a JD from AUWCL and an MPhil in
International Peace Studies from Trinity College in Dublin, Ireland.
As a law student, Angie represented clients in the Women and the
Law Clinic. Prior to attending AUWCL, Angie was a Graduate Peace
Fellow at Peace Brigades International, USA and worked with several
women’s organizations both domestically and abroad, including the
NGO Committee on the Status of Women at the United Nations and the
New Women’s Movement in South Africa.
To Prevent Violence Against Women
Human rights bodies have recognized that the abuse and
mistreatment of women seeking reproductive health services
can cause tremendous and lasting physical and emotional suffering. There are several international instruments that prohibit
such violence against women, including the Convention on the
16
Elimination of All Forms of Discrimination
Against Women (CEDAW) 10 as well
as regional treaties such as the InterAmerican Convention on the Prevention,
Punishment and Eradication of Violence
Against Women (Convention of Belém do
Pará),11 the Council of Europe Convention
on Preventing and Combating Violence
Against Women and Domestic Violence
(Istanbul Convention),12 and the Protocol
to the African Charter on Human and
Peoples’ Rights on the Rights of Women
in Africa (Maputo Protocol).13
post-abortion care on conditional access,
withholding care for the “impermissible
purposes of punishment or to elicit confession,”22 arbitrarily refusing treatment
for incomplete abortions or withholding
available pain medication,23 or shackling
women suspected of illegal abortions to
hospital beds.
According to Ipas, a non-governmental
organization striving to end preventable
deaths and injuries from unsafe abortions,
some Peruvian medical professionals
reportedly deny women anesthesia or pain
These instruments take a broad view
medication to punish women for having
of violence. The Convention of Belém
abortions, believing that the denial of adedo Pará, for example, defines violence
quate anesthesia for post-abortion care is
against women as “physical, sexual and
a type of mistreatment that women should
psychological violence”14 that “occurs in
“put up with.”24 In Brazil, Ipas reported
the community and is perpetrated by any
cases of women who were handcuffed to
person,” which includes acts such as torhospital beds while police investigated
ture and sexual harassment in health facil- Women’s Rights are Human Rights at the May
their allegations. In one reported instance,
ities.15 It also states that every woman has Day Immigration Rights Rally- photo courtesy of a woman remained handcuffed to the
the right to “have her physical, mental and takomabibelot on Flickr Creative Commons
hospital bed for three months because she
moral integrity respected.”16 Moreover,
could not afford to post bail.25 Although
the Istanbul Convention defines violence
there is no explicit prohibition against
against women as “all acts of gender-based violence that result
shackling women seeking post-abortion treatment, the internain, or are likely to result in, physical, sexual, psychological or
tional community condemns several similar practices, such as
economic harm or suffering to women, including threats of
shackling female prisoners during labor or caesarian sections.26
such acts, coercion or arbitrary deprivation of liberty, whether
The UN Special Rapporteur on Torture, Juan E. Méndez,
occurring in public or in private life.”17 The CEDAW Committee
noted that some medical professionals condition life-saving
defines discrimination as acts (or threats of acts) that inflict
treatment upon the extraction of confessions of women under
“physical, mental or sexual harm or suffering and other deprivaduress, which he finds may, in certain circumstances, constitute
tions of liberty” on women.18
cruel and inhuman treatment. The CAT Committee similarly
Women suffer physical harm, and sometimes death, when
views these practices as contrary to the UN Convention against
medical care is delayed or they are treated inadequately and
Torture, and recently called on the Chilean government to
unsafely. Women also suffer psychological harm when they are
eliminate any practices of extracting confessions for prosecuthreatened with physical harm, intimidated, insulted and humilition purposes when women seek emergency medical care. In
ated, and denied even the most basic medical care.19 When govaddition, the CAT Committee urged the Chilean government to
ernments tolerate abuse of women seeking post-abortion care
investigate and review convictions where statements obtained by
at the hands of health care providers, and later fail to provide
such coercion were admitted into evidence, and to take approprimeaningful remedies, they effectively condone this violence.20
ate remedial measures, such as nullifying the convictions.27
To fulfill their obligations, states must prevent this violence
State obligations to prohibit, prevent, and redress torture
against women by all means “of a legal, political, administrative
and ill-treatment extend to “all contexts of custody or control,”
and cultural nature that ensure the safeguard of human rights,
which includes hospitals and other settings where the “failure
and that any possible violation of these rights” is investigated,
of the [s]tate to intervene encourages and enhances the danger
prosecuted, and punished.21
of privately inflicted harm.”28 Thus, even though the intentional
denial of pain management and procurement of coerced confesTo Prevent Torture and Cruel, Inhuman and
sions occur at the hands of private health practitioners rather
than state actors, the state is not absolved from responsibility.
Degrading Treatment
Further, states have a positive obligation to investigate credible
Women seeking emergency post-abortion care may suffer
allegations of torture or ill treatment in all settings.29 Public
cruel, inhuman and degrading treatment at the hands of mediand private hospitals are no exception. Accordingly, states must
cal professionals. Recently, the UN Committee against Torture
investigate and punish acts by medical staff responsible for vio(CAT Committee) recognized that women are particularly
lating women’s rights.
vulnerable to torture or ill-treatment in the context of medical
treatment, especially when seeking reproductive health services.
Women’s rights are violated in several ways, including in the following circumstances: denying post-abortion care or providing
17
medical intervention to save her life.”42 Unduly delaying or
denying medical care to women and girls experiencing obstetric
complications — even problems unrelated to abortion such as
ectopic pregnancies, hypertension, or hemorrhages — “can only
increase the risk that women and girls will die or suffer serious
long-term health complications.”43 Delaying life-saving treatment and letting women die or suffer from long-term adverse
health effects is a clear violation of international law, raising
serious concerns within the international community.
To Promote and Protect the Right to Health Free
of Discrimination
Women continue to suffer gender discrimination in the
health system because of persistent gender stereotypes that
imply that women “should prioritize childbearing over all other
roles they might perform or choose,” and that “nothing should
be more important for women than the bearing and rearing [of]
children.”30 The “enjoyment of the highest attainable standard
of health is one of the fundamental rights of every human
being,”31 and state obligations to realize the rights are enshrined
in various international and regional instruments.32 Further,
states are required to guarantee women access to quality health
care free from discrimination.33 Quality health services include
those circumstances in which complications arise from unsafe
abortions and miscarriages,
regardless of the legal status
of abortion.34 As such, states
are required to undertake measures to ensure access to postabortion care for all women and
girls, free from discrimination,
violence, or coercion. This obligation includes the provision of
“adequate training, support, and
supplies to ensure that abortionrelated complications can be
treated, irrespective of the legality of abortion.”35
The Right to Due Process
The Universal Declaration of Human Rights affirms that
every person “is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and
obligations and of any criminal
charge against him.”44 The fundamental right to due process
and presumption of innocence
are echoed by regional human
rights treaties and are enshrined
in constitutions worldwide.
States that criminalize abortions nonetheless maintain an
obligation to ensure the right
to a fair trial and a presumption of innocence. Accordingly,
women seeking post-abortion care, even those in conflict with
the law, should still benefit from all provisions associated with
the right to a fair trial and equality before the courts without
discrimination.45
Human rights bodies have
recognized that the abuse and
mistreatment of women seeking
reproductive health services can
cause tremendous and lasting
physical and emotional suffering.
To fulfill their obligations, states must address the systemic
discrimination, stereotypes, and stigma that exist in medical
communities surrounding abortion and invest in human rightsbased training of health personnel and the judiciary to uphold
the rights of women.36 Further, states can no longer rely on
NGOs to collect valuable data on the treatment (or mistreatment) of women in health care facilities; they must collect it
themselves. The CEDAW Committee expressly stated that States
Parties should report on how public and private healthcare providers meet their duties with respect to a woman’s right to access
healthcare free from discrimination.37 High quality data has the
ability to spur positive interventions, and can be used as a tool
to hold states accountable for looking the other way when these
violations occur.
Though elements of the crime of abortion and severity
of punishment vary from country to country, some countries
impose lengthy prison sentences on women and girls who seek
an abortion and on health professionals who provide abortion
services and life-saving and health-preserving obstetric care.46
However, because most abortions are clandestine, prosecutors
rely heavily, and sometimes exclusively, on medical professionals to report women to the police. Reporting is conducted
either by reporting women outright on the basis of suspicion of
having an abortion, or by coercing confessions as a condition of
life-saving care. This creates an atmosphere in health facilities
where, in effect, every woman who arrives at a public hospital
in the process of miscarrying is suspected of acting to terminate
her pregnancy.47 These denouncements are of particular concern
because it is “often difficult and in some cases impossible to
prove whether a woman suffered a miscarriage or had an abortion — leaving women and girls at risk for false accusations.”48
For example, in 2009, in the southern state of Quintana Roo,
Mexico, a Mayan woman was wrongfully jailed for what turned
out to be a spontaneous miscarriage.49 In Nepal, a woman took
pain medication during her seventh month of pregnancy and
subsequently miscarried — she was accused of inducing an
abortion and thereafter was imprisoned.50 In Brazil, between
2007 and 2011, there were 334 police reports involving women
who allegedly had illegal abortions, and court records show that
128 of these women were prosecuted.51 These injustices are
magnified when women facing false accusations have no assistance from or access to counsel.
The Right to Life
The right to life is a fundamental right enshrined in various
international and regional treaties, and a peremptory norm binding all states to respect the right to life of all.38 According to the
UN Human Rights Committee, denying women access to “lifesaving obstetric care, including post-abortion care, is a violation
of their right to life.”39 According to a Human Rights Watch
study, some women seeking post-abortion care in Argentinian
hospitals were simply denied treatment, or were left to wait for
a very long time before receiving care, sometimes leading to
death.40 In other instances, healthcare workers have “refused
to treat women suffering from complications resulting from
a clandestine abortion performed elsewhere.”41 In Nicaragua,
“there have been several documented cases in which the death
of a pregnant woman has been associated with the lack of timely
18
When doctors and hospital staff substitute their own moral
judgment and preempt the legal system by reporting women
to law enforcement prior to confirming that an abortion took
place, they violate her presumption of innocence. Moreover, if
law enforcement then fail to investigate, and prosecutors base
charges on evidence that is insufficient to prove with certainty
that an abortion took place, the justice system denies women
due process of the law. In 2011, the UN Special Rapporteur on
the Right to Health Anand Grover suggested that, as an interim
measure, states should formulate “policies and protocols by
responsible authorities imposing a moratorium on the application of criminal laws concerning abortion, including legal duties
on medical professionals to report women to law enforcement
authorities.”52
law, “health systems need to ensure that sufficient numbers of
staff are trained and available to offer the procedure without the
punitive attitudes and systematic actions that constitute institutional violence.”57 For example, the International Conference on
Population and Development (Cairo) Plan of Action urges governments at all levels to monitor and evaluate patient services
with a view to “detecting, preventing and controlling abuses
by family-planning managers and providers,”58 and “to secure
conformity to human rights, and to ethical and professional standards in the delivery of family planning and related reproductive
health services.”59 Developing clear guidelines has the potential
to save women’s lives and encourage doctors willing to give lifesaving treatment by providing cover from punitive prosecutions.
Medical Personnel Must Be Held Accountable by
States and the Advocacy Community
Proposed Advocacy Strategies
While international law provides a useful framework for
victim’s advocates, ultimately change must come at a local
level. In addition to seeking to legalize or decriminalize abortion
services in their countries, reproductive rights advocates should
also pressure local justice systems to hold medical personnel
accountable for the mistreatment of women seeking emergency
obstetric care. These charges do not have to implicate women’s
human rights but can be brought as claims for denial of due
process guaranteed by the national constitution — particularly in
situations where women are imprisoned on the basis of coerced
confessions or insufficient evidence. In 2001, an Interim Report
of the UN Special Rapporteur on the Independence of Judges
and Lawyers noted that “judges must be in a position to challenge gender stereotyping and discrimination when they encounter it in the form of wrongful charging of suspects, charges being
brought without any supporting evidence of wrongdoing and
merely on the basis of hearsay, or mis-charging of a particular form of conduct (like charging abortion as infanticide).”60
Alternatively, advocates could bring cases against healthcare
professionals for malpractice or negligence under local laws
for violations of patient confidentiality or the harm to or death
of a female patient they treat. Putting pressure on domestic
legal systems to release women who have been imprisoned for
abortion-related crimes merely to make a statement may serve to
alter the attitudes of some medical professionals who abuse the
justice system and impose their own moral judgment on women.
Developing Guidelines For Health Providers May
Reduce Incidents of Mistreatment for Women
Seeking Emergency Obstetric Care
Sometimes health care practitioners delay or deny women
life-saving treatment not solely as punishment, but also because
of confusion or lack of clarity as to their responsibilities as well
as fear they will be prosecuted. Ireland recently made headlines
when a woman died of blood poisoning after being refused
a procedure to terminate her pregnancy even though she suffered a miscarriage.53 This tragic situation renewed concerns
about the difficulties created by Irish laws that prohibit abortion
except in cases where the mother’s life is at risk, without any
real guidelines for doctors to follow to make that assessment.54
In Nicaragua, where there is a total ban on abortion, doctors
who follow obstetric protocols and intervene to save a woman
from dying of obstetric complications “risk their professional
career and, potentially, their liberty.”55 One doctor in Nicaragua
interviewed by Amnesty International stated that constraints on
medical judgment and limits on treatment for pregnant women
and girls make medical expert opinions worthless and potentially cause fatal delays in treatment or the denial of specific
kinds of treatment.56
Regardless of the legality of abortion, states have an obligation to both protect the life of the woman and ensure access to
quality healthcare. In situations where it is legally permissible
for doctors to intervene but they intentionally delay intervention to punish women for having abortions, the state has a duty
to hold these doctors accountable. In situations where maternal
death is caused by ambiguity in the law, such as the case in
Ireland, states have an obligation to develop clear guidelines
about the intersection between the law and obstetric protocols
that inform medical staff of their obligations to treat women
humanely and with dignity, and outline the consequences for
failing to do so. These guidelines should begin with the premise
that a woman’s life is of equal value to that of an unborn fetus.
Finally, in countries where therapeutic abortion is permitted by
Conclusion
The rights of women seeking care after an abortion should
not depend on whether that abortion was spontaneous or induced
— and a woman should never be harassed, denied pain relief and
life-saving care, or imprisoned for failing to sustain a pregnancy.
When ample evidence suggests that these abuses are happening,
the failure of state action is a breach of international law. States
must hold medical personnel responsible for violating women’s
rights, and advocates must continue to pressure states to fulfill
their obligations.
19
Endnotes
1 Ctr. for
21 González
Repro. Rts., Whose Right to Life? Women’s Rights
and Prenatal Protections under Human Rights and Comparative
Law 15 (2012).
2 Id.
3 See Special Rapporteur of the Human Rights Council, Interim
Report on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, ¶ 25, U.N. Doc.
A/66/254 (Aug. 3, 2011) (by Anand Grover).
4 See World Health Org., Unsafe Abortion: The Preventable
Pandemic 6 (2006).
5 Amanda Marcotte, Women Jailed for Miscarriages in El
Salvador, Slate (Oct. 18, 2013), http://www.slate.com/blogs/
xx_factor/2013/10/18/el_salvador_abortion_ban_women_are_showing_up_at_public_hospitals_while.html.
6 See Joaquina Erviti et al., Strategies Used by Low-Income
Mexican Women to Deal With Miscarriage and “Spontaneous”
Abortion, 14 No. 8 Qualitative Health Research 1058, 1060
(2004).
7 See Ctr. for Repro. Rts., Surviving Pregnancy and Childbirth:
An International Human Right 9 (2005), available at http://reproductiverights.org/en/document/surviving-pregnancy-and-childbirthan-international-human-right.
8 Deborah L. Billings et al., Scaling-up a Public Health
Innovation: A Comparative Study of Post-Abortion Care in Bolivia
and Mexico, Social Science & Medicine 2210, 2211 (2007), available at http://www.ipas.org/~/media/Files/Ipas%20Publications/
BillingsSSM2007.ashx.
9 See Special Rapporteur of the Human Rights Council, Report
of the Special Rapporteur on torture, and other cruel, inhuman or
degrading treatment or punishment, ¶ 46, U.N. Doc. A/HRC/22/53
(Feb. 1, 2013) (by Juan E. Méndez) [hereinafter SRT Méndez
Report on Healthcare Abuses], available at http://antitorture.org/
wp-content/uploads/2013/03/A.HRC_.22.53_English_Thematic_
Healthcare.pdf.
10 See generally U.N. Comm. on the Elimination of All Forms
of Discrimination Against Women, Gen. Rec. No. 19, U.N. Doc.
A/47/38 (1992) [hereinafter CEDAW General Rec. No. 19], available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm.
11 Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women (“Convention of Belém do
Pará”), June 9, 1994, 27 U.S.T. 3301, 1438 U.N.T.S. 63 [hereinafter
Convention of Belém do Pará].
12 Council of Europe Convention on Preventing and Combating
Violence Against Women and Domestic Violence (Istanbul
Convention), Council of Europe, April 7, 2011 [hereinafter Istanbul
Convention].
13 Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa, 2nd Ordinary Sess., Assembly of
the Union, adopted July 11, 2003.
14 Convention of Belém do Pará, supra note 11, art. 2 (a).
15 Id. art. 2(b).
16 Id.
17 Istanbul Convention, supra note 12, art. 3.
18 See CEDAW Gen. Rec. No. 19, supra note 10, ¶ 16.
19 See Maria de Bruyn, Ipas, Violence, Pregnancy and Abortion
Issues of Women’s Rights and Public Health 25 (2003), available at http://www.ipas.org/~/media/Files/Ipas%20Publications/
VioPregAbortionEng2.ashx.
20 See id.
et al. (“Cotton Field”) v. Mexico. Merits, Reparations,
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 252
(Nov. 16, 2009).
22 SRT Méndez Report on Healthcare Abuses, supra note 9, ¶ 50.
23 Human Rights Law and Access to Abortion, Hum. Rts. Watch
(June 15, 2005), http://www.hrw.org/es/news/2005/06/15/qa-humanrights-law-and-access-abortion.
24 See de Bruyn, supra note 19, at 26.
25 See Ipas, Submission to U.N. Comm. on the Elimin. of Discrim.
against Women, CEDAW Gen. Discussion on Access to Justice,
Feb. 18, 2013 [hereinafter Ipas CEDAW Submission], available at
http://www2.ohchr.org/english/bodies/cedaw/docs/Discussion2013/
Ipas.pdf.
26 See Amnesty Int’l USA, Not part of my Sentence: Violations
of the Human Rights of Women in Custody 11 (1999), available at
http://www.amnesty.org/en/library/info/AMR51/019/1999.
27 Ctr. for Repro. Rts., Reproductive Rights Violations as
Torture and Cruel, Inhuman, or Degrading Treatment or
Punishment: A Critical Human Rights Analysis 7 (2010).
29 See Joseph Amon & Diederik Lohman, Denial of Pain
Treatment and the Prohibition of Torture, Cruel, Inhuman or
Degrading Treatment or Punishment, 16 No. 4 Interights Bulletin
172 (2011).
30 See Simone Cusack & Rebecca J. Cook, Stereotyping Women in
the Health Sector: Lessons from CEDAW, 16 Wash. & Lee J. Civ.
Rts. & Soc. Just. 47, 57 (2009).
31 Constitution of the World Health Organization, Preamble ¶ 1,
July 22, 1946, 14 U.N.T.S. 185.
32 See Amnesty Int’l, The Total Abortion Ban in Nicaragua:
Women’s Lives and Health Endangered, Medical Professionals
Criminalized 29 (2009) [hereinafter Amnesty Int’l Nicar.].
33 Convention on the Elimination of All Forms of Discrimination
Against Women, G.A. Res. 34/180, art. 12(1), U.N. Doc. A/34/46
(Sept. 3, 1981).
34 See Special Rapporteur of the Human Rights Council, Interim
Rep. on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, ¶ 30, U.N. Doc.
A/66/254 (Aug. 3, 2011) (by Anand Grover).
35 Ctr. for Repro. Rts., Reproductive Rights: A Tool for
Monitoring States Obligations 18 (2013).
36 See Ctr. for Hum. Rts. & Humanitarian Law Anti-Torture
Initiative, Torture in Healthcare Settings: Reflections on the
Special Rapporteur on Torture’s Thematic Report 64 (2013).
37 See U.N. Comm. on the Elimination of All Forms of
Discrimination Against Women, Gen. Rec. No. 24, U.N. Doc.
A/54/38, ¶14 (1999).
38 See Vickie Knox, Abortion in the Americas: Non-discrimination
and Equality as Tools for Advocacy and Litigation, 9 Equal Rts.
Review 25 (2012).
39 Amnesty Int’l Nicar., supra note 32, at 30.
40 See Human Rights Watch, Decisions Denied: Women’s Access
to Contraceptives and Abortion in Argentina 2 (2005).
42 U.N. Comm. against Torture, Concluding Observations:
Nicaragua, ¶ 16, U.N. Doc. CAT/C/NIC/CO/1 (2009).
44 Universal Declaration of Human Rights, art. 10, G.A. Res. 217
(III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
45 See IPAS, Maternal mortality, Unwanted Pregnancy and
Abortion as Addressed by International Human Rights Bodies:
Statements from treaties, Treaty Monitoring Committees, Special
20
exposing-the-role-of-health-professionals-the-police-the-courts-andimprisonment-internationally-for-28-September-2013.pdf.
52 Grover, supra note 34, ¶ 65.
53 See Failure in Basic Care of Savita Halappanavar, BBC
News (Oct. 9, 2013, 11:39 AM), http://www.bbc.com/news/worldeurope-24463106.
54 See id.
56 See id. at 18.
57 de Bruyn, supra note 19, at 44.
58 Programme of Action, International Conference on Population
and Development, ¶ 7.17, A/CONF.171/13/Rev.1 (1995).
59 Id.
60 Ipas CEDAW Submission, supra note 25, at 2.
Rapporteurs, Human Rights Commissions and Human Rights
Courts 13 (2012), available at http://www.ipas.org/~/media/Files/
Ipas%20Publications/IHRCOMPD2E12.ashx.
46 See id. at 7.
47 See Erviti, supra note 6, at 1059–60.
49 See Mary Cuddehe, Mexico’s Anti-Abortion Backlash, The
Nation (Jan. 4, 2012), http://www.thenation.com/article/165436/
mexicos-anti-abortion-backlash.
50 See de Bruyn, supra note 19, at 27.
51 See Int’l Campaign for Women’s Right to Safe Abortion,
Abortion in the Criminal Law: exposing the role of health professionals, the police, the courts and imprisonment internationally 7 (2013), available at http://www.safeabortionwomensright.
org/wp-content/uploads/2013/09/Abortion-in-the-criminal-law-
21
El Testimonio Ixil Pesa Más:
Reflections on the Guatemalan Genocide Trial
One Year Later
by Christina M. Fetterhoff*
T
Introduction
The History of Guatemala Was Written
with the Left Hand
hey came to court every day, dressed in traditional Mayan
clothing, crowding the large room, the women patiently
helping each other adjust the interpretation earphones
over the cintas adorning their heads. The women created a sea
of color in the otherwise tense, somber, and muted atmosphere,
the cheerfulness of their textiles in stark contrast to the horrific
details of the testimony being heard.
In his testimony about the events giving rise to the peace
and reconciliation process that took place in Guatemala during the mid-1990s, Manuel Eduardo Conde Orellana, a former
member of the National Reconciliation Commission, stated,
“the history of Guatemala was written with the left hand.”1 He
was referring to the sinister violence of the armed conflict that
took place in the country for
thirty-six years and left more
than 200,000 people dead.2
According to the final report
published by the Commission
for Historical Clarification,
Guatemala: Memory of Silence,
eighty-three percent of the victims were indigenous Mayans.3
One year later, this is the
image that remains most vividly
in my head—the survivors of the
Guatemalan genocide who traveled so bravely from their towns
in the Ixil Triangle to the Palace
of Justice in Guatemala City
to represent thousands of others who did not have a chance.
I remember too, of course,
the judges, the attorneys, and
the expert witnesses, as well
as scores of reporters and civil
society observers watching history unfold. I remember the defendants, small and weak, and
the Nobel Peace Prize winner, Rigoberta Menchú, mightier than
us all.
This vacated verdict creates another
roadblock to justice in Guatemala,
leaving what should have been a
victory for accountability in tatters and
instead creating uncertainty for future
prosecutions that seek to address the
wrongs of the past.
The Guatemalan armed
conflict needs to be considered
within the broader contexts of
the Cold War and the endemic
inequality that affects all of
Latin America. In 1954, the United States Central Intelligence
Agency sponsored a paramilitary-led coup d’état, which overthrew reformist President Jacobo Árbenz. This episode began
a period of state violence against Guatemalan citizens until the
mid-1960s when armed leftists groups consolidated and counter-attacked, similar to what took place in other Latin American
countries during this time.4 The Unidad Revolucionaria Nacional
Guatemalteca (URNG) became the most powerful of these leftist military groups and was the main target of the anti-insurgent
war. This war dragged on for decades and reached its bloody
apex in the scorched earth campaign directed by the government
of José Efraín Ríos Montt during 1982–83.5 The purpose of this
campaign was to destroy anything and everything considered
potentially beneficial to enemy combatants.
The trial of Efraín Ríos Montt and Mauricio Rodríguez
Sánchez made history in the spring of 2013 for being the first
time a former head of state was tried in domestic court for genocide and crimes against humanity. Unfortunately, the trial also
made history for turning into a procedural circus, with attorneys
walking out of the courtroom and other courts intervening to the
extent that the verdict was actually vacated just ten days after
it was issued. This vacated verdict creates another roadblock to
justice in Guatemala, leaving what should have been a victory
for accountability in tatters and instead creating uncertainty for
future prosecutions that seek to address the wrongs of the past.
As part of this campaign of violence, the Guatemalan army
also focused on the indigenous Maya Ixil communities in the
Quiché region, in western Guatemala because, as a result of
deep-seated cultural and ethnic hatred, the army viewed the Ixil
as an easy target and scapegoat.6 The government justified the
army’s presence in Quiché by alleging that indigenous community members were in danger because of the armed leftist
groups. At the same time, however, it justified the army’s killing sprees by claiming that these same community members
* Christina M. Fetterhoff is a 2014 J.D. candidate at American
University Washington College of Law. As Co-Editor-in-Chief of
the Human Rights Brief during 2012–13, she had the opportunity
to travel to Guatemala with Ali Beydoun, Director of the UNROW
Human Rights Impact Litigation Clinic, to observe part of the genocide trial. She thanks Prof. Beydoun and Atty. Christian González for
their help with this reflection.
22
were guerrilla combatants. The indigenous people who were not
killed or who did not flee were taken to camps where they were
forced to serve the army in community surveillance groups.7 The
military left the victims’ remains in the ashes; when they had the
chance, community members buried them as best they could.
Years later, the Guatemala Forensic Anthropology Foundation
discovered the bones and began to put together the story of the
mass murders and targeted killings that had taken place.8 The
information collected from the forensic anthropological investigations became vital not only as evidence in the Ríos Montt and
Rodríguez Sánchez trial, but also as a link to the truth of the past
for the Maya Ixil communities.
The violence substantially diminished in the final years of
the 1980s, and in 1996 the United Nations (UN) negotiated a
Peace Accord between the Guatemalan government and representatives of the URNG.9 The Peace Accord included provisions
for the respect of human rights in the Comprehensive Agreement
on Human Rights, the creation of a Historical Clarification
Commission, and an Agreement on the Identity and Rights of
the Indigenous Peoples.10 Since then, Guatemala has tried to
restore its international image as a peaceful, democratic, and just
country. The country has attempted to reconcile the violence of
the past with citizen unification efforts with only limited success, given that those responsible for the violence continued
to hold positions of power. Ríos Montt, for example, became a
member of the Guatemalan Congress several years after leaving
the presidency, in order to maintain his immunity and remained
in Congress until 2012.11
The Role of the International Commission
Against Impunity in Guatemala and the Creation
of High-Risk Courts
The International Commission against Impunity in
Guatemala (Comisión Internacional Contra la Impunidad en
Guatemala — CICIG) was created in December 2006 with the
signing of an agreement between the UN and the Guatemalan
government.12 Based on a mutual understanding of the need for
an international presence to strengthen the rule of law and promote accountability in Guatemala, the CICIG seeks “to support
the Public Prosecutor’s Office, the National Civil Police, and
other State institutions in the investigation of crimes committed
by members of illegal security forces and clandestine security
structures and, in a more general sense, help to disband such
groups.”13 According to the explanation of its functions, CICIG,
although created with the support of the UN, “operates under
Guatemalan law, in Guatemalan courts, using Guatemalan criminal procedure.”14 As part of its mandate, CICIG offers technical
assistance to the justice system and has the power to recommend legislative reforms to strengthen judicial institutions.15
Guatemalan women look toward the prosecuting attorneys
Furthermore, it has a Special Prosecutor Against Impunity who
investigates cases specifically selected by the Public Ministry,
which are always cases with high social impact.16 One of the
institutional reforms proposed by the CICIG to better deal with
these high social impact cases was the creation of the tribunals
known as High Risk Courts.
The country has attempted to reconcile the violence of the past with citizen
unification efforts with only limited success, given that those responsible for the
violence continued to hold positions of power.
23
Due in part to the CICIG recommendation, in 2009, the
Guatemalan Congress approved the Law for the Strengthening
of Criminal Prosecution, which in turn created the High Risk
Courts.17 The High Risk Courts function as courts of first
instance under the structure of the Supreme Court of Justice.
As described by their name, these courts deal with criminal
cases of high social impact. Their judges enjoy broader protections and receive special attention from the justice system to
accelerate judicial processes when they are presiding over a
case.18 According to Articles 2 and 3 of Supreme Judicial Court
Agreement 6-2009 regarding competency for high risk cases,
certain characteristics are required for a case to be labeled as
high risk.19 For example, the case must involve both a violent
felony, such as femicide or kidnapping, as well as a high probability of risk to the physical integrity of those involved in the
prosecution of the case.20 For this reason, the Ríos Montt and
Rodríguez Sánchez case was brought before the High Risk
Court of Judge Yassmin Barrios and the beginning of the trial
moved very quickly.
Crime of Genocide (Genocide Convention), to which Guatemala
is a State Party.24 The Convention defines the crime of genocide
in its second article as the following:
[A]ny of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members
of the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births
within the group;
(e) Forcibly transferring children of the group to
another group.25
The Criminal Code contains basically the same language and
adds a prison sentence of thirty to fifty years for committing
genocide.26
“Never Again” Arrives in Court
For many, the January 26, 2012 indictment of Ríos Montt and
Rodríguez Sánchez for genocide and crimes against humanity
was an important step in the journey toward truth and justice.21
The indictment occurred two weeks after Ríos Montt ceased
being an elected official and enjoying immunity for his status
as a parliamentarian. Judge Carol Patricia Flores — the same
judge who would later declare the ensuing trial null and void —
read the indictment issued by Attorney General Claudia Paz y
Paz, based on Articles 376 (genocide) and 378 (crimes against
humanity) of the Guatemalan Criminal Code.22
Although the Genocide Convention requires that all States
Parties, currently numbering 144 countries, implement domestic legislation mandating either the prosecution or extradition
of anyone accused of the crime of genocide,27 the Ríos Montt
indictment marked the first national indictment for the crime
of genocide. The Guatemalan trial must be distinguished from
the trials undertaken by the International Criminal Tribunals for
Rwanda and the Former Yugoslavia, as it represents a monumental step towards increased accountability within the domestic
sphere for grave international crimes.
Guatemala amended its Criminal Code in 1972 to include
the crime of genocide,23 according to the definition given in
the 1948 Convention on the Prevention and Punishment of the
Genocide: International Crime Made National
In international human rights law there is a category of rights
that are non-derogable — also known as jus cogens norms or
preemptory norms. This principle holds that some rights are
so essential that it is universally understood that they cannot
be violated and no country will allow another to violate them
against their own citizens. The prohibition of genocide and of
the commission of crimes against humanity are considered nonderogable rights.28 Historically, when violations of these rights
have taken place, the international community has dealt with
them in international courts, such as the Nuremberg Trials, or
more recently the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and the International Criminal Tribunal
for Rwanda (ICTR). The UN created these courts to deal with
crimes committed in the Former Yugoslavia and Rwanda respectively, but the courts sit outside of those countries. The ICTY is
headquartered in The Hague, Netherlands,29 and the ICTR in
Arusha, Tanzania.30 Both the ICTY and the ICTR preceded the
creation of the International Criminal Court (ICC) in 1998,31
which has jurisdiction to try cases involving the citizens or the
territory of States Parties to the Rome Statute.
Guatemala acceded to the Rome Statute in April 2012.32 The
ICC would not have had jurisdiction over the alleged crimes of
Ríos Montt and Rodríguez Sánchez because the crimes occurred
before Guatemala became a State Party to the Rome Statute.
Judges Patricia Bustamante, Yassmin Barrios, and Pablo Xitumul
24
Regardless of the ICC’s jurisdiction, the principle of complementarity, which is enshrined in Article 17 of the Rome Statute,
gives domestic courts priority to try cases “unless the [s]tate is
unwilling or unable genuinely to carry out the investigation or
prosecution.”33 Therefore, the trial in Guatemala was another
example of how jus cogens norms have evolved.
be a simple “no” if the process does not restart or if the Court
issues a not guilty verdict. In a situation as delicate as the one
in Guatemala, it is important to recognize that the way justice is
defined is distinct and vulnerable.
Internationally recognized non-governmental organizations,
such as the International Center for Transitional Justice, argue
that access to the truth is an integral part of the struggle for
justice.37 Now that the world
has heard the testimony of
many survivors and has seen
the evidence presented by dozens of experts in anthropology and forensic archeology,
the truth of what happened in
the Maya Ixil communities in
Quiché Department in 1982–83
is revealed. They testified about
what happened to them. It is no
small event that finally so many
people had the opportunity to
travel to the Palace of Justice in
their own country and unburden
themselves of the horrors they
lived through during the armed
conflict. They had their day in court. However, it is one version
of the truth and there will always be those who have another
version. Without a definitive sentence against the accused, this
second version of the truth will be the one that remains in the
history books.
A Faltering Trial
Guatemala took significant
steps to bring its internal legislation into line with international
standards and to strengthen its
historically weak justice system
in order to try two of the most
highly sought after perpetrators from the brutal civil war
period. Based solely on these
preparations, it seemed that
Guatemala was ready to face its
bloody past and introduce itself
as the model country for others
emerging from a period of civil
war or internal armed conflict.
Guatemala incorporated the
crime of genocide and crimes against humanity into its Criminal
Code, established a special court to hear the case, declared that
the accused did not have immunity, and ensured that the country
was stable and peaceful enough to insist on an indictment.
The Guatemalan trial must be
distinguished from the trials undertaken
by the International Criminal Tribunals
for Rwanda and the Former Yugoslavia,
as it represents a monumental step
towards increased accountability
within the domestic sphere for grave
international crimes.
Unfortunately, not everything came together as smoothly as
it should have — the de facto situation created another reality.
Despite all the preparations, merely one week later, Guatemala’s
Constitutional Court vacated the guilty verdict that Judge
Barrios’ trial court issued on May 13, 2013, following scores
of legal challenges, including writs of amparo34 presented by
the defense attorneys under Article 265 of the Guatemalan
Constitution.35 The retrial is not scheduled to start until January
2015.36 Since November 2011, the defense attorneys have
insisted that the procedures are illegal and violative of the rights
of both the accused and their counsel. They have presented
amparo after amparo and the oral phase of the trial stalled. Each
time the Constitutional Court managed to untangle a group of
petitions, another group arrived. After thirty years of waiting for
a trial like this to become reality, everyone is waiting again to
see if there will be justice in Guatemala.
But, after so many judicial delays and derailments, it is also
quite possible that another verdict — whatever it is — would
again not have the weight necessary to survive the appeals
process. That which began as an accelerated process for the
security of those involved has now dragged on because of the
hierarchy of the court system in Guatemala. The attorneys will
keep arguing. The world will become disinterested, confused by
the steps being taken in a justice system that appears antiquated
and inadequate. The survivors will return to their homes and
feel disillusioned and betrayed by the persistent failure of justice. The defendants — both elderly — will die. The members
of civil society will return to their computers and will consider
the debate between truth and justice once again in situations of
transitional justice and cases of genocide. And that which could
have been an historic achievement will come to be considered
as just another example of how things do not work in countries
with weak justice systems. So, it is very possible that after all,
those involved with the first domestic prosecution for genocide
committed by a former head of state will have to be content
with truth instead of justice, and not justice achieved through
the truth.
Will there be justice in Guatemala?
The answer to the question of whether there will be justice
in Guatemala is not as simple as it might seem. It will not be a
simple “yes,” even if the judicial process finally reaches its end
and the Court issues another guilty verdict. It will likewise not
25
Endnotes
1 Manuel
16 Special
Eduardo Conde Orellana, Testimony Before the
Tribunal Primero A de Mayor Riesgo (April 9, 2013).
2 Commission for Historical Clarification, Guatemala Memory
of Silence: Report of the Commission for Historical Clarification
Conclusions and Recommendations, American Association for
the Advancement of Science (2009), available at http://www.aaas.
org/ sites/default/files/migrate/uploads/mos_en.pdf [hereinafter
Guatemala Memory of Silence].
3 Id.
4 Greg Grandin, The Blood of Guatemala: A History of Race
and Nation 7 (2000).
5 Id. at 16.
6 Id.
7 Id.; Guatemala Memory of Silence, supra note 2, at 32.
8 Guatemala Forensic Anthropology Foundation, http://www.
fafg.org/Ingles/paginas/FAFG.html (last visited April 16, 2014).
9 Guatemala Memory of Silence, supra note 2.
10 U.N. Secretary-General, Letter dated Apr. 5, 1995 from the
Secretary-General to the President of the General Assembly and
the President of the Security Council, U.N. Doc. A/49/882 (including the Agreement on Identity and Rights of Indigenous Peoples,
Annex) (Apr. 10, 1995); U.N. Secretary-General, Letter dated
June 28, 1994 from the Secretary-General to the President of the
General Assembly and the President of the Security Council, U.N.
Doc. A/48/954 (July 1, 1994) (including the Agreement on the
Establishment of the Commission to Clarify Past Human Rights
Violations and Acts of Violence that have Caused the Guatemalan
Population to Suffer, Annex II); U.N. Secretary-General, Letter
dated Apr. 8, 1994 from the Secretary-General to the President of
the General Assembly and to the President of Security Council,
U.N. Doc. A/48/928 (Apr. 19, 1994) (including the Comprehensive
Agreement on Human Rights, Annex I). A final peace accord was
signed in 1996. U.N. Secretary-General, Identical Letters dated Feb.
5, 1997 from the Secretary-General addressed to the President of
the General Assembly and to the President of the Security Council,
U.N. Doc. A/51/796 (Feb. 7, 1997) (including the Agreement on
a Firm and Lasting Peace, Annex II) [hereinafter Agreement on a
Firm and Lasting Peace].
11 Constitución Política de la República de Guatemala [C.P.], as
amended, legislative decree No. 18-3, Nov. 17, 1993 (Guat.), art.
161(a). (“(Deputies’ Privileges) of the Constitution of the Republic
of Guatemala states: The Deputies are representatives of the people
and dignitaries of the Nation; as a guarantee for the performance
of their duties they will enjoy, from the day they are elected, the
following privileges: 1) Personal immunity from being detained or
tried, if the Supreme Court has not previously stated that there is a
basis for a cause, after reviewing the investigating judge’s report.
The exception to this will be in cases of in flagrante delicto, in
which the accused deputy will be immediately placed at the disposition of the Council or Permanent Commission of Congress for corresponding pretrial actions.”).
12 Agreement Between the United Nations and the State of
Guatemala on the Establishment of an International Commission
Against Impunity in Guatemala, International Commission
Against Impunity in Guatemala, http://www.cicig.org/index.
php?page=mandate [hereinafter CICIG].
13 Id.
14 About CICIG, International Commission Against Impunity in
Guatemala, http://www.cicig.org/index.php?page=about.
15 Id.
Unit of the Prosecutor’s Office to Support CICIG,
International Commission Against Impunity in Guatemala, http://
www.cicig.org/index.php?page=special-prosecutor.
17 Diario de Centro América, Ley de Fortalecimiento de la
Persecución Penal, Decreto No. 17-2009 (Apr. 14, 2009).
18 Carol Yessenia Vargas Salguero, Inconstitucionalidad de los
Juzgados de Alto Impacto, Universidad Panamericana, (Nov. 2011).
19 Supreme Court of Justice, Acuerdo Número 6-2009:
Competencia en casos de mayor riesgo (May 18, 2009).
20 Id.
21 Kate Doyle, Justice in Guatemala, NACLA Report on the
Americas, Spring 2012, at 37, available at https://nacla.org/sites/
default/files/A04501039_10.pdf.
22 Código Penal de Guatemala [CPG] [Guatemalan Criminal
Code], as amended, Legislative Decree No. 20-96 (1996), Arts.
376, 378, available at http://www.oas.org/dil/esp/Codigo_Penal_
Guatemala.pdf.
23 Frank La Rue Lewy, Opinion, Reflexiones: Genocidio en
Guatemala (II), Prensa Libre, Sept. 2, 2012, http://www.prensalibre.com/opinion/Genocidio-Guatemala_0_643135693.html.
24 Convention on the Prevention and Punishment of the Crime
of Genocide, G.A. Res. 260, Status of Ratifications, opened for
signatures Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide
Prevention Convention].
25 Id.
26 Código Penal de Guatemala [CPG], art. 376.
27 Genocide Prevention Convention, supra note 24.
28 Barry E. Carter & Allen S. Weiner, International Law 112
(Wolters Kluwer, 6th ed. 2011).
29 S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (implementing the International Criminal Tribunal for Yugoslavia and
granting the court jurisdiction of the war crimes, crimes against
humanity, and acts of genocide occurring in the Former Yugoslavia
after 1991).
30 S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (implementing the International Criminal Tribunal for Rwanda and granting the court jurisdiction of the war crimes, crimes against humanity, and acts of genocide occurring in Rwanda in 1994).
31 Rome Statute of the International Criminal Court, art. 1, July 1,
2002, 2187 U.N.T.S. 38544.
32 Id. art. 17.
33 Id.
34 A writ of amparo is a remedy for the protection of constitutional rights. It serves the dual purpose of protecting an individual’s
basic rights and protecting the Constitution itself by ensuring that
state actions do not undermine the rights protected therein. The
right to amparo can be invoked by any person who believes that his
or her constitutional rights have been violated.
35 Constitución Política de la República de Guatemala [C.P.], as
amended, legislative decree No. 18-3, Nov. 17, 1993 (Guat.).
36 Emi MacLean, Guatemala Justice Update, January 2014,
International Justice Monitor, Efraín Ríos Montt & Mauricio
Rodríguez Sánchez (Jan. 17, 2014), http://www.ijmonitor.
org/2014/01/guatemala-justice-update-january-2014/.
37 International Truth is the Foundation of Justice: ICTJ Launches
Global Campaign for International Day for the Right to the Truth,
International Center for Transitional Justice (Mar. 22, 2013), https://
www.ictj.org/news/truth-foundation-justice#.
26
El testimonio Ixil pesa más:
Reflexiones sobre el juicio por el genocidio en Guatemala
a un año
por Christina M. Fetterhoff*
L
Introducción
anulación crea un grave obstáculo para la justicia en Guatemala,
pues lo que debería haber sido una victoria en términos de justicia
histórica deja incertidumbre para futuros juicios que buscan tratar
con supuestos crímenes del pasado.
legaron a la corte todos los días, vestidos en sus trajes
típicos, representativos de su cultura e historia, y llenando la
sala grande de la Corte Suprema de Justicia de Guatemala.
Las señoras con mucha paciencia se ayudaban entre sí a ajustar los
audífonos de interpretación sobre las cintas adornando sus cabezas. Las mujeres ixiles crearon un mar de colores en la atmósfera
tensa, sombría y silenciosa que permeaba en la sala de audiencias.
Además, la alegría de sus textiles hacía un marcado contraste con
los horríficos detalles que presentaron en sus testimonios.
La historia de Guatemala se escribió
con la mano izquierda
En su intervención sobre los hechos que dieron lugar al
proceso de paz y reconciliación en Guatemala a mediados de
los años noventa, Manuel Eduardo Conde Orellana, un ex-integrante de la Comisión Nacional
de Reconciliación, declaró que
“la historia de Guatemala se
escribió con la mano izquierda.”1
Se refirió a la violencia siniestra del conflicto armado interno
que duró en el país por treinta
y seis años y que dejó a más
de 200,000 personas muertas.2
Según el Informe de la Comisión
para
el
Esclarecimiento
Histórico, Guatemala: Memoria
del Silencio, ochenta y tres por
ciento de las víctimas fueron de
ascendencia indígena Maya.3
Un año después, esta es la
imagen que permanece más
intensamente en mi mente—las y
los sobrevivientes del genocidio
guatemalteco que viajaron con
tanto coraje desde sus pueblos en
el Triángulo Ixil hasta el Palacio
de Justicia en la Ciudad de
Guatemala para hacer escuchar
sus voces y representar las de
miles de otros que no tuvieron la
oportunidad de hablar. Me acuerdo también, por supuesto, de
los jueces miembros del tribunal,
de los abogados y los peritos, y
de la cantidad de periodistas y representantes de la sociedad civil
observando la historia revelarse. Me acuerdo de los acusados,
pequeños y débiles, y de la presencia de la Premio Nobel de la Paz
en la sala, Rigoberta Menchú, más poderosa que todos.
Tal anulación crea un grave
obstáculo para la justicia en
Guatemala, pues lo que debería haber
sido una victoria en términos de
justicia histórica deja incertidumbre
para futuros juicios que buscan tratar
con supuestos crímenes del pasado.
Hay que considerar el conflicto armado guatemalteco dentro
de los contextos de la Guerra Fría y la desigualdad endémica que
afecta a toda América Latina. En 1954, la Agencia Central de
Inteligencia de los Estados Unidos apoyó un golpe de estado que
derrotó al Presidente reformista Jacobo Árbenz. Este episodio
precipitó una ola de violencia estatal hacia los ciudadanos guatemaltecos hasta mediados de los sesenta cuando grupos armados
izquierdistas se consolidaron y contra-atacaron, igual que en
otros países latinoamericanos en esta época.4 El más poderoso de
aquellos grupos llegó a ser la Unidad Revolucionaria Nacional
Guatemalteca (URNG) por lo cual se convertiría en objetivo
principal de la guerra contra insurgentes. La guerra se prolongó
durante décadas y alcanzó su punto culminante y sangriento en la
campaña de tierra arrasada dirigida por el gobierno de José Efraín
Ríos Montt entre 1982-83.5 El propósito de esta campaña fue
destruir cualquier y toda cosa considerada posiblemente beneficial a los combatientes enemigos.
El juicio de Efraín Ríos Montt y Mauricio Rodríguez Sánchez
hizo historia en la primavera del 2013 por ser la primera vez en
que el sistema judicial de un país se enjuicia a uno de sus ex
jefes de estado por los delitos de genocidio y crímenes de lesa
humanidad. Lastimosamente, el juicio también fue histórico por
convertirse en un circo procesal, con abogados saliendo de la sala
y actuando en los límites de la legalidad. Además la sentencia
condenatoria fue anulada sólo diez días después de emitirse. Tal
*
Christina M. Fetterhoff es candidata a abogada de la American
University Washington College of Law en 2014. Como Co-Editora
Ejecutiva del Human Rights Brief durante 2012-13, tuvo la oportunidad de viajar a Guatemala con Ali Beydoun, Director de la Clínica de
Litigios de Alto Impacto en Derechos Humanos UNROW, para observar una parte del juicio por genocidio. Agradece al Prof. Beydoun y al
Abog. Christian González por su ayuda con esta reflexión.
Como parte de esta campaña, el ejército guatemalteco reprimió con severidad a las comunidades indígenas Maya Ixil en la
27
representantes de la URNG.9 Incluyó disposiciones para el respeto de los derechos humanos en el Acuerdo Comprehensivo
sobre los Derechos Humanos; la creación de una Comisión de
Esclarecimiento Histórico; y un Acuerdo sobre la Identidad y los
Derechos de los Pueblos Indígenas.10 Desde entonces Guatemala
ha intentado restaurar su imagen internacional de ser un país
pacífico, democrático y justo. También ha intentado reconciliar
la violencia del pasado con esfuerzos de unificación ciudadana
pero con éxito limitado, dado el hecho de que los que perpetraron
la violencia seguían en el poder. El propio Ríos Montt, por ejemplo, asumió un puesto en el Congreso de la República unos años
después de salir de la presidencia, y para mantener su inmunidad
permaneció en el Congreso hasta 2012.11
región Quiché en el oeste del país porque, como resultado de un
profundamente arraigado odio cultural y étnico, consideró a los
Ixil como blanco fácil y chivo expiatorio.6 El gobierno justificó la
presencia del ejército en Quiché alegando que los indígenas estaban en riesgo a causa de los grupos armados izquierdistas. A la
misma vez, justificó las juergas de matanza del ejército alegando
que los mismos indígenas eran guerrilleros. La gente indígena
que no fue asesinada o no huyó fue llevada a campamentos donde
tenían que servir al ejército en grupos de vigilancia.7 Los militares
dejaron los restos de las víctimas en las cenizas; cuando podían,
miembros de las comunidades los entierraban. Años después, la
Fundación de Antropología Forense de Guatemala descubriría las
osamentas y empezaría a recrear la historia de asesinatos masivos
y selectivos que habían ocurrido.8 La información recogida de
las investigaciones antropológicas forenses se hizo de alta importancia no solamente como prueba en el juicio de Ríos Montt y
Rodríguez Sánchez, pero también como enlace a la verdad del
pasado para las comunidades Maya Ixil.
El papel de la Comisión Internacional Contra
Guatemala y la creación de los
Tribunales de Alto Riesgo
la Impunidad en
La Comisión Internacional Contra la Impunidad en Guatemala
(CICIG) se creó en diciembre de 2006, tras la firma de un acuerdo
entre la ONU y el gobierno guatemalteco.12 Basada en un entendimiento mutuo de la necesidad de una presencia internacional
para fortalecer el estado de derecho y promover la responsabilidad
en Guatemala, la CICIG busca “apoyar al Ministerio Público, la
Policía Nacional Civil y a otras instituciones del Estado tanto en
la investigación de los delitos cometidos por integrantes de los
cuerpos ilegales de seguridad y aparatos clandestinos de seguridad, como en general en las acciones que tiendan al desmantelamiento de estos grupos.”13 Según la explicación de sus funciones,
la CICIG, aunque creada con el apoyo de la ONU, “opera bajo
las leyes guatemaltecas, en las Cortes Guatemaltecas, usando el
procedimiento penal de Guatemala.”14 Tiene como parte de su
mandato la asistencia técnica al sistema de justicia y el poder de
recomendar reformas legislativas para fortalecer las instituciones
jurídicas.15 Además cuenta con una Fiscalía Especial Contra la
Impunidad que investiga casos específicamente seleccionados por
el Ministerio Público, que siempre son de alto impacto social.16
Una reforma institucional propuesta por la CICIG para mejor
atender a estos casos de alto impacto social fue la de la creación
de los llamados Tribunales de Mayor Riesgo.
La violencia disminuyó bastante en los últimos años de los
ochenta, y en 1996 la Organización de las Naciones Unidas (ONU)
negoció un Acuerdo de Paz entre el Gobierno de Guatemala y
Debido en parte a una recomendación de la CICIG, en 2009, el
congreso guatemalteco aprobó la Ley para el Fortalecimiento de
la Persecución Penal, la cual ordenó la creación de los Tribunales
de Mayor Riesgo o alto riesgo.17 Estos tribunales funcionan como
tribunales de primera instancia bajo la estructura de la Corte
Suprema de Justicia. Sin embargo, como describe su denominación, llevan casos de alto impacto social. Sus jueces gozan de
protecciones más amplias que los tribunales ordinarios y reciben
atención especial por parte del sistema de justicia para acelerar los
procesos de justicia cuando presiden un caso.18 Según los artículos
2 y 3 del Acuerdo 6-2009 de la Corte Suprema de Justicia sobre
competencia en casos de mayor riesgo, hay ciertas características
La autora con el Prof. Ali Beydoun frente al Palacio de Justicia en la
Ciudad de Guatemala.
También ha intentado reconciliar la violencia del pasado con esfuerzos
de unificación ciudadana pero con éxito limitado, dado el hecho de que
los que perpetraron la violencia seguían en el poder.
28
que debe tener un caso para ser denominado de mayor riesgo.19
Por ejemplo, el caso debe implicar tanto un delito violento, como
el femicidio o el secuestro agravado, como una alta probabilidad
de riesgo a la integridad física de los involucrados en el procesamiento del caso.20 Por eso el caso de Ríos Montt y Rodríguez
Sánchez llegó al Tribunal Primero A de Mayor Riesgo presidido
por la Jueza Yassmin Barrios y al principio el ritmo de las actuaciones fue muy acelerado.
El “Nunca Más” llega al tribunal
Para muchos, la acusación formal contra Ríos Montt y
Rodríguez Sánchez por genocidio y crímenes de lesa humanidad
el 26 de enero de 2012 fue un paso importante hacia la verdad
y la justicia.21 La acusación se dio dentro de las dos semanas de
que Ríos Montt dejó de ser diputado y gozar de la inmunidad
parlamentaria. La Jueza Carol Patricia Flores — la misma que
con posterioridad declararía la anulación del juicio — leyó la
acusación emitida por la Fiscal General Claudia Paz y Paz, basada
en los artículos 376 (genocidio) y 378 (delitos contra los deberes
de humanidad) del Código Penal.22
Guatemala enmendó su Código Penal para incluir el delito
de genocidio en 1972,23 según la definición de la Convención
Internacional para la Prevención y la Sanción del Delito de
Genocidio, de la cual Guatemala es Estado Parte.24 La Convención
define el genocidio en su segundo artículo como lo siguiente:
Mujeres Maya escuchan peritos
El genocidio: Delito de trascendencia internacional
[C]ualquiera de los actos mencionados a continuación,
perpetrados con la intención de destruir, total o parcialmente, a un grupo nacional, étnico, racial o religioso,
como tal:
hecho nacional
En el derecho internacional de los derechos humanos hay una
categoría de derechos que no son derogables — también se llaman normas de jus cogens o normas perentorias. Este principio
significa que hay algunos derechos que son tan esenciales que es
universalmente entendido que no se los puede violar y que ningún
país permitirá a otro violarlos en sus ciudadanos. La prohibición
de genocidio y de la comisión de crímenes de lesa humanidad
tienen tal estatus jurídico.28 Históricamente, cuando han ocurridos
violaciones de estos derechos la comunidad internacional las ha
abordado en tribunales penales, como el Tribunal de Núremberg o
más recientemente el Tribunal Penal Internacional para la Antigua
Yugoslavia (TPIY) y el Tribunal Penal Internacional para Ruanda
(TPIR). La Organización de las Naciones Unidas creó estos tribunales para tratar delitos específicos cometidos en la Antigua
Yugoslavia y Ruanda, respectivamente, pero se encuentran fuera
de aquellos países. El TPIY tiene su sede en La Haya, Países
Bajos,29 y el TPIR en Arusha, Tanzania.30 Tanto el TPIY como
el TPIR precedieron la creación de la Corte Penal Internacional
(CPI) en 1998,31 que tiene jurisdicción para considerar casos que
involucran a los ciudadanos o el territorio de los Estados Parte del
Estatuto de Roma.
(a) Matanza de miembros del grupo;
(b) Lesión grave a la integridad física o mental de los
miembros del grupo;
(c) Sometimiento intencional del grupo a condiciones
de existencia que hayan de acarrear su destrucción
física, total o parcial;
(d) Medidas destinadas a impedir los nacimientos en el
seno del grupo;
(e) Traslado por fuerza de niños del grupo a otro grupo.25
El Código Penal contiene básicamente el mismo lenguaje y añade
una sanción de treinta a cincuenta años de prisión a cualquier
responsable del delito de genocidio.26
Aunque la Convención Internacional para la Prevención y la
Sanción del Delito de Genocidio requiere de todos los Estados
Parte, actualmente 144 países, la implementación de legislación
nacional para el enjuiciamiento o la extradición de alguien
acusado del delito de genocidio,27 la acusación de Ríos Montt fue
la primera acusación formal nacional para el delito del genocidio.
El juicio en Guatemala entonces tiene que ser distinguido de los
juicios llevados a cabo por los Tribunales Penales Internacionales
para Ruanda y la Antigua Yugoslavia, porque representa un paso
trascendental hacia la responsabilidad aumentada dentro de la
esfera doméstica para delitos graves internacionales.
Guatemala accedió al Estatuto de Roma en abril de 2012.32 La
CPI no hubiera tenido jurisdicción sobre los hechos de los cuales
son acusados Ríos Montt y Rodríguez Sánchez porque ocurrieron
antes de que Guatemala fuera Estado Parte del Estatuto de Roma.
A pesar de eso, el principio de complementariedad consagrado
en el artículo 17 del Estatuto contempla una excepción a tal principio, cuando el Estado “no esté dispuesto a llevar a cabo la investigación o el enjuiciamiento.”33 Entonces, el juicio en Guatemala
fue otro ejemplo de cómo el tratamiento de violaciones de las
normas de jus cogens ha evolucionado.
29
Un juicio entrecortado
tan delicada como la de Guatemala hay que reconocer que cómo
se define el concepto de la justicia es algo distinto y vulnerable.
Guatemala tomó pasos importantes para adecuar no sólo su
legislación interna, pero también su históricamente débil sistema
de justicia, para poder realizar el juicio a dos de los más buscados
autores del periodo de la guerra civil brutal. Basado únicamente
en estos preparativos, parecía
que Guatemala estaba lista para
enfrentar su pasado sangriento
y presentarse como país modelo para otros emergentes de un
periodo de guerra civil o conflicto armado interno. Incorporó
en su Código Penal los delitos a
ser acusados, estableció un tribunal especial para hacer el caso,
declaró que las dos personas a
ser acusadas no tenían inmunidad ninguna y aseguró que
el país gozaba de una situación
doméstica bastante pacífica para
insistir en la declaración del
caso.
Organizaciones no-gubernamentales de reconocimiento
internacional, como el Centro Internacional para la Justicia
Transicional, han argumentado que el conocer la verdad es una
parte integral en la lucha para la
justicia.37 Ahora que el mundo
ha escuchado el testimonio de
docenas de sobrevivientes y ha
visto la prueba presentada por
docenas de expertos en antropología y arqueología forense,
la verdad de lo que pasó en
las comunidades Maya Ixil en
el Departamento de Quiché
en los años 1982-83 se revela.
Declararon sobre lo que les
pasó. No es poca cosa que por
fin tantas personas tuvieron la
oportunidad de viajar al Palacio
de Justicia en su propio país
y desahogarse de los horrores
que vivieron durante el conflicto
armado. Tuvieron su día en la corte. Pero, es una versión de la verdad y siempre habrá los que tienen otra versión. Sin una sentencia
definitiva en contra de los acusados, esta versión de la verdad
permanecerá en los libros de la historia.
El juicio en Guatemala entonces
tiene que ser distinguido de los juicios
llevados a cabo por los Tribunales
Penales Internacionales para Ruanda
y la Antigua Yugoslavia, porque
representa un paso trascendental hacia
la responsabilidad aumentada dentro de
la esfera doméstica para delitos graves
internacionales.
Lastimosamente, no todo ha
funcionado como debería — la situación de facto ha llegado a
ser otra realidad. A pesar de todas las preparaciones, el fallo en
contra de Ríos Montt emitido por el tribunal de primera instancia de la Jueza Barrios el 13 de mayo del 2013 fue anulado por
la Corte Constitucional de Guatemala a una semana, después
de la presentación de una multitud de recursos legales, incluso
acciones de amparo34 presentadas por los abogados defensores
bajo el artículo 265 de la Constitución de Guatemala.35 El juicio
está programado para recomenzar en enero del 2015.36 Desde el
comienzo de los procesos en noviembre 2011 que resultaron en el
juicio, los abogados defensores han insistido en que los procesos
son ilegales y violatorios de los derechos tanto de los acusados
como de ellos mismos. La defensa presentó amparo tras amparo
hasta que la fase oral de juicio se quedó trancada. Si bien la Corte
Constitucional resolvió un grupo de peticiones, cada vez que las
resolvían otro grupo llegaba. Y por todo esto, tras treinta años de
espera para que este juicio se llevara a cabo, todos se encuentran
en la incertidumbre respecto a si habrá justicia en Guatemala.
Por otra parte, después de tantos juegos judiciales, es bastante
posible que una sentencia — cualquiera que sea—no tenga el
peso necesario para sobrevivir el proceso de apelaciones. Lo
que comenzó como un proceso acelerado para la seguridad de
las partes ahora se extenderá por la jerarquía de los tribunales de
Guatemala. Los abogados seguirán peleando. El mundo se desinteresará, confundido por los trámites de un sistema de justicia que
parece anticuado e inadecuado. Los sobrevivientes volverán a sus
casas y se sentirán desilusionados y traicionados por la renovación
de la falta de justicia. Los acusados — ambos ya ancianos —
fallecerán. Los integrantes de la sociedad civil regresarán a sus
computadoras y considerarán el debate entre la verdad y la justicia
de nuevo en situaciones de justicia transicional y casos de genocidio. Y lo que pudiera haber sido un logro histórico y procesal
llegará a ser considerado como otro ejemplo de cómo las cosas
no funcionan en países con sistemas de justicia débiles. Entonces,
es muy posible que al final de todo, los interesados en el primer
caso doméstico de genocidio cometido por un exjefe de estado
tendrán que conformarse con la verdad en vez de la justicia, y no
la justicia a través de la verdad.
¿Habrá justicia en Guatemala?
La respuesta a la cuestión de si habrá justicia en Guatemala no
es tan sencilla como parece. No será un “sí” sencillo si el proceso
judicial llega a su fin y el tribunal dicta otra sentencia de culpabilidad. Tampoco será un “no” sencillo si el proceso no reanuda
o si el tribunal dicta una sentencia de inocencia. En una situación
30
Endnotes
1 Manuel
16 Unidad
Eduardo Conde Orellana, Declaración ante el Tribunal
Primero A de Mayor Riesgo (el 09 de abril del 2013).
2 Comisión para el Esclarecimiento Histórico, Guatemala:
Memoria del Silencio: Informe de la Comisión para el
Esclarecimiento Histórico Conclusiones y Recomendaciones,
American Association for the Advancement of Science (2009), disponible en http://www.aaas.org/ sites/default/files/migrate/uploads/
mos_en.pdf [en lo sucesivo Guatemala Memoria del Silencio].
3 Id.
4 Greg Grandin, The Blood of Guatemala: A History of Race
and Nation 7 (2000).
5 Id. página 16.
6 Id.
7 Id.; Guatemala Memoria del Silencio, supra nota 2, página 32.
8 Fundación de Antropología Forense de Guatemala, http://
www.fafg.org/ (último acceso el 16 de abril del 2014).
9 Guatemala Memoria del Silencio, supra nota 2.
10 Secretario General de la ONU, Carta con fecha 05 de abril del
1995 del Secretario General al Presidente de la Asamblea General
y al Presidente del Consejo de Seguridad, U.N. Doc. A/49/882
(el 10 de abril del 1995) (incluso el Acuerdo sobre identidad y
derechos de los pueblos indígenas, Anexo); Secretario General
de la ONU, Carta con fecha 28 de junio del 1994 del Secretario
General al Presidente de la Asamblea General y al Presidente del
Consejo de Seguridad, U.N. Doc. A/48/954 (el 01 de Julio del 1994)
(incluso el Acuerdo sobre el establecimiento de la Comisión para
el Esclarecimiento Histórico de las violaciones a los derechos
humanos y los hechos de violencia que han causado sufrimientos
a la población guatemalteca, Anexo II); Secretario General de la
ONU, Carta con fecha 08 de abril del 1994 del Secretario General
al Presidente de la Asamblea General y al Presidente del Consejo
de Seguridad, U.N. Doc. A/48/928 (el 19 de abril del 1994) (incluso
Acuerdo Global sobre Derechos Humanos, Anexo I). Se firmó un
acuerdo de la paz final en 1996. Secretario General de la ONU,
Cartas Idénticas con fecha 05 de febrero del 1997 del Secretario
General al Presidente de la Asamblea General y al Presidente del
Consejo de Seguridad, U.N. Doc., A/51/796 (el 07 de febrero del
1997) (incluso el Acuerdo de Paz Firme y Duradera, Anexo II) [en
lo sucesivo Acuerdo de Paz Firme y Duradera].
11 Constitución Política de la República de Guatemala [C.P.],
modificada, decreto legislativo No. 18-3, el 17 de noviembre del
1993 (Guat.), art. 161(a). (“(Prerrogativas de los diputados) de la
Constitución Política de la República de Guatemala estipula: Los
diputados son representantes del pueblo y dignatarios de la Nación;
como garantía para el ejercicio de sus funciones gozarán, desde
el día que se les declare electos, de las siguientes prerrogativas:
a) Inmunidad personal para no ser detenidos ni juzgados, si la
Corte Suprema de Justicia no declara previamente que ha lugar a
formación de causa, después de conocer el informe del juez pesquisidor que deberá nombre para el efecto. Se exceptúa el caso
de flagrante delito en que el diputado sindicado deberá ser puesto
inmediatamente a disposición de la Junta Directiva o Comisión
Permanente del Congreso para los efectos del antejuicio correspondiente.”).
12 Acuerdo relativo a la creación de una Comisión Internacional
contra la Impunidad en Guatemala (CICIG), Comisión
Internacional contra la Impunidad en Guatemala, http://cicig.org/
index.php?page=mandato [en la sucesivo CICIG].
13 Id.
14 Sobre CICIG, Comisión Internacional contra la Impunidad en
Guatemala, http://cicig.org/index.php?page=sobre.
15 Id.
Especial de Fiscalía de Apoyo a la CICIG, Comisión
Internacional contra la Impunidad en Guatemala, http://cicig.org/
index.php?page=fiscalia-especial.
17 Diario de Centro América, Ley para el Fortalecimiento de la
Persecución Penal, Decreto No. 17-2009 (14 de abril de 2009).
18 Carol Yessenia Vargas Salguero, Inconstitucionalidad de los
Juzgados de Alto Impacto, Universidad Panamericana, (Nov. 2011).
19 Corte Suprema de Justicia, Acuerdo No. 6-2009: Competencia
en casos de mayor riesgo (18 de mayo de 2009).
20 Id.
21 Kate Doyle, Justice in Guatemala, NACLA Report on the
Americas, Spring 2012, página 37, disponible en https://nacla.org/
sites/default/files/A04501039_10.pdf.
22 Código Penal de Guatemala [CPG], modificada, Decreto
Legislativo No. 20-96 (1996), arts. 376, 378, disponible en http://
www.oas.org/dil/esp/Codigo_Penal_Guatemala.pdf.
23 Frank La Rue Lewy, Opinión, Reflexiones: Genocidio en
Guatemala (II), Prensa Libre, el 2 de sept. del 2012, http://www.
prensalibre.com/opinion/Genocidio-Guatemala_0_643135693.html.
24 Convención Internacional para la Prevención y la Sanción del
Delito de Genocidio, G.A. Res. 260, Estado de Ratificación, abierta para firmas el 9 de diciembre del 1948, 78 U.N.T.S. 277 [en lo
sucesivo Convención para la Prevención del Genocidio].
25 Id.
26 Código Penal de Guatemala, art. 376.
27 Convención para la Prevención del Genocidio, supra nota 24.
(http://www2.ohchr.org/spanish/law/genocidio.htm) (último acceso
28/02/2014).
28 Barry E. Carter y Allen S. Weiner, International Law 112
(Wolters Kluwer, 6a edición 2011).
29 S.C. Res. 827, U.N. Doc S/RES/827 (el 25 de mayo del 1993)
(implementando el Tribunal Penal Internacional para la Antigua
Yugoslavia y concediéndolo jurisdicción sobre los crímenes de
guerra, crímenes de lesa humanidad y actos de genocidio ocurriendo en la Antigua Yugoslavia después del 1991).
30 S.C. Res. 955, U.N. Doc. S/RES/955 (el 08 de noviembre
del 1994) (implementando el Tribunal Penal Internacional para
Ruanda y concediéndolo jurisdicción sobre los crímenes de guerra,
crímenes de lesa humanidad y actos de genocidio ocurriendo en
Ruanda en 1994).
31 Estatuto de Roma de la Corte Penal Internacional, art. 1, el 01
de julio del 2002, 2187 U.N.T.S. 38544.
32 Id. art. 17.
33 Id.
34 Una acción de amparo es un remedio legal para la protección de
derechos constitucionales. Tiene el doble propósito de proteger a los
derechos básicos de un individuo y a la constitución misma por asegurar que acciones estatales no socavan los derechos protegidos en
esta. Cualquier persona que cree que sus derechos constitucionales
han sido violados puede invocar el derecho al amparo.
35 Constitución Política de la República de Guatemala [C.P.], modificada, decreto legislativo No. 18-3, el 17 de noviembre del 1993
(Guat.).
36 Emi MacLean, Guatemala Justice Update: January 2014,
International Justice Monitor, Efraín Ríos Montt y Mauricio
Rodríguez Sánchez (el 17 de enero del 2014), http://www.ijmonitor.
org/2014/01/guatemala-justice-update-january-2014/.
37 Truth is the Foundation of Justice: ICTJ Launches Global
Campaign for International Day for the Right to the Truth, Centro
Internacional para la Justicia Transicional (el 22 marzo de 2013),
http://ictj.org/news/truth-foundation-justice#.
31
Moving Forward: A Reflection on Current Issues Facing
International Criminal Justice with Richard Goldstone
The Human Rights Brief conducted an interview with
Richard Goldstone on March 25th, 2014, focusing on current issues facing international criminal justice. As a former
Justice and Chief Prosecutor, Professor Goldstone offers a
unique and expert voice on challenges and obstacles facing
the International Criminal Court as it works toward ensuring
accountability for the gravest of crimes and ending impunity for
the worst of offenders.
Professor Goldstone is currently a distinguished visitor
from the judiciary at Georgetown University Law Center. He
was recently appointed Chairman of the Advisory Committee of
the Coalition for the International Criminal Court. From July
1994 to October 2003, Professor Goldstone was a Justice of
the Constitutional Court of South Africa. In addition, Professor
Goldstone served as the Chief Prosecutor of the United Nations
International Criminal Tribunals for the former Yugoslavia and
Rwanda from August 1994 to September 1996. Nearly three
years later, from August 1999 until December 2001, he served
as the chairperson of the International Independent Inquiry on
Kosovo that was established by Swedish Prime Minister Goran
Persson. He is presently the co-chairperson of the Rule of Law
Action Group of the International Bar Association. From 1999
to 2003, he served as a member of the International Group of
Advisers of the International Committee of the Red Cross. He
was a member of the Committee, chaired by Paul A. Volcker,
appointed by the Secretary-General of the United Nations, to
investigate allegations of corruption regarding the Iraq Oil for
Food Program. He serves on a number of boards, including the
Human Rights Institute of South Africa, Physicians for Human
Rights, and the Center for Economic and Social Rights. He
chairs the International Advisory Committee of the International
Center for Transitional Justice.
HRB: Recent allegations of witness tampering have raised
a number of concerns over the protection of witnesses and
veracity of their testimony. How do these concerns affect the
International Criminal Court (ICC) and what obligations
rest with the prosecutors to mitigate these concerns?
Professor Richard Goldstone
be ashamed of when a prosecution collapses. Indeed, the worst
thing that can happen is a guilty verdict as a result of an unfair
trial or an absence of due process. Victims do not have a valid
complaint merely because a case collapses; it is not justice for
victims to have innocent people convicted. Clearly, judges owe it
to the victims and to the accused to furnish full reasons for either
convictions or acquittals.
The situations facing prosecutors at the ICC are not unlike
the challenges facing prosecutors in national trials. It is the
prosecutor’s job to collect the evidence, interview the witnesses,
and, in the case of the ICC, apply to a pre-trial chamber for the
issue of arrest warrants. Prosecutors rely on witnesses coming
forward. They must do what they can to ensure that witnesses
are reliable and that they are not fabricating evidence, which is
not always an easy determination. Some witnesses who at first
appear to be credible often turn out to be unreliable and, in contrast, a witness who at first appears unreliable may turn out to
be an impressive witness.
The prosecutor must, of course, take into account the risks
to victims, particularly when those who serve as witnesses are
likely to be killed or attacked. Protecting witnesses goes to the
heart of the judicial system and targeted violence should be
avoided at all costs. During my time as Chief Prosecutor of
the International Criminal Tribunal for Yugoslavia and Rwanda
(ICTY and ICTR), I used tell people in my office that the first
dead witness will likely be the last witness. When people fear
for their lives or safety, you cannot expect them to come forward willingly and give evidence. Additionally, there is a lot of
confusion about witness protection. Witnesses in these sorts of
Obviously, if facts come to light that indicate that a witness
is lying or has been bribed, the prosecution has an obligation to
inform the defense, and if it destroys the prosecutor’s case then
the case should be abandoned. I do not think there is anything to
32
situations are not like the mafia or drug lords who give evidence
and want new identities. In Bosnia, Rwanda, and likely Kenya,
the people we are talking about here come from their homes
and villages and do not want to move out; they want protection
where they live and that is often difficult to provide, but it is
certainly the job of the prosecutor to ensure that whatever can
be done is done to protect the witnesses.
The perception that the ICC focuses on Africa is misguided.
African leaders focus on the ICC. Of the eight cases, only two
have come from the Prosecutor. While I think it would be good
to have a non-African situation, one should not be manufactured.
Furthermore, even if the ICC accepted three new non-African
situations tomorrow, it would not minimize the “anti-African”
complaints at all. The complaint that the Court is anti-African
is an excuse, not a reason. There would still be the same complaints about indicting heads of state and all the rest, and I really
do not think it is a bona fide complaint.
HRB: Oftentimes the Court protects witnesses through anonymity. How does this impact the validity of the trial and the
fair trial rights of the defendant?
It is all politics, you know. These African leaders think it is
in their political interest to refer cases to the ICC. And so the
Prosecutor should be very careful when accepting referrals;
the Prosecutor should know that she is being used for political
reasons. It is very tempting to accept all cases, especially when
there are no others, but it is very risky. Unfortunately, the reason
that there are so many African cases is because there are so many
war crimes being committed in Africa. International justice is all
about politics. Without the right politics, we would not have the
ICC, or the ad hoc or mixed tribunals. That being said, it is the
work of the Prosecutor, Judges, and the Registry to do their jobs
conscientiously.
The degree of anonymity depends on the circumstances. It
should be an absolute last resort and, in many circumstances,
may not be an option; the witness cannot always be kept anonymous from the defendant. Defense counsels cannot do a proper
job if they do not know who they are cross-examining and if
they cannot get instructions from their client as to who the witnesses are or what reasons they might have for testifying. There
are very few isolated cases where you can keep the witness’s
identity from the defendant. However, as long as the defendant
knows who the witness is, the witness can be protected from
the public. There cannot be any objection when the anonymity
of the witness is to ensure the
witness’s safety. It is difficult,
though, because people from
the area may be able to identify the witness, even when the
voice is modified, because they
can work out from the facts
the identity of the witness. For
these reasons, it is an extremely
difficult situation and has to be
considered on a case-by-case
basis. Generally speaking, the
common law judges do not like
it. The civil law judges, while
they might not like it, are less
opposed to it.
You cannot turn justice on and off
like a tap. Either you have a system
of international justice or you do not.
One of the costs that you may have
to pay in a particular situation is that
peace may be made more difficult to
a greater or lesser extent.
HRB: Do you foresee a time
in the future when the ICC
would have the ability to rise
above the external politics?
You cannot answer that
question because you can never
divorce yourself from the politics. Who will carry out the
orders of the Court? The Court
needs the support of governments to respond to the requests
for assistance; that is politics.
The Court will always operate
in a very political context. But
that does not mean that the offices and organs of the Court
should operate outside acceptable norms and standards of judicial prudence.
HRB: In addition to internal procedural issues facing the
ICC, the Court is under intense scrutiny from the outside
political actors. Specifically, Kenya has threatened to leave
the ICC. What does this political posturing say about the
effectiveness of the Court and will it affect the future of the
ICC?
HRB: How do the politics of post-conflict justice affect
courts outside the ICC? For instance, do you think that there
will ever be an African Criminal Court of Justice capable of
handling these grave situations?
You know, Kenya has not left the ICC yet, and they are not
likely to do so. Kenya would have left if they were going to do
it, but they do not want to be seen as outliers. What is important
to keep in mind is that there is really strong support for the ICC
in Africa. So it seems to me that a divide has arisen between
African leaders on the one hand and the people on the other.
Some leaders who oppose the ICC do so in their own selfish
interest and against the interests of the general population. In
Kenya, for example, there is very strong support for the ICC,
particularly among civil society groups. Leaders do not want to
alienate too many people by leaving the ICC. This explains why
Kenyatta and Ruto are cooperating; if it was not in their interest
they would simply pull out from the ICC.
It is not going to happen. There will be no African Criminal
Court. I do not believe there is the political will and do not
believe there is the money to resource it. So it appears to me
to be hot air. I would love to see it; I think it would be a good
thing to have an efficient African Criminal Court to stand
between national governments and the ICC. Furthermore, a
regional court is quite consistent with the whole philosophy of
the ICC. But, unfortunately, the African states cannot get their
act together to mount a human rights court, much less a criminal
court. It seems to me that if it is going to happen, it is going to
take decades. Many of the leaders do not want anything to do
with it because they are protecting themselves and each other.
33
Victims do not have a valid complaint merely because a case collapses;
it is not justice for victims to have innocent people convicted.
HRB: The political implications affect the gravity of the situation, but they also affect individual cases. For example, the
ICC has recently granted defense motions to allow the defendants Kenyatta and Ruto to be absent from the trial during
“special circumstances,” given their status as sitting heads of
states. What impact will these political considerations have
on the trial?
being spent to investigate effectively one murder seems to be
out of all proportion.
HRB: Many thought that the Rwandan Patriotic Front
(RPF) should have been prosecuted for the abuses it committed during the aftermath of the genocide in Rwanda. How
did the politics of the Rwandan situation affect the decision
not to prosecute the RPF?
Well, I think it is a big mistake. Kenyatta and Ruto should
have been imprisoned pending their trial. People charged with
crimes against humanity should not be wandering around free
and allowed to go home. Imagine the effect on the victims. Had
they been apprehended and incarcerated, they would probably
not be president and deputy president right now. It surprised
me at the time that they were allowed to roam free, and that
was before their election. There is no way that the ICTY would
have let the Croatian generals and all the rest of them who
came and gave themselves up
to roam free. They were kept
in the Tribunal prison pending
their trials. If they were acquitted, and some were, they were
released; if they were not, they
were transferred from the awaiting trial prison to the permanent
one.
Fortunately, I did not have to face that decision during my
term as Chief Prosecutor of the ICTR. However, my successors
were faced with that very difficult question. If they had investigated crimes of the RPF, it is absolutely clear that Rwanda would
have broken off its relationship with the ICTR. That would have
meant the end of the tribunal. So, the question became whether
the investigation of the RPF would have been worth the cost
of bringing the tribunal to a premature end. I do not believe it
would have been. The ICTR was primarily set up to investigate
the genocide of 1994; that was
its job. The RPF crimes were
revenge crimes. It is absolutely
accepted that these crimes did
not amount to genocide. On a
scale of one to ten, the genocide
was a ten. Those who aided
and abetted were of eights and
nines. The crimes committed
by the RPF, however, would
have been at fours and fives
if accepted. I do not believe it
would be worth jeopardizing the
mandate of the Tribunal, to investigate and prosecute the genocidaires, by investigating lesser crimes committed by the RPF.
…a divide has arisen between
African leaders on the one hand and
the people on the other. Some leaders
who oppose the ICC do so in their own
selfish interest and against the interests
of the general population.
HRB: The decision to prosecute one person over another
also has political implications
and can impact the perception
of a tribunal, whether it was balanced or whether it prosecuted those most accountable. Reflecting back on your time
as Chief Prosecutor at the ICTY, what led to your decisions
to prosecute some individuals before others?
However, I do think the decision to not investigate RPF
crimes should have been publicly debated. I am critical of things
being swept under the rug. That is a recipe for justifiable criticism. If it had come to me as Chief Prosecutor, I think I would
have issued a position statement and explained why I was not
investigating RPF crimes. Some people would have criticized
it. Other people would have agreed with it. But an open debate
on the issue is healthier than ignoring it. This was a prosecutor’s
decision not to prosecute, and it should have been a prosecutor’s duty to explain the policy. Such a statement could have
established the factual record and encouraged public debate. The
more open and transparent a prosecutor is, the better. I do not
think a prosecutor should play it too closely to the chest. What
can be made public should be made public.
At the ICTY, we did not have enough evidence to start at the
top, so we started at the bottom, and there was some criticism.
Some made snide remarks about small fish that were being
indicted. But it was important to start somewhere, and I think
it was very useful starting at the level of Tadić. I think a lot of
the initial, crucial jurisprudence came from the Tadić case. And
far better to do it in the Tadić case than in the Milošević case.
However, it was not a choice, it was the situation that was thrust
upon us.
HRB: Should the political gravity of the crime be relevant
when considering the admissibility of a case or situation
under Article 17 of the Rome Statute?
HRB: Should the ICC take into consideration the stability of
a region when taking on a situation?
The political gravity of the crimes should absolutely be taken
into consideration. The Special Tribunal for Lebanon (STL) was
set up exactly for that purpose. With regards to the STL, it is a
huge machine to crack one nut. And to set up a huge tribunal
with hundreds of people and hundreds of millions of dollars
It may, but I don’t think one can generalize; it depends on
the circumstances. Nine times out of ten the prosecutors and
judges do not know what the effects might be of prosecuting
and investigating or indicting leaders. They are not politicians,
34
after the Srebrenica massacre. But because Karadžić was
indicted, he could not attend Dayton. The Americans would have
arrested him and sent him to The Hague for trial. And Dayton
brought the war to an end. To this day, there has not been a shot
fired in the former Yugoslavia. Where Boutros-Ghali thought
that the indictment of Karadžić would result in a worse war, it
had the opposite result. He could not have known. And I could
not have known it.
but they should obviously not be oblivious to the situation on the
ground. But their main objective is to ensure that war crimes are
not overlooked and that there is no impunity for war criminals;
that is their prime obligation.
HRB: When you were Chief Prosecutor of the ICTY, how did
you balance that prime obligation with the very real security
concerns of the ongoing war at the time?
Well, as you know, we were set up during the war, and certainly during most of my tenure as Chief Prosecutor the war was
raging in Bosnia. But the Security Council gave a very clear
mandate to the Prosecutor to investigate and hand down indictments against people where evidence showed that they had committed a war crime; that was my mandate. And if prosecutions
increased the prospects of continued war, it was still something
that I had to do; we could not know the effects of the prosecutions. I was not a party to, and had no inside information about,
what negotiations were going on. The then Secretary General,
Boutros Boutros-Ghali, felt that I was wrong to indict Karadžić
and Mladić. He was furious, but I said, you know, this is my job.
Certainly, it may be that justice can act against peace. It
would be foolhardy to deny that. I do not know of any situation
where justice has impeded peace, though, but it could happen.
Even if it did happen, there should still be international justice.
You cannot turn justice on and off like a tap. Either you have a
system of international justice or you do not. One of the costs
that you may have to pay in a particular situation is that peace
may be made more difficult to a greater or lesser extent. One has
to look at the bottom line and ask whether we better off having
international justice than if we didn’t have international justice.
But you can’t have a little bit of international justice here and a
little bit of international justice there; it just will not work that
way.
Little did I know, and little did Boutros Boutros-Ghali know,
if the indictment had not been issued, the Dayton Agreement
would not have been reached. Without the indictment, Karadžić
would have been entitled to attend the Dayton Peace Conference
and, consequently, the Bosnian leaders would not have gone.
Bear in mind that the Dayton Conference was just two months
Michelle Flash, Co-Editor-in-Chief of the Human Rights
Brief, conducted this interview with Professor Goldstone on
March 25, 2014. Michelle Flash is a 2014 J.D. Candidate at
American University Washington College of Law.
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
35
Bonded and Child Labor in Pakistan: Interview with
Human Rights Practitioner Pirbhu Lal Satyani
Mr. Satyani is a Humphrey/Fulbright Fellow at American
University Washington College of Law. He is from rural
Pakistan and worked at the grassroots level with Thardeep Rural
Development Program, a local nongovernmental organization
focused on child labor, poverty, and education. At Thardeep, Mr.
Satyani was responsible for research and advocacy on issues
related to child labor. He managed a five-year project that Save
the Children UK supported from 2007 to 2012, engaging with
children in the workforce in four districts of Sindh, Pakistan.
The purpose of the project was to phase out 20,000 working
children from hazardous labor conditions and provide them with
access to quality education. In order to supplement the incomes
children were bringing home to their families, Mr. Satyani’s
program also focused on diversifying economic opportunities
in impoverished rural communities so that children would not
feel compelled to work. The Thardeep program provided support
to government schools, increased the number of teachers, and
established non-formal education (NFE) centers in communities with limited access to government schools and qualified
teachers. Mr. Satyani designed and led advocacy campaigns
to support these projects; arranged policy dialogues between
government and community stakeholders; worked with the government to improve enforcement mechanisms for laws, including
the Employment of Children Act of 2001, the Child Protection
Authority Act of 2011, and the Bonded Labor System Abolition
Act of 1992; issued recommendations to parliamentarians,
policymakers, other NGOs, and the media; and built capacity
and raised awareness in rural communities among children and
parents.
Pirbhu Lal Satyani
contractors and they, as well as the children, enter into bonded
labor agreements. The public education system in Pakistan is
also very weak. It is poorly monitored and corruption is pervasive. Schools lack facilities, such as electricity, water, proper
sanitation, and things like furniture and stationary.
Although Pakistan has good laws to curb child labor, there
is no mechanism or child protection system at the village level
to address these issues. For example, the provincial assembly
passed the Sindh Child Protection Authority Act in 2011, but
the government has done nothing to enforce it. The District
Vigilance Committees (DVCs), which were created under the
bonded labor abolition system in 1992, have similarly been inactive. As a result, twenty-five million children are out of school,
and almost half of them are engaged in labor.
HRB: Can you tell us about the Thardeep child labor
project?
The purpose of the five-year project was to phase out
children from the labor sector, including industries such as
agriculture, livestock, carpet making, and domestic labor. We
conducted our work in four rural districts throughout Pakistan
and found that thirty-six percent of children living in these
districts engaged in these industries. The goal was to encourage the 20,000 children previously employed at young ages
in dangerous conditions to enroll in schools. When there were
already government schools in these rural districts, we provided
teachers, stationary, and other resources to support its operation.
In villages with no schools, we created non-formal education
centers (NFEs). Thardeep also worked with village communities
to create children and women’s organizations and provide them
with livelihood opportunities and vocational training.
HRB: Why do so many young people have limited access to
education?
Bad politics, bad governance, and mismanagement. Our
education system is politicized. The hiring and firing of teachers always happens along political lines. In my districts, I have
seen seventeen schools in a single village while many other
villages have no schools at all. We need a complete transformation to separate education and politics. In a number of villages,
there are school buildings but no teachers. Therefore, children
may have to travel far away to get to the closest school. Girls,
because of gender barriers and cultural issues, are not permitted to make this journey. In Pakistan, girls have a lower literacy
rate than boys because the distance children must often travel
to school prevents girls from attending. Many families also do
not want their daughters getting an education in the same school
as boys. There are also very few female teachers in the rural
areas in Pakistan. Poverty and the weak governmental education
system are pushing more children into religious schools, called
Madrasas, because they provide food.
HRB: What are the predominant causes of child and bonded
labor in Pakistan?
Child labor is a product of poverty and the absence of quality education. There are few employment opportunities for poor
families, and the family sizes are typically large. Unemployment
and inflation have increased alongside the increase in child labor
in Pakistan. Many families become indebted to landlords and
36
HRB: What is the relationship among priorities to enforce
existing laws, engage directly with communities on incomegeneration projects, and provide access to quality free
education?
providing soft loans without interest to poor families who wish
to start their own businesses. The donor agencies that support
NGOs and governments should also think about investing in
long-term projects to build the child protection system at the
local level in Pakistan. This mechanism could include social
and legal protection, health, education, training, and livelihood
opportunities.
Each priority is equally as important and interdependent.
Without one of these approaches, we cannot address the issue
of child labor in Pakistan. Our research studies confirm that the
ratio of child labor is higher in areas where people are poor and
the education system is weak or absent. Introducing new laws
is insufficient. We must understand the needs of poor families.
They want their children to attend school and not to work, but
they are compelled by poverty to send their children to work.
For example, in some villages, communities told us that their
children were sick or disabled. We were able to help get them the
immediate health care they needed, although this was not part of
the project. Families’ biggest concern is survival, and they do not
know how to survive if their children stop earning money. They
also do not see a big change as a result of education. They are
concerned that if they invest in a child’s education, there is no
guarantee that the child will get a job.
HRB: What can the government do to address the issues that
your program identified in its five years of operation?
Ultimately, the government is responsible to take care of
these children. NGOs cannot do it all. In my advocacy to the
government, I asked that the government simply implement the
laws that exist and, where there are gaps in the law, amend them.
The government has moved too slowly, and in the meantime, the
community has needs. They need livelihood support and quality
education for their children. The government should make the
issue of education a top priority and increase the budget and
resources for quality education. The government should also
depoliticize the education system. It’s time now to implement the
free and compulsory education model in every village, district,
and province for every child through grade ten. I am sure that
once the government prioritizes providing quality education, the
community will begin to see the importance of education and
will want their children to be educated.
HRB: How does a non-formal education center (NFE Center),
like those set up by Thardeep, meet the needs of a community
lacking a formal education system?
The term formal education refers to the structured educational system provided for children by the Pakistani government.
Informal education can be good in cases when and where there
is a need. However, it cannot replace formal education entirely.
Typically, the term informal education is used to refer to adult
literacy and continuing education programs. We used this model
for underserved and working children. We can accommodate
children who have not yet received an education by teaching
grades one through five in three years. This model worked well
for girls and working children because the schools were closer
to home, we employed local teachers, and provided flexible class
times. It is important that every child get an education, so, while
we are working on getting children out of the labor industry, it
is important that the education provided be feasible, flexible,
and convenient. This can be done through informal education.
Oftentimes, governments cannot do this alone, but civil society,
NGOs, and the international community can be instrumental
in increasing the literacy rate and decreasing child labor, both
through formal and informal education mechanisms.
HRB: What legal mechanisms are available to push the government to take ownership of rural children’s education?
We can use a combination of domestic and international
law. Pakistan has ratified the United Nations Convention on the
Rights of the Child (CRC). We also have domestic laws: the
Employment of Children Act, the Child Protection Authority,
and the Child Marriage Act. The issue is enforcement. As a
civil society, we can arrange a dialogue, conduct capacity building trainings, and use the news media. These are our tools. We
can engage the community, parents, and children. They should
be able to ask the government for what they need. During this
project, we worked on passing the Child Protection Authority
Bill by engaging a dialogue between children and the parliamentarians. The children communicated their specific needs to
the parliamentarians, and this helped the bill get passed in 2011.
Under this bill, there should be child protection officers from
the government present at the local level, but we know that civil
society organizations will need to push the government to ensure
implementation. We have also submitted a report in the UN
Committee on the Rights of the Child and a Universal Periodic
Report on the platform of the Child Rights Movement, alongside
the report from the government of Pakistan. We pointed out the
laws currently in place and said that we do not have enforcement. We pointed to widespread corruption. The UN member
countries gave hundreds of recommendations for Pakistan to
promote child protection, gender equality, and education. The
government responded positively that they would work to implement the laws in place and promote child rights, but progress
has been slow.
HRB: How can a project like yours work to ensure that it is
sustainable in the community?
When Thardeep initiated the child labor project in 2007,
we decided that we would become the leading organization in
Pakistan working on child labor issues. We created NFE Centers
in areas where there were not adequate government schools. At
the end of five years, however, the funding stopped and we could
not continue to run the NFE Centers. The systems that we developed in five years could not be maintained without funding.
NGOs are donor-driven, so they are only able to work on small
projects for a short period of time, though the issue of child
labor in Pakistan is vast and ongoing. Given the financial constraints, NGOs can only create models to show the government
best practices. It is the government’s responsibility to replicate
these models and initiate long-term programs. For example, the
government should be creating livelihood opportunities, such as
Megan Wakefield, Content Editor of the Human Rights Brief,
conducted this interview with Pirbhu Lal Satyani on March 4,
2014. Megan Wakefield is a 2014 J.D. Candidate at American
University Washington College of Law.
37
BOOK REVIEW
Jonathan Crowe & Kylie Weston-Scheuber: Principles of
International Humanitarian Law (Edward Elgar 2013)
Jonathan Crowe, an associate professor at the T.C. Beirne
School of Law at the University of Queensland, collaborated
over a ten-year period with barrister Kylie Weston-Scheuber
to develop a brief yet versatile resource on international
humanitarian law. The resulting text, Principles of International
Humanitarian Law, provides an overview of the law that governs
conflicts, including permissible methods of warfare and protected persons, while identifying motivating factors underlying
the development and adherence to international humanitarian
law.
challenges developing within conflict classification and the law
of armed conflict — such as the 2006 conflict in Lebanon. This
conflict raises concerns over the “delineation of the boundaries
between types of conflict” since conflicts between a state (Israel)
and non-state entity (Hezbollah) in the territory of another state
(Lebanon) fall outside the typical classification of international
armed conflict or non-international armed conflict. In re-emphasizing the common human values in international humanitarian law, the authors recognize, however, the variable respect
for international humanitarian norms in conflict situations.
Throughout the text, the authors encourage the reader to explore
the real-life application of these rules and principles, such as
ambiguities in the use of the term “right” and why conflict
definitions are important in actual conflicts. The authors pose
questions to readers on whether an organized criminal organization may be considered an organized armed group. Although the
authors do not provide an answer, they instead demonstrate the
complexity involved in classifying conflicts, combatants, and
permissible means and methods of warfare.
Serving more as a primer than an analytical text on international humanitarian law, the authors explore the law of armed
conflict through its history and philosophical foundations.
Starting with “the basic values that unite human societies,” the
authors identify the momentum behind creating a global legal
regime to govern warfare — to solidify customary law principles
that seek to mitigate the effects of warfare long after the conflict
has ended. This common foundation for international humanitarian law resurfaces when considering multilateral treaty formation, weapons prohibitions, and state liability. Throughout
the text, Crowe and Weston-Scheuber reaffirm the humanitarian
basis for the development of laws governing conduct in warfare.
While generally providing a broad perspective on the development and application of international humanitarian law, the
authors overlooked a few opportunities to emphasize the full
extent of the global support for these principles. Integrated
throughout the book is a focus on the ethical and philosophical
basis behind the codification of international humanitarian law
principles within customary international law and the Geneva
Conventions. As a result, the book primarily provides a westerncentric discussion of the Greek and Roman contributions to
the laws of armed conflict, while avoiding discussion of other
cultural underpinnings that supported the global adoption of the
fundamental principles that govern conduct in war. Despite these
minor critiques, the book provides a clear and concise explanation of fundamental principles of international humanitarian law.
The authors successfully incorporate the philosophical, ethical,
and legal context and demonstrate that the “continued effectiveness” of international humanitarian law “depends not so much
on the formal status of the applicable legal documents, as on the
continuation of the international spirit of cooperation that those
documents reflect.”
While focusing on international humanitarian law, the authors
place the fundamental legal principles involved in armed conflict
into context with auxiliary international legal doctrines, such
as human rights law and international criminal law. The final
chapter, Chapter 8, is devoted to individual liability, addressing
how violations of international humanitarian law operate under
international criminal law. In Chapter 6, the authors emphasize
the broad scope of human rights law within the narrow scope of
international humanitarian law — how human rights law contributes, but is subordinate, to international humanitarian law
in armed conflicts. By addressing additional legal principles,
the authors present the realistic development and application of
international humanitarian law — it does not exist in a vacuum
but consistently requires consideration of legal doctrines found
outside of the principles of international humanitarian law. The
authors dedicate an entire chapter to the parallels and tension
between international humanitarian law and human rights law,
posing thoughtful questions in response to the challenges in
reconciling these two legal fields in armed conflict situations.
For instance, while international humanitarian law applies in an
armed conflict, the authors identify friction with the underlying
application of human rights law, particularly where “international humanitarian law requires an action that international
human rights law prohibits.”
In just 191 pages, the authors manage to develop a resource
that will be useful to a range of readers. Logically organized
to progress through more nuanced principles in international
humanitarian law, each chapter begins with a concise overview
of the topic to be addressed while referring back to principles
and treaties discussed in prior chapters. This structure allows
the reader to proceed methodically through the text or to quickly
skim the chapter on protection of civilians to understand prohibited attacks. As a student, you would reach for this book to help
provide a basic understanding of the Geneva Conventions and
the foundations of international humanitarian law as expressed
in the Tadić opinion by the International Criminal Tribunal for
In subsequent chapters, the authors avoided substantial commentary on current issues in international humanitarian law,
but rather focused on the fundamental principles that guide
international humanitarian law. While grappling with these fundamental principles, Crowe and Weston-Scheuber also discussed
38
the former Yugoslavia. As a practitioner, this book provides a
useful review of basic concepts as well as extensive references
to additional resources meant to expand on these fundamental
principles in international humanitarian law. Crowe and WestonScheuber have skillfully developed a text that is accessible and
adaptable to a diverse group of readers, unraveling the complexity of international humanitarian law for all.
Chelsea Zimmerman, a J.D. Candidate at the American
University Washington College of Law reviewed Principles of
International Humanitarian Law for the Human Rights Brief.
Selected Coverage of the 150th Session of the
Inter-American Commission on Human Rights
of cases in which a white individual shoots a minority person
are deemed justifiable as opposed to around three percent of
cases in which a minority person shoots a white individual.
Below are three selected summaries of hearings at the
150th Session. For summaries of all hearings in both Spanish
and English, please visit www.hrbrief.org.
A representative of the NAACP critiqued the laws for
doing away with the requirement to retreat in the case of murder in self-defense, thus expanding the “Castle Doctrine” to
include anywhere an individual may go rather than being limited to the home. The representative contends that this means
that an individual can treat the entire state as their home and
can aggressively defend themselves anywhere if put in reasonable fear for their life without being required to retreat before
using deadly force.
Impact of “Stand Your Ground” Laws on
Minorities in the United States
On March 25, 2014, Petitioners from numerous organizations and advocacy groups appeared before the InterAmerican Commission on Human Rights (IACHR) to express
concerns regarding the use of “Stand Your Ground” (SYG)
laws in the criminal justice system in several U.S. states.
High-profile cases such as the Trayvon Martin and Jordan
Davis have brought the contentious issue of SYG laws to the
attention of the American public, sparking serious debate over
the constitutionality of SYG laws. At the hearing, Petitioners,
including the mother of Trayvon Martin and father of Jordan
Davis, detailed the racial bias inherent in the implementation
of SYG provisions in self-defense laws and the need to reform
these laws.
Due to the uneven application of these laws within U.S.
states, Petitioners are calling for reform at the federal level.
Petitioners urge Congress to enact reasonable gun control
laws such as background checks and the requirement that
federal funding for state law enforcement be conditioned upon
dropping SYG provisions from self-defense laws. Petitioners
lamented that despite public calls for the repeal of SYG, the
Florida legislature has in fact moved closer to passing more
SYG-like laws such as the Warning Shot Bill, which protects
individuals from liability when firing a warning shot.
Petitioners argued that SYG provisions are incompatible
with the right to life and the application of these laws have
impeded justice for victims by giving individuals license
to take the lives of others without reasonable justification.
Petitioners further alleged that there is a disparity between the
judgments in cases where a minority individual claims a SYG
defense versus when a SYG defense is claimed in the shooting
of a minority. According to the Petitioners, about forty percent
The mother of Trayvon Martin and the father of Jordan
Davis gave statements regarding their own fears for minority
youths in the United States should SYG laws remain in their
current iteration. Davis’ father stated that SYG laws give the
power of judgment between life and death to the racial biases
and suspicions of individuals. He called for SYG provisions
to be rewritten in order to avoid more murders of innocent
people, stating that under SYG laws, the deaths of his son and
many others have simply been classified as collateral damage.
The Free Marissa Now campaign, an alliance of activists
and organizations, is working to free Marissa Alexander, an
African American woman currently imprisoned for firing a
warning shot as her husband attacked her. A representative
from the campaign also stressed the existence of racial and
gender bias against black women inherent in the SYG laws,
highlighting Marissa’s case. Marissa fired a warning shot as
her husband assaulted, strangled, and threatened to kill her.
The shot did not injure her husband, who fled the home after
the shot was fired. The court in her case determined SYG
protections did not apply to Marissa, concluding that she was
not put in sufficient fear of her life. She was consequently
Impact of “Stand Your Ground” Laws on Minorities in the United
States. Photo courtesy of Inter-American Commission on Human
Rights.
39
sentenced to twenty years in prison due to Florida’s mandatory
minimum sentencing laws.
U.S. representatives expressed their understanding of public concerns regarding SYG laws. They noted, however, that
reform at the federal level is problematic because most criminal laws are passed and enacted at the state level. Additionally,
SYG laws are not uniform in implementation and scope from
state to state, further complicating the prospect of reform on
a national scale. U.S. representatives assured the Commission
that the information and testimony from this hearing would
be considered in the Federal Bureau of Investigation and
Department of Justice’s ongoing investigation on the issue of
SYG laws in recent criminal cases. After their brief response,
the U.S. representatives gave the remainder of their time to
the Petitioners to allow them to continue to present their case
before the Commission.
Human Rights Situation of Persons Deprived of Liberty in
Nicaragua. Photo courtesy of Inter-American Commission on
Human Rights.
Thus, Petitioners asked the IACHR to urge Nicaragua to
allow human rights groups access to the country’s detention
centers, to stop the long-term detention of inmates in police
holding cells, and to improve the infrastructure of its prison
system. Petitioners also requested an IACHR in-country visit
to Nicaragua.
Kendall Niles covered this hearing for the Human Rights
Brief.
Human Rights Situation of Persons Deprived
of Liberty in Nicaragua
On March 25, 2014, the Inter-American Commission on
Human Rights (IACHR) heard a petition addressing the state
of human rights in Nicaragua’s prisons. Petitioners alleged
that individuals deprived of liberty in Nicaragua are subjected
to numerous human rights abuses, including inadequate
access to food and medical treatment, torture, and cruel and
degrading punishment.
The representative speaking on behalf of the Nicaragua
government began his response by noting that the main
objective of the prison system is rehabilitation. Additionally,
the state indicated that the mistreatment of prisoners is illegal under Article 36 of the Nicaraguan Constitution, which
protects the individual’s physical, psychological, and moral
integrity. Thus, the state noted that torture and other cruel and
degrading punishment violates domestic law.
The bulk of the Petitioners’ presentation was focused on
the adverse human rights consequences of overcrowding in
Nicaragua’s prisons. Petitioners indicated that the Nicaraguan
prison system held over 12,000 inmates as of September 2013,
despite the fact that it was only capable of accommodating
5,496 inmates. To relieve overcrowding, the government has
begun holding condemned criminals in police holding cells.
However, Nicaraguan law dictates that individuals may only
be detained in police holding cells for a period of forty-eight
hours in order to provide the police with sufficient time
to conduct criminal investigations. Petitioners alleged that
frequent human rights abuses have taken place in these overcrowded police cells, including the rape of detained women
by police officers; the death of numerous detainees due to
inadequate food, water, and medical attention; and the torture
of various inmates.
The state also refuted Petitioners’ allegations of inadequate
inmate nutrition and access to medical treatment, claiming that
the prison system has its own fully licensed physicians and
nurses that provide general and specialized medical treatment
to inmates. State representatives also asserted that inmates are
fed three square meals a day, and that doctors and other prison
officials closely monitor the food’s quality. Furthermore, the
state indicated that it has increased the prison system’s budget
and is building new prison facilities to reduce overcrowding.
In closing, Commissioners James L. Cavallaro, Rapporteur
on the Rights of Persons Deprived of Liberty, and Tracy
Robinson, Rapporteur for Nicaragua, requested more information from the state detailing the government’s position on
allowing civil society groups to monitor the prison system. In
addition, they requested further information on what the government is doing to investigate instances of inmate death and
violence. Commissioner Rose-Marie Belle Antoine endorsed
the government’s goal of prisoner rehabilitation, but requested
more information from the government on how it is achieving
this goal. Additionally, all of the Commissioners expressed
their interest in visiting Nicaragua to evaluate and assess
the state of its prison system. The hearing concluded with
Nicaragua agreeing to discuss the possibility of allowing the
IACHR to conduct an in-county visit.
Additionally, Petitioners noted that overcrowding has larger
implications on the prison system as a whole. They alleged
that overcrowding has led to a decrease in inmate safety across
the prison system. Petitioners presented numerous examples
of compromised inmate safety, including the rape and beating
of a prisoner by multiple inmates, and the unexplained death
of an inmate while in his own cell. Furthermore, they alleged
that prison officials have failed to publish any findings on
these instances of inmate violence and many others like them
across the prison system. Thus, Petitioners have had to rely
in part on the testimony of the inmates and their families to
uncover instances of violence and abuse.
David Llanes covered this hearing for the Human Rights
Brief.
40
Situation of Human Rights Defenders
in the Americas
peoples and women who are subjected to attacks motivated by
land developers’ strategic economic interests. Petitioners also
noted the additional difficulties for the indigenous population
to report any human rights violations against them because of
language barriers, fear, and their secluded location. Women
human rights defenders face gender stereotyping which make
them more vulnerable to harassment, murder, and attacks
against their family. Lesbian, gay, bisexual, and transgender
human rights defenders are often denied any form of protection and are not acknowledged as legitimate human rights
defenders due to prevalent homophobia attitudes in society.
Petitioners appeared before the Inter-American
Commission on Human Rights (IACHR) on March 24, 2014,
to bring attention to the issues and challenges that increasingly
affect the safety and activities of human rights defenders in the
Americas. They urged the IACHR to take affirmative action to
protect human rights defenders from constant mistreatment by
both state and non-state actors.
On behalf of more than thirty-seven human rights organization in the Americas, Center for Justice and International
Law (CEJIL) expressed concerns regarding the need to
strengthen mechanisms available to protect human rights
defenders. CEJIL specifically noted that most states have
not implemented the standards in the IACHR’s Second
Report on the Situation of Human Rights Defenders in the
Americas. CEJIL also addressed and emphasized the different ways in which human rights defenders’ personal integrity
is not respected, citing multiple incidences of execution,
forced disappearances, murder, physical attacks, and harassment. Focusing on specific countries, CEJIL noted that in
2013 alone, Colombia and Venezuela recorded 96 murders
and 206 murder attempts against human rights defenders.
Furthermore, in Colombia, human rights defenders are subjected to persecution, imprisonment, and spying tactics by the
Security Administrative Department (DAS) for helping people
who have been assaulted by the police. Additionally, in April
2013, the Venezuelan government conducted a campaign to
dissolve the training of human rights defenders and slander
their work through news articles, oftentimes accusing human
rights defenders as being terrorists. CEJIL concluded by noting multiple national laws are ostensibly for national security
and terrorism purposes, but in actuality restrict the right to
association and activities of human rights defenders, as well as
lead to physical attacks by armed forces during protests. The
Pachamama Foundation, for example, an organization promoting the rights of indigenous peoples was forced to leave
Ecuador without due process under Presidential Decree 16.
Petitioners from the Grupo Interdisciplinario por los
Derechos Humanos (GIDH) of Colombia concluded the
presentation, informing the Commission that the current
methodologies for collecting investigatory materials are inappropriate. GIDH argued that investigations should examine
the context of the alleged violations on a case-by-case basis
and requested that the IACHR oversee and supervise these
procedures to ensure that countries are meeting the minimum
standards. Asociación Interamericana para la Defensa del
Ambiente (AIDA) requested that the Commission investigate
states’ capabilities to proactively process cases and grant
hearings. Justicia Global of Brazil notified the Commission
that Amnesty International has criticized Brazil’s protection
programs in its 2012 Annual Report for failing to perform
because of lack of funding, political will, and insufficient police protection. In closing, Asociación Pro Derechos
Humanos requested that the Commission establish a followup mechanism to ensure state compliance, cooperate with civil
society organizations, consider setting regional guidelines for
better protection, examine laws that criminalize human rights
defenders, and take political measures as necessary.
In response, Commissioner José de Jesús Orozco Henríquez
acknowledged the serious increase in harassment and violence
against human rights defenders in the Americas, and impunity as the biggest impediment to the work of human rights
defenders. He urged states to not only take on the obligation
to protect these groups, but also seek to eradicate the cause for
such persecution, which can only be done by effective investigations. Commissioner Paulo Vannuchi asked the petitioners
to identify any specific incidents of persecution and any best
practices that provide stronger protection for human rights
defenders. Commissioner James Cavallro asked the petitioners to send any concrete suggestions for improvement since
appropriate solutions must be tailored to each country.
Following CEJIL’s presentation, Petitioners from Oficina
Jurídica Para la Mujer further addressed issues affecting specific categories of human rights defenders. Petitioners focused
on human rights litigation of land matters for indigenous
Petitioners concluded the hearing with a comment that
precautionary measures outlined in Rules of Procedure of
the Inter-American Commission on Human Rights Article
25 proved effective in Colombia. In order to continue the
use of precautionary measures, Petitioners requested that the
Commission monitor states consistently. Commissioners and
Petitioners outlined the possibility of pursuing this matter further in a regional meeting including testimonies from technical and academic experts.
Min Jung Kim covered this hearing for the Human Rights
Brief.
Situation of Human Rights Defenders in the Americas. Photo
courtesy of Inter-American Commission on Human Rights.
41
Cobertura Seleccionada de la 150a Sesión de la
Comisión Interamericana de Derechos Humanos
leyes de defensa propia. Los Peticionarios lamentaron que a
pesar de que el público ha pedido la derogación de las SYG, la
legislatura de la Florida ha estado a favor de pasar más leyes
de tipo SYG, tales come la Ley del Tiro de Advertencia, la
cual protege a los individuos de toda responsabilidad cuando
disparan un tiro de advertencia.
La madre de Trayvon Martin y el padre de Jordan Davis
brindaron testimonios de sus propios miedos por los jóvenes
de grupos minoritarios en los Estados Unidos si las SYG
siguen en su versión actual. El padre de Davis declaró que las
leyes SYG empoderan al individuo para decidir entre la vida
y la muerte de otros y dicho juicio puede estar nublado por
los prejuicios raciales y sospechas percibidas. El pidió que
nuevamente se escriban las provisiones SYG para evitar más
homicidios de personas inocente, diciendo que bajo las leyes
SYG la muerte de su hijo y muchas otras muertes se habían
simplemente clasificado como daños colaterales.
La campaña Liberen a Marissa Ahora, la cual es una
alianza de activistas y organizaciones, trabajando para liberar a Marissa Alexander, una mujer Afro-Americana que
está actualmente presa por disparar un tiro de advertencia
cuando su esposo la atacó. Un representante de la campaña
también enfatizó la existencia de prejuicios raciales y de
género contra las mujeres afro-americanas inherente en las
leyes SYG, señalando el caso de Marissa. Marissa disparó un
tiro de advertencia cuando su esposo la agredía, estrangulaba,
y amenazaba de muerte. El tiro no hirió a su esposo, quien
escapó de la casa después del disparo. La corte, en su caso,
determinó que las protecciones en las SYG no aplicaban para
Marissa, sosteniendo que ella no se encontraba en una situación de suficiente peligro por su vida. Por tal razón, ella fue
sentenciada a veinte años en prisión debido a las sentencias
mínimas obligatorias de la Florida.
Representantes de los Estados Unidos expresaron su
comprensión sobre las preocupaciones del público en cuanto
a leyes de SYG. Sin embargo, ellos notaron que la reforma
a nivel federal es problemática dado a que la mayoría de
leyes penales son aprobadas y promulgadas a nivel estatal.
Adicionalmente, las leyes SYG no son uniformes en su
implementación y alcance en los diferentes estados, complicando aún más el prospecto de una reforma a escala nacional.
Representantes de los Estados Unidos le aseguraron a la
Comisión que la información y el testimonio de esta audiencia
iban a ser tomados en consideración por parte de la Agencia
Federal de Investigaciones (FBI por sus siglas en ingles) y el
Departamento de Justica en la continua investigación sobre las
leyes SYG en los recientes casos penales. Después de su breve
respuesta, los representantes de los Estados Unidos le dieron
el resto de su tiempo a los peticionarios para permitirles continuar exponiendo su caso ante la Comisión.
Escrito por Kendall Niles para Human Rights Brief.
Human Rights Brief agradece a Paula Cortes por su
colaboración en la traducción de este resumen.
Aquí siguen tres resúmenes seleccionados de las audiencias ante la 150ª Sesión. Para poder leer todos los resúmenes
en ingles y en español, por favor visite www.hrbrief.org.
El Impacto de las leyes de “Stand Your Ground”
En Las Minorías En Los Estados Unidos
El 25 de marzo del 2014, Peticionarios provenientes de
varias organizaciones y grupos de defensa que acudieron ante
la Comisión Interamericana de Derechos Humanos (CIDH)
para expresar sus preocupaciones sobre el uso de las leyes
de “Stand Your Ground” (SYG) (Defender su Posición en
Español), en el sistema de justicia penal en varios estados de
los Estados Unidos. Casos de alto perfil, tales como los de
Trayvon Martin y Jordan Davis, han llevado el tema contencioso de las leyes SYG a la atención del público Americano,
y han generado un serio debate sobre la constitucionalidad de
las leyes SYG. En la audiencia, los Peticionarios, incluyendo
la madre de Trayvon Martin y el padre de Jordan Davis, detallaron que el prejuicio racial es inherente en la implementación
de las provisiones de defensa propia de las leyes SYG y la
necesidad de reformar estas leyes.
Los Peticionarios argumentaron que las provisiones de las
SYG son incompatibles con el derecho a la vida y que la aplicación de estas leyes han impedido justicia para las victimas,
permitiendo que algunos individuos tomen las vidas de otros
sin una justificación razonable. Los Peticionarios argumentaron que hay una disparidad entre los juicios de casos en donde
un individuo de una minoría alega una defensa basada en las
SYG, en comparación a cuando una defensa basada en las
SYG es invocada por dispararle a una persona que pertenece
a un grupo minoritario. Según los Peticionarios, alrededor del
cuarenta porciento de los casos en los que un individuo anglosajón le dispara a una persona de un grupo minoritario son
considerados justificados en comparación al tres porciento de
los casos en los cuales una persona de un grupo minoritario le
dispara a un individuo anglosajón.
Un representante de la NAACP criticó las leyes que
eliminan el requisito de retirarse en el caso de un homicidio en
defensa propia, y a su vez expandiendo la “doctrina castillo”,
la cual prevé defensa si el individuo disparando estaba en su
hogar, para ahora incluir cualquier lugar donde un individuo
pueda disparar. El representante afirma que esto significa que
un individuo puede tratar al estado entero como su casa y así
defenderse agresivamente en cualquier parte si tiene miedo
justificado por su vida sin tener que retirarse antes de usar
fuerza letal.
Debido a la aplicación desigual de estas leyes entre los estados Americanos, los Peticionarios están pidiendo una reforma
a nivel federal. Los Peticionarios piden que el Congreso promulgue leyes razonables para el control de armas, como leyes
de verificación de antecedentes, y el requerimiento de que los
fondos federales para la aplicación de las leyes estatales estén
condicionados a la suspensión de las provisiones SYG de las
42
Situación de Derechos Humanos de las Personas
Privadas de Libertad en Nicaragua
El estado también rechazó los alegatos de la falta de
nutrición y el acceso médico, reclamando que el sistema penitenciario cuenta con sus propios médicos y enfermeras que les
proveen atención médica general y especializada a todos los
que la necesitan. Representantes del estado además aseveraron que los presos son alimentados con tres comidas al día,
y que doctores y otros funcionarios de la cárcel atentamente
monitorean la calidad de la comida. Por otra parte, el estado
indicó que ha aumentado el presupuesto al sistema penitenciario, y que está construyendo nuevas cárceles pare reducir
el hacinamiento.
El 25 de marzo de 2014, la Comisión Interamericana de
Derechos Humanos (CIDH) escuchó una petición sobre la situación de los derechos humanos en las cárceles nicaragüenses.
Los Peticionarios alegaron que las personas privadas de libertad en Nicaragua son sometidas a numerosas violaciones de
sus derechos humanos, incluyendo el acceso inadecuado a los
alimentos y el tratamiento médico, tortura y tratos crueles y
degradantes.
Los Peticionarios se enfocaron principalmente en las
violaciones de los derechos humanos causadas por el hacinamiento carcelario. Los Peticionarios indicaron que a partir de
septiembre de 2013, el sistema penitenciario contenía a más
de 12,000 reclusos, a pesar de que solo era capaz de albergar
a 5,496 reclusos. Para aliviar el hacinamiento, el gobierno ha
empezado a detener a los criminales ya condenados en celdas
policiales. Sin embargo, la ley nicaragüense establece que las
personas sólo pueden ser detenidas en las celdas policiales por
un período de cuarenta y ocho horas hasta que la policía pueda
llevar a cabo investigaciones criminales. Los Peticionarios
argumentaron que frecuentes abusos contra los derechos
humanos han ocurrido en estas celdas policiales sobrepobladas, incluyendo numerosas violaciones de detenidas por
agentes de la policía; la muerte de detenidos debido al acceso
inadecuado a alimentación, agua, atención médica; y la tortura
de varios reclusos.
En conclusión, los Comisionados James L. Cavallaro,
Relator sobre los Derechos de la Personas Privadas de
Libertad, y Tracy Robinson, Relatora para Nicaragua, le
solicitaron más información al estado detallando la posición
del gobierno sobre el monitoreo del sistema penitenciario
por la sociedad civil. Además, ambos pidieron más información detallando los esfuerzos del gobierno en investigar
casos de muerte y violencia en las cárceles. La Comisionada
Rose-Marie Antoine apoyó el objetivo de rehabilitar a los
reclusos, pero le pidió más información al gobierno sobre
cómo se está logrando este objetivo. Adicionalmente, todos
los Comisionados expresaron su interés en visitar Nicaragua
para evaluar y analizar el estado de su sistema penitenciario.
La audiencia concluyó con Nicaragua acordando considerar la
posibilidad de una futura visita por la CIDH.
Escrito por David Llanes para Human Rights Brief.
Además, los Peticionarios señalaron que el hacinamiento
también tiene implicaciones para todo el sistema penitenciario en su conjunto, y alegaron que el hacinamiento ha
disminuido la seguridad de los reclusos a través del sistema.
Los Peticionarios presentaron numerosos ejemplos de la disminuida seguridad enfrentada por los reclusos nicaragüenses,
incluyendo la violación y la paliza de un prisionero por múltiples reclusos, y la muerte inexplicada de un recluso en su propia celda. Adicionalmente, fue indicado que las autoridades
penitenciarias no han publicado ningunos hallazgos sobre
estos casos de violencia y muchas otras como ellos a través del
sistema penitenciario. A consecuencia, los Peticionarios han
tenido que depender en parte en los testimonios de los presos
y sus familiares para descubrir casos de violencia y abuso.
Situación de derechos humanos de defensoras y
defensores en las Américas
Los peticionarios se presentaron ante la Comisión
Interamericana de Derechos Humanos (CIDH) el día 24
de marzo de 2014 para exponer la situación y los retos que
significativamente aumentan, afectando la seguridad y las
actividades de los defensores de derechos humanos en las
Américas. De igual manera solicitaron a la CIDH a adoptar
medidas positivas para proteger a los defensores de derechos
humanos quienes sufren un constante maltrato por parte del
Estado y actores no estatales.
Representando a más de treinta y siete organizaciones de
derechos humanos en las Américas, el Centro por la Justicia
y el Derecho Internacional (CEJIL), expreso en primer lugar
su preocupación por la necesidad de fortalecer los mecanismos disponibles para proteger a los defensores de derechos
humanos. CEJIL específicamente mencionó que la mayoría de
los Estados no han implementado los estándares del Segundo
Informe sobre la Situación de las Defensoras y los Defensores
de Derechos Humanos de las Américas de la CIDH. CEJIL de
igual manera señaló y enfatizó las diferentes maneras por las
cuales la integridad personal de los defensores de derechos
humanos no es respetada, y citó múltiples incidencias de
ejecuciones, desapariciones forzadas, asesinatos, ataques
físicos y hostigamiento. Enfocándose en países específicos,
CEJIL describió que en el año 2013 tan sólo en Colombia y
Venezuela se registraron 96 asesinatos y 206 atentados contra
defensores de derechos humanos. Aunado a esto, en Colombia
Por lo tanto, los Peticionarios le solicitaron a la CIDH
que urja a Nicaragua a permitir a los grupos humanitarios el
acceso a los centros de detención, eliminar la detención prolongada en las celdas policiales y mejorar la infraestructura
del sistema penitenciario. Los Peticionarios también solicitaron una visita de la CIDH a Nicaragua.
El representante por parte del gobierno de Nicaragua
empezó su respuesta señalando que el principal objetivo del
sistema penitenciario es la rehabilitación. Además, el estado
indicó que el maltrato de los prisioneros es ilegal bajo el
Artículo 36 de la Constitución de Nicaragua, el cual protege
la integridad física, psicológica y moral del individuo. Por lo
tanto, el Estado señaló que la tortura y otros castigos crueles
y degradantes son violaciones de la ley domestica.
43
los defensores de derechos humanos son sujetos a persecución,
encarcelamiento y tácticas de espía por el Departamento de
Seguridad Administrativa (DAS) por el hecho de asistir a personas que han sido atacadas por la policía. Adicionalmente, en
Abril del 2013, el gobierno venezolano condujo una campaña
para desintegrar el entrenamiento de defensores de derechos
humanos y difamar su trabajo a través de artículos noticiosos,
muchas veces acusándolos de ser terroristas. CEJIL concluyó
señalando la existencia de múltiples leyes que aparentemente
son para la seguridad nacional y el terrorismo, pero que en
realidad restringen el derecho de asociación y restringen actividades de los defensores de derechos humanos, como también
facilitan ataques contra la persona por las fuerzas armadas
durante protestas. La Fundación Pachamama es un ejemplo de
una organización que promueve los derechos de los indígenas,
que fue forzada a salir de Ecuador sin debido proceso a través
del Decreto Presidencial 16.
a defensores de derechos humanos y que utilicen medidas
políticas de ser necesario.
En respuesta, el Comisionado José de Jesús Orozco
Henríquez reconoció el grave incremento en hostigamiento y
violencia en contra de defensores de derechos humanos en las
Américas y que la impunidad es el mayor impedimento del
trabajo de los defensores de derechos humanos. Solicitó de
manera urgente a los Estados, no sólo tomar la responsabilidad de proteger a estos grupos sino también buscar erradicar
la causa de las persecuciones, las cuales sólo pueden llevarse
a cabo con investigaciones eficientes. El Comisionado Paulo
Vannuchi solicitó a los peticionarios identificar los incidentes
específicos de persecución, así como las mejores prácticas
para proporcionar mayor protección a los defensores de
derechos humanos. El Comisionado James Cavallaro pidió
a los peticionarios enviar recomendaciones concretas para
mejorar las medidas puesto que las soluciones apropiadas
deben adaptarse a cada país.
En seguida de la presentación de CEJIL, Peticionarios de
la Oficina Jurídica Para la Mujer presentaron situaciones que
afectan categorías específicas de los defensores de derechos
humanos. Los peticionarios se enfocaron en el litigio de
derechos humanos sobre tierras y propiedades de las comunidades indígenas y las mujeres, que son sujetos a ataques
motivados por intereses estratégicos económicos de los desarrolladores inmobiliarios. Los peticionarios también señalaron
dificultades adicionales para las comunidades indígenas en
reportar cualquier violación de derechos humanos, por las
barreras de lenguaje, temor en reportar, y lo apartado de sus
localidades. Los defensores de derechos humanos para las
mujeres son estereotipados por género lo cual los hace más
vulnerables a hostigamiento, asesinatos y ataques en contra de
sus familias. Defensores de derechos humanos lesbianas, gay,
bisexual, o transgenero a menudo se les niega cualquier forma
de protección y no se les reconoce como defensores legítimos
de derechos humanos debido a las actitudes de homofobia que
prevalecen en la sociedad.
Los peticionarios concluyeron la audiencia comentando
que las medidas precautorias delineadas en las reglas de
procedimientos de la Comisión Interamericana de Derechos
Humanos en su artículo 25 resultaron efectivas en Colombia.
Con el fin de continuar el uso de medidas precautorias, los
peticionarios solicitaron a la Comisión monitorear a los estados de manera constante. Los Comisionados y peticionarios
previeron la posibilidad de trabajar en esta situación en juntas
regionales incluyendo testimonios de expertos técnicos y
académicos.
Escrito por Min Jung Kim para Human Rights Brief.
Human Rights Brief agradece a Samantha Mc Lane por su
colaboración en la traducción de este resumen.
Peticionarios del Grupo Interdisciplinario por los Derechos
Humanos (GIDH) de Colombia concluyeron la presentación,
informaron a la Comisión que las actuales metodologías para
recabar materiales de investigación son inapropiadas. GIDH
argumentó que las investigaciones deben examinar el contexto
de las violaciones señaladas basadas en un modelo de caso por
caso y solicitaron a la CIDH supervisar estos procedimientos, para asegurar que los países cumplan con los estándares
mínimos. La Asociación Interamericana para la Defensa del
Ambiente (AIDA) solicito que la Comisión investigue la capacidad de los estados a dar seguimiento proactivo para procesar
casos y otorgar audiencias. Justicia Global de Brasil notificó a
la Comisión que Amnistía Internacional ha criticado los programas de protección de Brasil en su Reporte Anual 2012 por
fallar en su ejecución por falta de recursos, voluntad política
e insuficiente protección policiaca. Al cerrar, la Asociación
Pro Derechos Humanos pidió que la Comisión establezca
un mecanismo para asegurara el cumplimiento por parte del
Estado, cooperación con organizaciones de la sociedad civil,
que consideren la implementación de guías regionales para
una mejor protección, que se examinen leyes que criminalizan
44
Judgment Summary: Special Court for Sierra Leone
Prosecutor v. Charles Ghankay Taylor, Appeals
Judgment (No. SCSL-03-01-A)
also reiterated that it is for the Trial Chamber to decide, on a
case-by-case basis, whether such “inclusive pleading of locations” in fact provided the accused with sufficient notice to
prepare a defense, taking into account “the fair trial rights of the
accused, the Prosecution’s obligation to plead clearly the material facts it intends to prove, the particulars of the case and the
interests of justice.” Here, the Appeals Chamber was satisfied
that the Trial Chamber undertook the necessary analysis and
thus did not overturn its decision to exclude evidence relating to
crimes not specifically pleaded in the indictment. The Appeals
Chamber also upheld the Trial Chamber’s decision holding that
the Prosecution had failed to adequately “cure” the defective
indictment, despite the Prosecution’s claims that it had provided
clear, consistent, and timely information that would have placed
the Defense on notice of the additional charges. According to
the Appeals Chamber, a Trial Chamber is not required to find
that a defective indictment has been cured, but rather it must act
in the interests of justice and consistently with the rights of the
accused. Here, the Trial Chamber acted within its discretion in
declining to find that the indictment had been adequately cured.
On September 26, 2013, the Appeals Chamber of the Special
Court for Sierra Leone (SCSL) upheld Trial Chamber II’s conviction of former Liberian President Charles Ghankay Taylor
and affirmed his sentence of fifty years imprisonment. Taylor,
who ruled Liberia from 1997 to 2003, was convicted May 30,
2012 on all eleven counts of the indictment. This included five
counts of crimes against humanity punishable under Article 2 of
the SCSL Statute (murder, rape, sexual slavery, other inhumane
acts, and enslavement); five counts under Common Article 3
and Additional Protocol II punishable under Article 3 of the
Statute (acts of terrorism; violence to life, health and physical
or mental well-being of persons, in particular murder and cruel
treatment; outrages upon personal dignity; and pillage); and one
count of serious violations of international humanitarian law
punishable under Article 4 of Statute (conscripting and enlisting
child soldiers under fifteen years old). Specifically, Taylor was
convicted of aiding and abetting and planning crimes carried
out by the Revolutionary United Front (RUF) and Armed Forces
Revolutionary Council (AFRC) in the districts of Bombali,
Kailahun, Kenema, Kono, Port Loko, and Freetown, and the
Western Area. Both the Prosecution and Taylor appealed the
Trial Chamber’s decision, with the Prosecution raising four
grounds and Taylor forty-five.
Finally, the Prosecution appealed the sentence, arguing
that the fifty-year prison sentence handed down by the Trial
Chamber was woefully inadequate given the nature and severity
of Taylor’s crimes. The Appeals Chamber disagreed, noting that
the Trial Chamber carefully reviewed the nature and gravity of
the crimes, as well as any aggravating and mitigating circumstances, and concluded that the Trial Chamber’s sentence was
“fair and reasonable in light of the totality of the circumstances.”
Judgment Regarding Prosecution’s Appeals
Among the Prosecution’s grounds for appeal was a claim
that Trial Chamber II erred by failing to find that, in addition
to aiding and abetting and planning the charged crimes, he
was responsible for ordering and instigating those crimes. The
Appeals Chamber declined to entertain the substance of this
challenge, however, finding that even if it were to grant the
grounds for appeal, “this would have no impact on the existing
convictions and Taylor would not be convicted of more crimes
than he already has been.” According to the Appeals Chamber,
the convictions of Taylor based on aiding and abetting and
planning liability “fully capture[d]” Taylor’s “culpable acts and
conduct,” and thus the Prosecution had failed to demonstrate
an error occasioning a miscarriage of justice with regard to this
challenge.
Judgment Regarding Taylor’s Appeals
The Chamber categorized Taylor’s grounds for appeal into
seven categories, namely: systematic errors in the evaluation of
evidence; errors that invalidate the planning convictions; errors
that invalidate the aiding and abetting convictions; irregularities in the judicial process; errors undermining the fairness of
the proceeding; “miscellaneous” errors; and errors relating
to the sentence. This summary will only address the Appeals
Chamber’s response to a handful of these challenges.
First, regarding the challenges to the Trial Chamber’s evaluation of the evidence, Taylor contended, inter alia, that the
Prosecution inappropriately relied on uncorroborated, hearsay
evidence from biased witnesses who received benefits for testifying against him. The Appeals Chamber began its analysis of
the Defense’s various claims relating to evidence by stressing
that Rule 89 of the SCSL’s Rules of Procedure and Evidence
broadly provides that “[a] Chamber may admit any relevant
evidence,” and that this provision “is in consonance with the
recognition that flexibility in admitting and evaluating evidence
in trials for violations of international criminal law is justified
by the sui generis nature of these trials.” It also stressed that the
rules governing the SCSL do not require corroboration of any
single witness’s testimony or other piece of evidence, nor do
The Prosecution also challenged the Trial Chamber’s decision to exclude evidence relating to crimes allegedly committed in locations not specifically mentioned in the indictment.
Specifically, the Prosecution maintained that the use of certain
phrases in the indictment, such as “various locations” in a district and “throughout a district,” was sufficient to put the accused
on notice that he was being charged with crimes in locations
not expressly named. In response, the Appeals Chamber began
by acknowledging that, in Sesay, et al., it had held that “[i]n
some cases, the widespread nature and sheer scale of crimes
make it unnecessary and impracticable to require a high degree
of specificity” in the indictment. Nevertheless, the Chamber
45
they exclude hearsay evidence or prevent a Trial Chamber from
relying on the testimony of “insider” witnesses. Rather, corroboration, the hearsay nature of evidence, and the circumstances of
the witness are all factors to be considered by the Trial Chamber
in assessing the credibility of evidence and the reliability and
weight to be given that evidence. Finally, the Appeals Chamber
recalled that it will uphold a Trial Chamber’s findings relating to
the credibility of evidence unless it finds that no reasonable trier
of fact could have reached the same conclusion. Applying these
general principles, the Appeals Chamber dismissed each of the
Defense’s evidentiary challenges.
Serb army – an organization that was engaged in both lawful and
unlawful activity during the conflict in the former Yugoslavia
– was not “specifically directed” towards the army’s criminal
activities. However, the SCSL Appeals Chamber rejected this
approach after conducting an independent review of the customary international law status of aiding and abetting liability and
finding no support for the Perišić judgment’s requirement of
“specific direction.”1 Lastly, the Appeals Chamber dismissed
the Defense’s challenge relating to the mens rea of aiding and
abetting liability, refusing to adopt the notion that the Trial
Chamber should have been required to find that Taylor actively
willed or desired the commission of the crimes because such
requirement would be inconsistent with the customary international law definition of aiding and abetting liability.
Next, the Appeals Chamber turned to Taylor’s claim that the
Trial Chamber erred in its assessment of aiding and abetting
liability. The Trial Chamber had found that Taylor satisfied the
requirements for such liability because he lent assistance to the
RUF and AFRC, that this assistance had a substantial effect on
the commission of the crimes, and that he acted with knowledge
that his assistance would have a substantial impact on the commission of crimes and with knowledge of the physical perpetrators’ intention to carry out the crimes. According to the Defense,
this approach violated the “principle of personal culpability” by:
“(i) criminalising any contribution made to a party to an armed
conflict; (ii) failing to distinguish between neutral and intrinsically criminal assistance; and (iii) improperly characterising the
RUF/AFRC as a criminal organization.” Further, the Defense
challenged the Trial Chamber’s application of a “knowledge”
standard rather than a “purpose” standard in evaluating the
requisite mens rea for aiding and abetting. Before turning to
the specifics of these challenges, the Appeals Chamber recalled
that the SCSL Statute does not “expressly establish” the actus
reus and mens rea elements of the modes of liability. However,
it noted, Rule 72bis of the Court’s Rules of Procedure and
Evidence makes clear that the “principles and rules of international customary law” are applicable sources of law to which the
Appeals Chamber may resort in giving effect to the object and
purpose of the Statute.
Next, the Appeals Chamber considered the Defense’s challenge to the Trial Chamber’s findings regarding planning liability, which was based on a claim that the Trial Chamber erred by
failing to require that the Prosecution prove he planned particular, “concrete crimes.” Specifically, the Defense cited to Brđanin,
a case tried before the ICTY, in which the Trial Chamber held:
“Where there is evidence of an accused having formulated a plan
that does not constitute a plan to commit concrete crimes, this
does not give rise to a liability through the mode of liability of
‘planning.’” However, the SCSL Appeals Chamber declined to
follow the Brđanin Trial Chamber, noting not only that subsequent ICTY jurisprudence had rejected this approach, but also
that the Special Court’s own Trial Chamber held in Brima, et al.
that the Brđanin interpretation was “an overly narrow construction of the responsibility for planning.” Instead, the Appeals
Chamber held that the requirement that the accused participated
“in designing an act or omission and thereby had a substantial
effect on the commission of the crime” was “sufficient to establish the culpable link between the accused and the crimes.” Note,
however, that the Appeals Chamber did overturn certain counts
of the Trial Chamber’s planning conviction based on a finding
that the Trial Chamber failed to provide a reasoned opinion in its
judgment in relation to Taylor’s guilt for planning certain crimes
occurring in the Kono District. This holding had no effect on
Taylor’s sentence.
Against this background, the Appeals Chamber first considered the actus reus element of aiding and abetting liability. As
an initial matter, the Appeals Chamber rejected the Defense’s
position that the Trial Chamber was required to find that Taylor
provided assistance to the specific individual who physically
perpetrated each specific act underlying a crime. Rather, the
Appeals Chamber held that the actus reus of aiding and abetting
“is established by assistance that has a substantial effect on the
crime, not by the particular manner in which such assistance
is provided.” In addition to this analysis, the Appeals Chamber
considered whether “specific direction” is an element of the
actus reus of aiding and abetting liability. While the Defense
did not raise this argument on appeal, the Appeals Chamber
addressed it in light of the recent judgment issued by the
Appeals Chamber of the International Criminal Tribunal for
the Former Yugoslavia (ICTY) in Perišić. In that judgment, the
ICTY acquitted Serbian and former Yugoslavian Chief of Staff
General Momčilo Perišić of aiding and abetting war crimes based
on a finding that the assistance Perišić provided to the Bosnian
Taylor is currently serving his sentence in a maximum-security prison in Great Britain, as his requests to be transferred to
Rwanda were denied. He is the only head of state to be convicted
of war crimes or crimes against humanity by an international
tribunal since the Nuremburg trials.
Written by Patty Walsh, a first-year law student at American
University Washington College of Law, and edited by Katherine
Cleary Thompson, Assistant Director of the War Crimes Research
Office.
1 It should be noted that the ICTY Appeals Chamber has recently
adopted the same position as the SCSL Appeals Chamber in another
case, calling into question the validity of the holding in Perišić even
as it pertains to the ICTY. See Prosecutor v. Šainović et al., Case No.
IT-05-87-A, ICTY Appeals Judgment (23 January 2014).
46
Judgment Summary: International Criminal Tribunal
for Rwanda
The Prosecutor v. Mugenzi and Mugiraneza, Appeals
Judgment, Case No. ICTR-99-50-A
the complexity of the proceedings, (3) the conduct of the parties, (4) the conduct of the authorities, and (5) the prejudice to
the accused. In conducting this analysis, the Appeals Chamber
found that since this case was one of the largest ever heard by
the Tribunal, it was not unreasonable to expect a long process.
It also determined Mugenzi’s claim that the Prosecution failed
to properly investigate and assess the weakness of its evidence
to be unsupported. Further, the Chamber found that Mugiraneza
had failed to demonstrate that his inclusion within the larger
case resulted in prolonging his trial. Nor was it convinced that
organizational failings or other judicial or trial management
activity caused undue delay in the case proceedings. Finally, it
rejected the notion that the accused had suffered prejudice as
a result of the delay. As a result, the majority of the Appeals
Chamber dismissed Mugenzi and Mugiraneza’s claims that the
Trial Chamber violated their right to trial without undue delay.
Judge Robinson wrote a separate, partially dissenting opinion in
which he concluded that the almost three year lapse between the
closing arguments and issuance of the Trial Judgment breached
the appellants’ right to a trial without undue delay. According
to Judge Robinson, this delay directly resulted from the judges’
workload and concluded that “[w]hen delay results from the
manner in which the Tribunal has organized and managed its
resources, it is no answer to a claim of undue delay that the exigencies of the Tribunal’s work dictated that course, if the claim
for undue delay is otherwise well-grounded.”
On February 4, 2013, the Appeals Chamber of the
International Criminal Tribunal for Rwanda (ICTR) issued
its judgment in the case against Justin Mugenzi and Prosper
Mugiraneza. On September 30, 2011, the Trial Chamber found
Mugenzi and Mugiraneza guilty of conspiracy to commit genocide and of direct and public incitement to commit genocide.
In the same judgment, the Trial Chamber acquitted Mugenzi’s
and Mugiraneza’s co-accused, Casimir Bizimungu and JérômeClément Bicamumpaka. Both Mugenzi and Mugiraneza were
sentenced by the Trial Chamber to thirty years imprisonment.
Despite denying Mugenzi’s and Mugiraneza’s claims that their
right to a fair trial was violated, the Appeals Chamber reversed
the Trial Chamber’s judgment and acquitted both accused.
Both Mugenzi and Mugiraneza advanced several grounds
of appeal — eighteen and seven, respectively — challenging
their convictions and sentence. Among the grounds for appeal
submitted by both men was a claim that their right to a fair trial
was violated because of alleged undue delay. In all, the period
between Mugenzi’s and Mugiraneza’s arrest on April 6, 1999
and the pronouncement of the Trial Judgment was twelve years,
five months, and twenty-four days.
In Mugenzi’s appeal, he argued that the Trial Court erred in
concluding that the delay in his case could be justified by the
size and complexity of the proceedings. Instead, Mugenzi argued
that the delay was a result of: (1) the organizational failures of
the Tribunal, (2) its treatment of his claims of delay during
pre-trial proceedings, and (3) the inflated indictment advanced
by the Prosecution because of its improper investigation and
assessment of evidence. He also stressed the prejudice he suffered because of the time he was forced to spend away from his
family and his inability to access witnesses. Mugiraneza argued
that the Trial Chamber did not adequately consider the length of
time between the closing arguments of the case and the issuance
of the Trial Judgment, a period of almost three years. According
to Mugiraneza, this delay was directly attributable to the fact
that some of the judges were staffed on multiple cases at the
same time and that the United Nations’ completion strategy for
the ICTR had affected staff retention, thereby slowing the work
of the Tribunal. Additionally, similar to Mugenzi, Mugiraneza
argued that the complexity of the case was due to the volume of
evidence, much of which was irrelevant to his individual case.
He also claimed that his twelve-year incarceration amounted to
prejudice and a violation of his right to pre-trial release.
In addition to their contention that the undue delay violated
their right to a fair trial, both Mugenzi and Mugiraneza argued
that the Prosecution violated Rule 68 of the ICTR’s Rules of
Procedure and Evidence, which provides that the Prosecution
“shall, as soon as practicable, disclose to the Defense any material, which, in the actual knowledge of the Prosecutor, may
suggest the innocence or mitigate the guilt of the accused or
affect the credibility of Prosecution evidence.” In response, the
Appeals Chamber agreed that the Prosecution had violated its
disclosure obligations by failing to disclose exculpatory material
that emerged in other cases being tried before the ICTR during
the time that the case against Mugenzi and Mugiraneza was
ongoing. However, the Chamber did not find that these failures
materially impacted the ability of Mugenzi and Mugiraneza
to prepare their defense. Thus, although the Appeals Chamber
reminded the Prosecution of the fundamental importance of its
continuous obligation to disclose under Rule 68, it dismissed the
Defense’s claim that the disclosure violation violated the right of
the accused to a fair trial.
After addressing the appellants’ fair trial challenges, the
Appeals Chamber turned to their challenges against their
convictions, beginning with the convictions for conspiracy to
commit genocide. The Trial Chamber found both men guilty
of this charge based on their roles in the removal of JeanBaptiste Habyalimana, a Tutsi, from his role as the prefect of
Butare Prefecture on April 17, 1994. At the time, Mugenzi
served as the Minister of Trade and Industry in the Interim
In its consideration of the arguments of Mugenzi and
Mugiraneza, the Appeals Chamber began by reiterating that
the ICTR Statute guarantees the right to be tried without undue
delay in Article 20(4)(c). It also recalled that claims of undue
delay have always been decided on a case-by-case basis. In order
to assess the particular arguments made by the appellants here,
the Appeals Chamber assessed: (1) the length of the delay, (2)
47
Government and Mugiraneza served as the Minister of Civil
Service. According to the Trial Chamber, both accused, acting in
concert with other members of the Interim Government, made
the decision to remove Habyalimana from his post with the
intention to “undercut the real and symbolic resistance the Tutsi
prefect posed to the targeted killing of Tutsi civilians inhabiting
Butare.” The Chamber also considered evidence suggesting that
Habyalimana had effectively obstructed the killing of Tutsis
in Butare Prefecture and that, after his removal, these killings
“rapidly increased and became more widespread.” On this evidence, the Trial Chamber found that Mugenzi and Mugiraneza
possessed genocidal intent when making the decision to dismiss
Habyalimana and thus convicted them of conspiracy to commit
genocide.
Finally, the Appeals Chamber addressed the appellants’ challenges to their conviction for direct and public incitement to
genocide, which was based on their participation in a ceremony
to install Sylvain Nsabimana as the new prefect of the Butare
Prefecture on April 19, 1994. During this ceremony, Interim
President Théodore Sindikubwabo delivered a speech calling for
the killing of Tutsis, which the Trial Chamber determined was
made for the purpose of inciting genocide. The Trial Chamber
then determined that Mugenzi and Mugiraneza “possessed the
same genocidal intent held by Sindikubwabo,” relying in part
on the fact that they participated in the decision to remove
Habyalimana as prefect two days before and that they attended
the ceremony installing Nsabimana. The Trial Chamber also
cited to evidence suggesting that they knew of the content of
Sindikubwabo’s speech before it was delivered. On appeal,
Mugenzi and Mugiraneza challenged the Trial Chamber’s finding that they acted with the requisite mens rea. Once again, the
Appeals Chamber agreed, finding that the Trial Chamber erred
in “concluding that the only reasonable inference that could
be drawn from the evidence on the record is that Mugenzi and
Mugiraneza knew that Sindikubwabo’s speech at the ceremony
would be aimed at sparking the killing of Tutsis and that, therefore, their presence at the ceremony demonstrates their shared
genocidal intent.” In support of this conclusion, the Appeals
Chamber stressed that there was no direct evidence that Mugenzi
and Mugiraneza met with Sindikubwabo immediately prior to
the ceremony, nor was there any other direct evidence of “preplanning.” Accordingly, the Appeals Chamber reversed the Trial
Chamber’s convictions. Based on its decisions overturning the
convictions of Mugenzi and Mugiraneza in their entirety, the
Appeals Chamber ordered the immediate release of both men.
On appeal, Mugenzi and Mugiraneza argued, inter alia, that
the Trial Chamber erred by “failing to properly consider other
relevant circumstantial evidence that demonstrated the absence
of genocidal purpose in Habyalimana’s removal.” The Appeals
Chamber agreed, reiterating that, where a conviction for genocide is based on circumstantial evidence, guilt must be the only
reasonable inference available from the evidence. Here, the
Trial Chamber had been presented not only with the evidence
it cited in support of its finding of genocidal intent, but also
with evidence that Habyalimana was removed from his post for
“administrative reasons” and/or on the basis of his purported ties
to the Rwandan Patriotic Front, which was fighting the Interim
Government at the time of his removal. While the Trial Chamber
acknowledged these alternative explanations and dismissed
them, a majority of the Appeals Chamber found that these explanations presented additional reasonable conclusions that could
be drawn from the evidence. Thus, the Appeals Chamber, with
Judge Liu dissenting, overturned the Trial Chamber’s convictions. Judge Liu wrote a dissenting opinion expressing his view
that that Trial Chamber “carefully considered and reasonably
rejected the alternative explanations advanced by the Defense
for the reasons behind the decision to dismiss Habyalimana from
his post,” disagreeing with the Appeal Chamber’s majority’s
decision overturning the conspiracy convictions.
Written by Megan Race, a first-year law student at American
University Washington College of Law, and edited by Katherine
Cleary Thompson, Assistant Director of the War Crimes Research
Office.
48
REGIONS
Americas
assassination attempts. A 2013 Rights Action report, which
documented over ninety killings in the Bajo Aguán Valley since
2009, highlighted the close cooperation between state security
forces and private security companies employed by Dinant and
the relative impunity these groups enjoy when protecting large
businesses in the region.
World Bank Funding Fuels Instability and Human
Rights Abuses in Honduras
In January 2014, the World Bank’s Compliance Advisor
Ombudsman (CAO) released a report criticizing the International
Finance Corporation’s (IFC) loan agreement with a Honduran
corporation implicated in human rights violations in the country’s Bajo Aguán Valley. The CAO found that the IFC — the
World Bank’s private investment arm — ignored its own policies
and procedures when it entered into a $30 million agreement
with Corporación Dinant (Dinant), a large Honduran agribusiness focusing on African palm oil production. Most notably, the
IFC failed to address the ongoing conflict between Dinant and
local indigenous groups over land disputes in the Bajo Aguán
Valley. This conflict, which began in the early 1990s, has intensified in the last five years after the 2009 coup d’état halted land
reform efforts by former President Zelaya. Honduran non-governmental organizations report that over one hundred indigenous
activists and campesino movement members were killed in the
region since 2010. Forty of these deaths are linked to Dinant
security guards and private security companies.
Despite the historical land conflict in the Bajo Aguán Valley
and the documented violence perpetuated by Dinant, the IFC
entered into a $30 million loan agreement with Dinant and
proceeded with the first $15 million installment of the loan in
2009. The CAO’s report found that the IFC did not follow its
environmental and social assessment policies, and likely ignored
the allegations and evidence implicating Dinant in violence in
the region. Moreover, the report determined that the “communities living most proximate to Dinant’s properties” were never
consulted during the IFC’s pre-loan assessment, calling into
question the World Bank’s compliance with customary international law pertaining to indigenous land rights. Both the United
Nations Declaration on the Rights of Indigenous People and the
International Labor Organization Indigenous and Tribal Peoples
Convention provide strong evidence of the existence of the international custom against the removal of indigenous peoples from
their lands without free and informed consent. While the IFC
has suspended additional payments to Dinant pending internal
review of the corporation’s community engagement and security
practices, the IFC’s loan agreement and business relationship
with Dinant raise concerns with the enforcement of the World
Bank’s own policies and compliance with customary international law protecting indigenous peoples.
The ongoing land conflicts in the Bajo Aguán Valley began
in 1992 when Honduras passed agrarian reform measures that
removed restrictions on reselling land previously acquired by
indigenous farmers. Dinant, through its owner Miguel Facussé,
acquired vast tracts of African palm plantations using fraud,
force, and intimidation. In 1998, twenty-eight indigenous cooperatives, whose lands were taken by Dinant, organized and initiated civil actions to nullify transfers of their property. These civil
suits failed, as the indigenous cooperatives had difficulty maintaining the suits and finding legal representation. Instead, the
indigenous cooperatives, through two main campesino groups
— the Unified Campesino Movement of the Aguán (MUCA)
and the Campesino Movement of the Aguán (MCA) — petitioned the Honduran government to allow them to buy back their
land based on the 1992 agrarian reform laws. Under the agrarian reform laws, limits were placed on the amount of land one
person could own in a particular region. Miguel Facussé, after
acquiring large amounts of land in the Bajo Aguán Valley, owned
more than the statutory limit, allowing the campesino groups to
petition to buy back their land. Although these petitions brought
the campesino groups marginal success in retrieving some of
their property, they did not lead to real stability due to a lack of
implementation, as land was frequently retaken or the government failed to enforce the petitions’ verdicts.
Favorable Court Ruling Sheds Light on Situation of
LGBT Youth in Jamaica
On March 7, 2014, a New Kingston, Jamaica court handed
down an unusual two-part ruling in a case involving a group
of lesbian, gay, bisexual, and transgender (LGBT) youth. The
judge convicted the LGBT youth of breaking the country’s “bad
word” law after the group used profanity toward police during
their arrest, and, in addition, declared the city’s sewers a “public
space,” an important ruling for the youth as they were living in
the city’s sewers at the time of their arrest. While these two rulings may seem unrelated, in reality, they are closely connected
as both highlight the difficulties LGBT youth face in Jamaica.
This case emerged from the not so unique situation in New
Kingston where groups of LGBT youth have been found living
in the city’s sewer system. In a culture that is highly homophobic and unsupportive of LGBT persons, Jamaica’s LGBT youth
are frequently expelled by their families and left homeless.
According to Dwayne’s House, a Jamaican NGO that assists
homeless LGBT youth, there have been cases of LGBT youth
as young twelve and thirteen years old kicked out of their families. Homeless LGBT youth typically live in various locations,
including safe houses established by friendly NGOs, private
The land conflicts took a violent turn in 2009 when state
security forces and private security companies employed by
Dinant began to respond aggressively to nearly all of the organized indigenous cooperatives and groups attempting to reclaim
their land. Since then, protests by indigenous activists and local
campesino groups have frequently been met with violence and
49
properties, and abandoned homes; however, police recently have
been evicting homeless LGBT youth from these locations with
more frequency. The increasing number of evictions has forced
homeless LGBT youth to seek shelter wherever possible, leading
many in New Kingston to take refuge in the city’s sewer system.
In fact, the ruling by the New Kingston court declaring the city’s
sewer system a “public space” is considered a victory for homeless LGBT youth, as it will allow them to legally continue living
in the sewer system. Adherence to this ruling has been called
into question, though, as police reportedly continue to remove
groups of LGBT youth from the sewers.
steps to prevent future violent attacks and remedy those of the
past. In addition, the government should consider legislation that
protects the LGBT community as a whole from discrimination.
Austin Shangraw, a J.D. candidate at the American University
Washington College of Law, is a staff writer for the Human
Rights Brief.
New President Promises Constitutional Reforms
in Chile
“We need a constitution born in democracy. The one we
have now is illegitimate,” Michelle Bachelet stated before the
December 2013 Chilean presidential election, which she went
on to win with sixty-two percent of the vote. The original version
of Chile’s current constitution was approved in a controversial
1980 election through General Augusto Pinochet’s attempt to
validate his rule. Even after the country’s transition to democracy, Chile’s Congress has remained divided between the same
two coalitions, with reforms largely led by the elite with little
citizen participation. President Bachelet, who served a previous
term as president from 2006 to 2010, will need to address issues
of inclusivity and flexibility in her proposed redrafting of the
country’s constitution to satisfy democratic concerns, as detailed
by Elkins, Ginsburg, and Melton in The Endurance of National
Constitutions.
In addition to finding safe and adequate shelter, homeless LGBT youth in Jamaica face numerous other challenges.
Homeless LGBT youth occasionally resort to criminal activity
to survive by stealing food and other necessities and by working
in prostitution as a means of earning money. These occasional
criminal acts, however, have led many, including politicians
and law enforcement, to label homeless LGBT youth as criminals, thereby perpetuating the stigma against these youth and
providing the government with justifications for any otherwise
questionable actions taken by the police. Homeless LGBT youth
also face constant threats of violence. The Jamaican Forum for
Lesbians, All-Sexuals, and Gays (J-FLAG), a Jamaican proLGBT advocacy group, found that there were 231 reports of
violence and discrimination against LGBT Jamaicans between
2009 and 2012. Furthermore, the Inter-American Commission
on Human Rights, in its 2012 Jamaica country report, found that
there was frequent complicity with police officers and community members in engaging in violence against LGBT Jamaicans.
Article 23 of the American Convention, to which Chile is a
State Party, provides for the right of every citizen to participate
in government either “directly or through freely chosen representatives.” It also guarantees the right to vote in elections
that will reflect “the free expression of the will of the voters.”
Notwithstanding successful reform efforts in 1989 and 2005, the
Pinochet-era constitution denies Chileans participation in the
government and stymies popular reform.
Many of the underlying reasons for Jamaica’s homophobic
culture and backlash against the LGBT population are reinforced
by the fact that Jamaica is one of more than eighty countries that
still criminalizes homosexuality. Jamaica’s Offenses Against the
Person Act, commonly referred to as the “anti-buggery” law,
was passed in 1864 and de facto criminalizes homosexuality,
imposing a possible punishment of ten years imprisonment
along with hard labor. While the Jamaican government argues
that the law does not outlaw being homosexual, but rather only
prohibits certain acts, the true impact of this law is criminalizing
homosexuality.
Several articles of the Constitution of Chile serve as formidable barriers to change, effectively ensuring that those in power
will remain in power. Article 32 Section 6 grants the president
the power to designate members for the Senate. Further, Articles
90 to 94 grant a high degree of autonomy to the military and
police forces, which has led to an over-representation of rightwing groups in Chile’s government. Articles 95 and 96 still provide for direct participation of the armed forces in the political
process, including veto power. Acting as an additional hurdle
to change, Articles 116 to 119 detail the amendment process,
which requires a three-quarters majority of both houses of the
legislature if the president does not approve the amendment.
These significant checks act as roadblocks to even popular
movements for change because they demand unrealistic levels
of support, especially from the privileged political groups which
have disproportionate power in the government.
Jamaica’s failure to adequately address the issues facing
homeless LGBT youth calls into question its compliance with
its human rights commitments under international law. The
Covenant on the Rights of the Child (CRC), which Jamaica
ratified in 1991 without reservation, provides in Article 2 that
States Parties should “respect and ensure” the rights of each
child “without discrimination of any kind.” Moreover, Article
8 of the Convention requires States Parties to “respect the right
of the child to preserve his or her identity.” In addition to the
Convention, Jamaica has also ratified the International Covenant
on Civil and Political Rights (ICCPR), which provides in Article
7 the right to be free from torture or other cruel, inhuman, or
degrading treatment and in Article 9 the right to liberty and
security of persons.
Constitutions create institutions that can channel fleeting
popular movements without completely upending the structure
of government. Institutions, however, tend to resist change.
Gabriel Negretto, a professor at the Centro de Investigacion y
Docencia Economicas in Mexico City, has indicated that institutional power sharing decreases the need for replacement as
opposed to amendment. He notes that change occurs when “the
existing constitution becomes incompatible with the new political conditions, when the constitution does not serve the interests
As a State Party to both the CRC and ICCPR, Jamaica has a
binding obligation to ensure that police respect and ensure the
human rights of LGBT youth. In light of the frequent violence
against LGBT youth, the Jamaican government should take
50
of powerful political actors, or when it fails to work as a governance structure.” In The Endurance of National Constitutions,
the authors identified three elements necessary for longevity of
government: inclusion, flexibility, and specificity. Chile’s new
constitution should look to these elements for guidance. Claudio
Fuentes identified some untouched reforms from 2000, including lowering the supermajority requirement for constitutional
amendment, lifting the prohibition on union leaders running
for office, relaxing the complete restriction on abortion, and
reconsidering the duty of the state to promote the “family” as
the basic social unit.
There were no reported convictions for internal trafficking in
Colombia in 2012, as government efforts largely focused on
international, as opposed to domestic, trafficking.
Article 6 of the American Convention governs slavery, banning “involuntary servitude,” “traffic in women,” and “forced or
compulsory labor.” The illegal nature of human trafficking for
work in the sex tourism industry or forced labor in mines is specifically outlined in Colombia’s Law 985 passed in 2005. This
legislation indicates that the issue in Colombia stems not from a
lack of understanding of the illegality of human trafficking, but
from an inability to counteract the practice.
In addition to systemic barriers, President Bachelet is likely
to face opposition from various groups when the changes are
proposed. Chile has the highest income disparity of the thirtyfour Organization for Economic Cooperation and Development
(OECD) nations, and the country’s economy has been slowing
in recent years. Some would prefer that she tackle those issues
first, and argue that the difficulty of writing and ratifying a new
constitution will likely consume much of her time. Of further
concern, she will have to maintain her political support, which
involves holding together a seven-party coalition. Despite deep
support for writing a new constitution, there is little agreement
on how to go about drafting it, a process that will also need consensus to preserve the desired legitimacy of the new document.
The 2000 UN TIP Protocol on human trafficking seeks to
establish discreet responsibilities of States Parties for addressing the practice and protecting victims. Articles 9 and 10 require
signatories to explore and implement preventive measures and to
coordinate law enforcement efforts to combat trafficking. To this
effect, Law 985 also sets out fines and sentences for conviction
of human trafficking. In Colombia, the enforcement discrepancy
then likely results from an emphasis on local law enforcement
rather than having a single nationwide director.
Victim silence represents a major obstacle to the implementation of effective preventative measures against human trafficking in Colombia. Concern for retaliation from gangs that
exercise effective control over some areas makes reporting infrequent, and the frequency of trafficking in places like the Valle de
Cauca, Risaralda, and Antioquia has created a culture of complacency. Additionally, traffickers target specific “market niches,”
seeking out areas that have a low likelihood of prosecution, a
high number of clients able to pay, and a low cost for transporting victims. These developments have led to sex tourism, with
many victims held in bondage through accumulation of debt.
The push to write a new constitution gives Chile a unique
opportunity to put its dictatorial past firmly behind it. To achieve
the legitimacy President Bachelet hopes will secure the progress
of democratic reform, the new document will have to be broadly
appealing and able to meet the demands of governance. She
will have to reach beyond the group that elected her and appeal
broadly to the Chilean people if her new constitution will survive the test of time.
Some populations are more vulnerable to being trafficked
than others, with people related to criminal actors, people
internally displaced, poor women in rural areas, and members
of indigenous communities particularly likely to fall victim to
trafficking. Most victims remain within the region in which
they were initially trafficked with a majority of detected South
American trafficking victims originating from other South
American countries.
Sex Tourism: Human Trafficking in Colombia
Human traffickers are taking advantage of the increased
safety resulting from the apparent receding of Colombian narcotraffickers to meet the demands of the country’s thriving sex
tourism and mining industries. Sex trafficking and trafficking
for forced labor are the leading causes of human trafficking in
Colombia. According to Women’s Link Worldwide, approximately 70,000 people are trafficked every year. As a result,
“take care of your daughter, or she will be sold” has become a
commonly heard phrase in poor communities. According to a
2012 report by the United Nations Office on Drugs and Crime,
seventy-six percent of worldwide human trafficking involves
women or young girls. In Colombia, and much of the Andes
Region, the proportion of trafficked children is much higher
than in southern countries like Chile and Argentina. Between
2007 and 2010, the percentage of Colombian victims trafficked
as children rose from forty to seventy percent, while children
represented less than twenty percent of human trafficking victims in Chile, Argentina, United States, and Canada during the
same period.
A notable area of Colombian success, however, is the revival
of a trafficking hotline for utilization by victims. Established in
June 2011, approximately 8,000 people had called the hotline
as of December 2011. Further, in recent years, the country has
sought to improve training efforts within the police forces. These
efforts, however, appear not to have substantially reduced the
numbers of human trafficking victims. The problem appears not
to be that Colombia does not intend to resolve the issues, but that
the issues are overwhelming in their scope. Enhancing coordination of the policing agencies that address human trafficking
and focusing more on internal trafficking would further bring
Colombia within its international legal obligations.
Ross Boone, a J.D. candidate at the American University
Rights Brief.
Although Colombia is party to both the American Convention
on Human Rights and the United Nations Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women
and Children (UN TIP Protocol), the Colombian government has
struggled to implement these measures at the domestic level.
51
Asia and Oceania
Dushanbe Mayor Bans Non-Traditional Music
ensure the cultural freedom of its citizens. This duty exists even
if a person’s preferred customs differ from what the government
considers traditional values.
Mahmadsaid Ubaidulloev, mayor of Dushanbe, Tajikistan,
signed a resolution outlawing certain genres of music from the
city’s buses and taxis. In early 2014, Radio Ozodi, Radio Free
Europe’s Tajik service, confirmed that the ban encompasses
any music considered “alien to national and universal values.”
The ban, intended to promote modesty, particularly targets rap
music, although it also includes any music that “glorifies criminality, sexual content and music that propagates non-traditional
Islam.” The resolution specifies that the Interior Ministry and
Ministry of Culture will conduct raids regularly to restrict the
usage of such music in public places. Despite the resolution’s
purported promotion of positive values, it raises concerns about
restrictions on civil liberties and freedoms of expression and
thought.
While the ICESCR’s notions of freedom and self-determination should be taken into consideration before propagating statewide values, studies show that religion may be factored into how
the state makes these decisions. Research by the Pew Forum, a
self-described non-partisan fact tank and subsidiary group of
Pew Charitable Trusts, suggests that religious restrictions are
becoming commonplace in Tajikistan. Noting annual trends,
the Pew Forum found that Tajikistan was among one of five
countries that had a very high increase in government mandated
restrictions on religion between 2011 and 2012. This increase,
paired with growing fears of restrictions on civil liberties, could
implicate greater difficulties for Tajik citizens seeking to express
their ideas or interests through various forms of media, including but not limited to music.
The Tajik government’s efforts to restrict certain kinds of
music are not new in Tajikistan. In 2012, Radio Free Europe
reported that authorities in the southern Khatlon province fined
drivers for listening to loud music, especially in buses and
taxis. Khalton officials alleged that loud music disturbed public
peace and could be dangerous. Though disturbing public peace
and banning specific genres of music are admittedly different,
human rights activists fear that these regulations may be part
of greater restrictions on civil liberties. In 2012, the Global
Network Initiative issued a statement (via Human Rights Watch)
expressing concern over restrictions on the right to freedom of
expression in Tajikistan. Among other groups, writers and journalists have reported similar attempts to limit freethinking and
speech under claims of patriotism and universal values.
Threats to Interfaith Marriage in Myanmar
Burmese President Thein Sein asked Myanmar’s Parliament
in February to consider creating an intermarriage law, which he
says is meant to protect Buddhists. The exact content of the proposal is unclear; however, it includes a polygamy ban, legislation
to “balance the increasing population,” and a law “to give protection and rights for ethnic Buddhists when marrying with other
religions.” The proposals are a result of campaigning by Ashin
Wirathu, a Buddhist monk of the Burmese Anti-Muslim nationalist movement known as the 969 Movement. Wirathu, who was
recently released from jail, has previously asked Buddhists to
boycott Muslim-owned businesses and is frequently accused of
increasing sectarian tensions in the country through hate speech
and violent tactics. The proposal’s origins raise human rights
concerns about restrictions on interfaith marriage and discrimination against Myanmar’s minority Muslim community.
Despite Tajik efforts to shield the public from non-traditional
music, many view this ban as an attack on human rights and
freedoms. Article 19 of the Universal Declaration of Human
Rights (UDHR) details “the right to freedom of opinion and
expression,” including “freedom to hold opinions without
interference to seek, receive and impart information and ideas
through any media and regardless of frontiers.” Articles 2 and
18 of the UDHR further detail rights protecting religious freedoms. Article 18 extends to all people “the right to freedom
of thought, conscience and religion; [and notes that] this right
includes freedom to change his [or her] religion or belief, and
freedom, either alone or in community with others and in public
or private, to manifest his [or her] religion or belief in teaching,
practice, worship and observance.” Though the ban does not
specifically restrict religious freedoms of Tajik citizens, it uses
religious traditions to limit artistic expression, a right explicitly
detailed in Article 19 of the UDHR.
Earlier this year, UN High Commissioner for Human Rights
Navi Pillay urged the Burmese government to investigate the
deaths of at least forty Rohingya Muslims as sectarian violence continues to escalate in Myanmar. The Rohingya Muslim
community has settled in Myanmar’s Rakhine state, which is
predominately populated by Buddhists and borders Bangladesh.
This February, the organization Fortify Rights released a report
suggesting that Burmese government policies of oppression and
persecution, many of which focus on similar topics of marriage
and family planning restrictions, allow further discrimination
against this minority group. Human Rights Watch also released
a report last year alleging crimes against humanity and ethnic
cleansing of Rohingya Muslims in the same region.
The 969 Movement, alongside other Buddhist groups, is
pushing back against the Muslim population, which makes up
five percent of Myanmar’s population, in reaction to a history of
oppression by the former Burmese government. Monks supporting the proposal reportedly fear that Muslims are spreading their
faith by marrying Buddhist women. Though small in numbers,
Myanmar’s Muslim community has faced increasing persecution in recent years, evidenced in 2013 religious riots where
forty-eight people (predominantly Muslims) were killed. In
2013, the United Nations Special Rapporteur on Human Rights
in Myanmar, Tomás Ojea Quintana, deemed the Rohingya
Not only can music be seen as artistic expression, but the
ban also raises concerns related to the role of music as an integral part of cultural life. Article 1 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR) provides
the right for all people to “freely pursue their economic, social
and cultural development.” Though music is not explicitly
mentioned in the body of the ICESCR, General Comment No.
21 details that music is indeed considered a part of culture for
purposes of enforcing the ICESCR. Tajikistan acceded to the
ICESCR in 1999, imposing a duty on the Tajik government to
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Muslims (one of the few Muslim groups in the country) “the
most vulnerable and marginalised group in Myanmar.”
refugees will be sent to Papua New Guinea (PNG) or Nauru
for detention and processing while they await possible settlement in those countries. Boats that are intercepted or rescued
on route to Australia will be towed back to their origin, which
generally means they will travel back through international
waters to Indonesia. The Australian Human Rights Commission
criticized these legislative changes as threatening the safeguards
of the UN Convention and Protocol Relating to the Status of
Refugees (Refugee Convention) and risking arbitrary detention.
The Australia-based Human Rights Law Centre warned that the
changes set an “alarming global precedent.”
While President Thien Sein only publicized support for the
anti-intermarriage proposal last month, Wirathu circulated drafts
of the law in 2013 that included requirements that Buddhist
women obtain parental or guardian consent before marrying
outside the Buddhist faith and having the marriage registered
by local authorities. Under the 2013 draft, marriages performed
without permission would be considered illegal. Additionally, the
draft included a clause requiring men to convert to Buddhism.
Opposition leader and chairperson of the National League for
Democracy, Aung San Suu Kyi, criticized the 2013 proposal as
“a violation of women’s rights and human rights” because of the
proposal’s restrictions of marriage and religious freedom.
The Refugee Convention defines a refugee as any person
who is outside the country of his nationality and fears to return
to it because of a well-founded fear of being persecuted for his
or her race, religion, nationality, or membership of a particular
social or political group. Refugees generally apply for asylum
once they reach a country in which they can settle. In the last
fiscal year, 25,541 people arrived illegally in Australia by boat.
The majority of refugees who enter Australia by boat are eighteen- to thirty-year-old men, more than half from Afghanistan or
Iran. Using Indonesia as a transit point, refugees pay smugglers
to ferry them into Australian territory. The boats are often rickety fishing boats, and nearly 1,500 refugees have drowned in the
passage since late 2001. Since 2007, Australia has implemented
reforms to its asylum and refugee policies, but the new policy
is the most restrictive approach thus far, with Prime Minister
Kevin Rudd promising, “no one who arrives by boat without a
visa will ever be granted permission to settle in Australia.”
The Universal Declaration of Human Rights (UDHR) extends
rights to all peoples, regardless of race, sex, or religion. As a
UDHR signatory, Myanmar has an interest in safeguarding the
rights of their citizens. These rights include UDHR Article 16,
which allows men and women the right to freely marry “without
any limitation due to race, nationality or religion.” Myanmar
also acceded to the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) in 1997. CEDAW’s
Article 16 further safeguards women’s rights to choose their
spouse and marry freely. The Committee on the Elimination of
Discrimination against Woman released a general recommendation on CEDAW Article 16, which suggested that “[n]either traditional, religious or cultural practice nor incompatible domestic
laws and policies can justify violations of the Convention.”
As a signatory to the Refugee Convention, Australia is
obliged to adhere to Article 7(1), which provides that states shall
accord refugees the same treatment as other aliens, and Article
31(1), which requires that “[s]tates shall not impose penalties
on account of their illegal entry or presence.” The Refugee
Convention recognizes that refugees often violate immigration laws when fleeing dangerous situations, and thus, offers
them protection from criminalization or discrimination for their
status as refugees or their mode of arrival into a third country.
Although the new Australian policy does not directly criminalize refugees arriving by boat, it punishes them for violating
immigration laws to seek safety in Australia. The no advantage
principle bars asylum seekers who arrive illegally by boat from
ever applying for asylum or settling in Australia, and the policy
employs potentially punitive measures by forcibly transferring
refugees who arrive by boat to PNG or Nauru for regional processing. Even if they would otherwise qualify for refugee protection under Australian law or the UN Refugee Convention, the no
advantage principle ensures that they never settle in Australia.
The 2008 Burmese Constitution notes the “special position of Buddhism as the faith professed by the great majority
of the citizens of the Union,” but also lists Islam as a religion
recognized by the Republic of the Union of Myanmar. The
Constitution proclaims that “any act which is intended or is
likely to promote feelings of hatred, enmity or discord between
racial or religious communities or sects is contrary to this
Constitution” and subject to punishment. The government has
a duty to ensure the rights of all its citizens. Article 348 of the
Constitution also states “[t]he Union shall not discriminate
[against] any citizen of the Republic of the Union of Myanmar,
based on race, birth, religion, official position, status, culture,
sex and wealth.” Although this proposal is in the early stages
of development, it is critical that the Burmese government take
appropriate steps to address these serious human rights concerns
to avoid further institutionalization of discrimination.
Shereen Kajouee, a J.D. candidate at the American University
Rights Brief.
Transferring refugees to a third country could put refugees
at risk of arbitrary detention in Australian-run detention centers
in PNG. The new policy provides for “discretionary immigration detention” without specific limits on the duration of detention. The United Nations High Commissioner for Refugees
(UNHCR) has stated that the legal framework in PNG suffers
significant challenges, including a lack of capacity and expertise
in processing, and poor physical conditions in detention facilities. For example, the Australian Special Broadcasting Service
reported incidents of rape and torture among inmates at the PNG
Manus Island processing center, and guards at the center have
Reformed Australian Immigration Policy Turns
Refugees Away
On July 19, 2013, the Australian government introduced a
reformed immigration policy designed to discourage refugees
from attempting the dangerous sea voyage from Indonesia to
Australia. Indonesia is a common transit point for refugees from
Asia and the Middle East who hope to settle in Australia. Under
the new policy, only refugees who arrive by boat will be barred
from obtaining a visa and settling in Australia. In addition,
53
said that self-harm and attempted suicide occur on an almost
daily basis.
Rights (ICCPR). The Convention defines torture as “any act
by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as punishing him for an act he has committed or is suspected to have
committed.” The UN High Commissioner for Human Rights
has condemned amputation and stoning as cruel and inhuman
punishments. Even without ratifying CAT or following the international trend regarding death penalty abolition, Brunei is still
obligated under international law not to implement torture or
cruel and inhuman punishment. Brunei is a member of ASEAN
and has adopted the ASEAN Human Rights Declaration, which
prohibits torture, cruel and inhuman punishment in Article 14.
Australia’s new policy punishes refugees who violate its
immigration laws to enter the country, and risks violating international human rights standards against arbitrary and indefinite
detentions. As a State Party to the Refugee Convention, Australia
has an obligation to protect refugees and should recognize that
refugees are vulnerable and often violate immigration laws when
fleeing dangerous situations. By statutorily preventing asylum
seekers arriving by boat from seeking protection, Australia risks
failing to respect and uphold the human rights of refugees.
Although the death penalty has been considered de facto
abolished since the last time Brunei executed prisoners in 1957,
the new Penal Code reintroduces the death penalty and provides
for death by stoning. Amputation as a punishment for theft is
also included in the new Penal Code, which the UN Special
Rapporteur has said is inconsistent with the prohibition against
torture.
Brunei’s Plans for Sharia Law Contradict
Obligations to Prevent Torture
Brunei’s Sharia Penal Code (Penal Code) will enter into
effect in April 2014. However, the International Commission
of Jurists (ICJ) described the Penal Code as a backward step
on January 27, 2014, saying it is inconsistent with Brunei’s
international obligations. The new Penal Code criminalizes
adultery and sodomy, and imposes harsh punishments, including
the death penalty and amputation. Human rights groups, such
as Physicians for Human Rights, the UN Special Rapporteur
on Torture, and regional human rights commission, including
the African Commission on Human and Peoples’ Rights have
described these penalties as torture, cruel, and inhuman punishment, demonstrating the international community’s condemnation of amputation as punishment for crimes.
In an open letter to Prime Minister H.M. Haji Hassanal
Bolkiah, the ICJ questioned how Brunei could implement the
new Penal Code while complying with its legal obligations.
The letter found that the planned punishments in the new Penal
Code qualify as torture or cruel and inhuman punishment under
the internationally accepted definition of such acts. Brunei’s
implementation of the new Penal Code would not only be a step
back for the international movement toward abolishing the death
penalty, but may also result in Brunei violating its obligations to
uphold human rights and prevent torture.
Head of State Sultan Hassanal Bolkiam of Brunei introduced
the new Penal Code in October 2013. Existing Islamic rules in
Brunei are imposed when courts deal with family-related affairs,
such as marriage and inheritance. The Sultan said the new Penal
Code would only apply to Muslims, but certain penalties apply
to both Muslims and non-Muslims. Under the new Penal Code,
Muslims can be stoned to death for adultery, have their limbs
severed for theft, and be flogged for violations ranging from
obtaining an abortion to consuming alcohol. Non-Muslims and
Muslims alike would be subject to the death penalty for robbery,
rape, adultery, and sodomy.
Angela Chen, a J.D. candidate at the American University
Rights Brief.
Europe and Central Asia
Empty Words: Hungary’s Lax Response to Domestic
Violence
On July 1, 2013, Hungary enacted its first legislation specifically criminalizing domestic violence. Prior to July, the official
response to domestic violence was limited to charges of battery
for individual acts of physical abuse with no broader consideration of the abusive relationship; survivors did not have access
to restraining orders until 2009. Criticism of Hungary’s response
to domestic violence has centered on the absence of comprehensive laws, the limited available resources for survivors, and
a culture of victim blaming within the country. This culture was
exemplified during floor debate on the proposed legislation
when József Balogh, a member of parliament for the governing
party, unapologetically admitted to abusing his wife, and István
Varga, also a member of parliament for the governing party, suggested women would not face abuse if they had more children.
According to a November 2013 Human Rights Watch (HRW)
report, however, the new law contains significant gaps, and
Hungary may still be failing to fulfill its obligations to appropriately respond to domestic violence under UN Convention on
the Elimination of All Forms of Discrimination against Women
(CEDAW).
In contrast to Brunei’s harsh new punishments, many in
the international community pushed abolishing physical punishments, including the death penalty, on the basis that they
contradict the universal right to life and can be considered cruel
or inhuman punishments. Similarly, the UN General Assembly
issued a moratorium on executions in 2007, which was reaffirmed in 2008, 2010, and 2013, and the UN Special Rapporteur
on Torture Juan Méndez has said that the death penalty is a
form of torture, not just because the specific methods and circumstances of execution are violations of the UN Convention
against Torture (CAT), but also because of the evolving standard
of when a state should be allowed to deprive a person of life.
The CAT is one of the most widely accepted international conventions, ratified by 154 states, exemplifying the broad international agreement against torture, cruel and inhuman punishment.
The CAT’s definition of torture in Article 1 is widely accepted
by the international community and is applied not only to the
CAT, but also to the Universal Declaration of Human Rights
(UDHR) and the International Covenant on Civil and Political
54
This report is the most recent criticism of Hungary from
human rights groups and international treaty bodies alleging the
country has failed to meet its obligations. In the 2005 case A.T.
v. Hungary, the Committee on the Elimination of Discrimination
Against Women (Committee) found that Hungary violated several of its obligations under CEDAW. The Committee also found
that Hungary failed to promote gender equality through appropriate legislation under Article 2, to eliminate prejudices and
customs grounded in female inferiority by lacking legislation
against domestic violence under Article 5, and to end discrimination against women in marriage and family life under Article
16. Accordingly, the Committee recommended that Hungary
enact legislation criminalizing domestic violence and allowing
victims to receive protection orders.
shelters operating in Hungary receive no government funding, a
situation that the Hungarian Association of Women Judges finds
does not meet the existing need. While the new law criminalizing domestic violence is an important step, without broadening its scope, effecting a more concerted effort to effectively
respond to survivors’ needs, and changing the victim blaming
pervading Hungarian society, the government may continue to
fall short of its obligations.
Ceuta and Melilla: Europe’s Razor Wire Door
Thousands of migrants and asylum seekers use the Spanish
exclaves of Ceuta and Melilla in North Africa as gateways into
Europe, prompting Spain to attempt to stem the flow of irregular
migration. The Spanish government has increased the number
of barriers along the border, authorized the use of rubber bullets by the border patrol, and is seeking an agreement with
Morocco to authorize summary returns, without due process,
of irregular migrants. Human rights groups and the European
Union (EU) have been critical of some of Spain’s actions following an incident on February 6, 2014, in which fifteen migrants
drowned during an attempted swim to Ceuta. The twenty-three
who made it to shore were summarily deported. Rights groups
argue that summary returns of the migrants, many of whom
may be refugees, are violative of Spain’s obligations under the
European Union directive on common standards and procedures
for returning illegally staying third-country nationals and the
principle of non-refoulement, especially in light of the harsh
treatment migrants receive in Morocco. Additionally, these
groups are concerned that the use of rubber bullets may have
contributed to the deaths on February 6.
Hungary has been slow to adopt laws that comply with the
Committee’s recommendations. In 2009, Hungary enacted a law
to provide temporary restraining orders to domestic violence victims, but critics of the law argue it is insufficient. The restraining order law provides that police can issue a seventy-two hour
restraining order against the aggressor in domestic disputes, giving individuals thirty days to apply for restraining orders against
violent family members. However, these restraining orders are
not renewable, and a victim may only file for a new restraining order after another, separate, violent incident. Additionally,
former common law spouses and couples who do not cohabitate
and have no children together cannot petition for a restraining
order. A 2010 report by NANE Women’s Rights Organization
found that a lack of training for law enforcement resulted in gaps
in the enforcement of the legislation, “frustrat[ing] the act in
fulfilling its already limited goals.” Further, the law did not alter
the criminal code to recognize domestic violence as a specific
criminal offense.
Migrants from sub-Saharan Africa head to Europe for secure
work and an escape from unrest in their home countries. The
number of migrants entering Spanish territory irregularly surged
in 2013 to over 4,300. An estimated 80,000 people have set up
camps in Morocco near the border, and large groups routinely
attempt to scale the barbed wire fences into Spanish territory.
Migrants who cross the border are taken to detention facilities
where they await either a grant of asylum or a deportation order.
However, because Spain does not have extradition agreements
with many African countries, deportation is often impossible.
The November HRW report alleges that Hungary’s response
to domestic violence is lacking even after the introduction of
the provision criminalizing domestic violence into the criminal
code. The new law requires prosecutors to initiate criminal
actions against abusers and provides stiffer penalties for domestic assaults. However, HRW feels that the law falls short by
requiring at least two separate instances of domestic violence to
trigger prosecution and by requiring that the victim cohabitate
or have children with the abusive partner. Additionally, HRW
is critical of the government’s decision not to include sexual
violence as an offense under this law because rape is already
criminalized. These requirements significantly narrow the range
of victims eligible for protection and neglect varying degrees of
potential violence, according to activists. Critics further allege
that the new law does not amend the gaps in the 2009 protection order statute, nor has law enforcement received adequate
training.
Under international law, states are bound by the principle of
non-refoulement. Article 33 of the UN Convention Relating to
the Status of Refugees, the 1967 Optional Protocol, and Article
3 of the Convention Against Torture, which Spain has acceded
to and ratified, prohibit the return of refugees to countries where
they would face persecution or torture and require due process
for claims of refugee status and asylum. Spain is also bound
by the EU Charter of Fundamental Rights, which recognizes
the right to asylum, as well as the EU returns directive, which
establishes procedural requirements and safeguards for the
return of undocumented migrants. In addition, Spain’s domestic
immigration law prohibits summary return without due process
and guarantees migrants in deportation proceedings both legal
counsel and an interpreter.
Activists and survivors of domestic violence allege that
survivors frequently encounter hostility or indifference from
support institutions. The HRW report found police routinely
refuse to use their authority to issue restraining orders. Courts
are similarly hesitant to issue protection orders, often imposing
high evidence standards and issuing orders for only short periods of time. Outside the legal system, doctors and social workers provide little advice and information to survivors. Although
the government established a 24/7 hotline for victims, the few
In a recent report, Human Rights Watch found evidence of
widespread ill treatment of migrants in Morocco and argued that
returning them would violate Spain’s non-refoulement obligations. The report found Moroccan police often beat migrants,
55
including children, who are returned to Moroccan custody.
While Spain has denied the use of summary returns, human
rights groups have documented numerous incidents of deportations without due process. According to Human Rights Watch,
video footage taken on February 6, 2014, appears to show survivors on the beach being escorted back to Morocco by Spanish
authorities. Amnesty International argues that the survivors were
under Spain’s jurisdiction and were therefore entitled to the protections guaranteed under international and Spanish law. Human
rights groups and the EU also criticized the border control’s use
of rubber bullets against migrants, and called for an investigation to determine whether its actions contributed to the drownings on February 6.
security. By indefinitely detaining individuals without charge
or trial, Israel is undermining the right to a prompt, free, and
fair trial as enshrined in the International Covenant on Civil
and Political Rights (ICCPR), and is not protecting individuals
from cruel, inhuman and degrading treatment or punishment
(ill-treatment) as outlined in the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) and the ICCPR.
Administrative detention consists of arresting and detaining
an individual without charge or trial, often for security reasons.
According to Amnesty International, Israel has used administrative detention to punish individuals for their political views
and affiliations, including detention of Palestinian politicians,
journalists, students, prisoners of conscience, and human rights
defenders.
The Spanish government argues that making entry more difficult and return more efficient are necessary to combat terrorism
and ease the strain migrants place on the country’s resources. In
response to allegations that people were summarily returned on
February 6, the Spanish Interior Minister, Jorge Fernández Díaz,
admitted that individuals who made it to the beach were handed
over to Morocco, but argued they had not entered Spanish territory because they did not pass through a line of riot police.
Additionally, Deputy Interior Minister Francisco Martínez
admitted that rubber bullets and tear gas were fired in the water
near people swimming towards Ceuta, but initially claimed they
did not contribute to the deaths. However, on March 10, 2014,
Diaz admitted the use of rubber bullets was a mistake. Spain’s
ruling party nevertheless blocked a motion to start an investigation into the incident. Without a proper investigation into the
deaths, and without ending summary expulsions, Spain’s actions
may not accord with its human rights obligations.
A military order and two laws primarily enable Israeli
authorities to use administrative detention: Military Order 1651
(1651), The Emergency Powers Detention Law (Detention Law),
and the Internment of Unlawful Combatants Law (Internment
Law). Order 1651 applies to the West Bank, including to Israeli
citizens living in the West Bank; however, in practice, 1651 is
used primarily to detain Palestinians. A military commander
may issue an order if there are “reasonable grounds” that an
individual is a risk to “public security” or “the security of the
area.” Although a detainee must be brought before a military
judge within eight days under 1651, the closed court session is
effectively only a routine confirmation of the order, rather than
an actual hearing. Detainees spend months and even years in
prison without charge or trial and any information justifying the
order is withheld from both the detainee and his or her attorney.
Detainees are able to appeal their orders to the Supreme Court
of Israel; however, most appeals are not completed because each
appeal must be resolved within six months as each extension of
an order is considered a new order, requiring a new appeal.
Jason Cowin, a J.D. candidate at American University
Rights Brief.
Middle East and North Africa
The Detention Law and the Internment Law share many
similarities with 1651. The main distinction is jurisdictional;
the Detention Law applies to Israel proper while Israel uses the
Internment Law to detain Palestinians from the Gaza Strip.
A State of Emergency: Israel’s Use of
Administrative Detention to Indefinitely Detain
Palestinians
Israel is a State Party to both the ICCPR and the CAT. Article
9 of the ICCPR protects individuals from arbitrary arrest or
detention and guarantees the right to be informed of charges at
the time of arrest. Additionally, Article 14 ensures an individual’s right to be promptly informed, in a language that the accused
understands, of any charges and entitles everyone “to a fair and
public hearing.” Since 1948, Israel has been in a declared state
of emergency and has used this declaration as a justification
for suspending detainees’ rights to due process as outlined in
the ICCPR. Article 4 of the ICCPR allows a government to
derogate from certain obligations in a time of “public emergency
which threatens the life of the nation” provided that the measure
is strictly required, does not discriminate against a particular
group, and does not conflict with other obligations under international law. Article 4, however, is not meant to allow States
to perpetually suspend rights. The Human Rights Committee
has noted that “States parties may in no circumstances invoke
[A]rticle 4 of the [ICCPR] as justification for acting in violation
of humanitarian law or peremptory norms of international law.”
Thus, Israel’s practice of detaining individuals without charge
The Israeli government detains hundreds of individuals,
primarily Palestinians from the Occupied Territories, for months
and even years with renewable administrative detention orders. At the end of
2013, 150 Palestinians were
being held under administrative detention in facilities run by the Israel Prison
Services. With administrative detention orders,
an individual may be held
without charge for a period
of six months with the possibility of indefinite renewal.
Detainees are not given any
information regarding their
charges based on the premise of maintaining national Illustration by Eamonn Donnelly
56
and holding closed court sessions contravenes the protections
of the ICCPR.
extensive and include, “beatings with metal cables, whips and
wooden and metal batons; electric shocks, including to the genitals; the ripping out of fingernails and toenails; sexual violence,
including rape or threats of rape; mock executions; cigarette
burns; sleep deprivation; solitary confinement; and exposure to
the torture of relatives.” The government uses ill-treatment to
extract confessions from children or humiliate them into pressuring their relatives to confess or surrender. Outside of detention centers, the UN received reports regarding allegations of
sexual violence against women and girls by government forces,
including gang rape in the presence of relatives at checkpoints
and while searching houses of families perceived to support
opposition groups. The UN received allegations of armed opposition groups also using sexual violence, however, investigation
is hampered because of lack of access to many areas in Syria.
Abducting children in exchange for ransom, to release prisoners,
or to pressure relatives supporting the opposing side has increasingly been a tactic used by both government forces and armed
opposition groups.
The use of administrative detention to arbitrarily detain individuals repeatedly and for prolonged periods can amount to prohibited ill-treatment. Under the CAT, Israel has a legal obligation
to prohibit all forms of ill-treatment. In 2001, the Committee
against Torture concluded that Israel’s use of administrative
detention fails to conform with the prohibition on ill-treatment,
as provided under Article 16 of the CAT. Further, Article 4 of the
ICCPR prohibits derogation from certain rights, including the
prohibition against ill-treatment. Therefore, Israel may not use a
state of emergency as justification for the resulting ill-treatment
in administration detention.
As outlined in the ICCPR and the CAT, Israel is legally
obligated to recognize the rights of individuals under its protection, including Palestinians in the Occupied Territories. Israel’s
process of indefinitely renewing administrative detention orders
without charge or trial undermines the right to due process and
the absolute prohibition against ill-treatment of detainees.
The CRC protects a child’s fundamental rights and freedoms.
The CRC defines a child as any individual under eighteen years
old. States Parties to the CRC must protect children from sexual
exploitation, ill-treatment, arbitrary detention, and participation in direct hostilities. Articles 12–15 protect a child’s right
to freedom of expression, thought, association, and peaceful
assembly. Therefore, the actions of the fifteen children in Dar’a
who painted anti-government slogans were protected by international law, which the government was obligated to enforce.
Article 34 obligates states to protect children from all forms
of sexual exploitation and abuse, which the practice of sexual
violence and rape by both government forces and armed opposition groups violates. Article 37 requires States Parties to protect
children from ill-treatment, arbitrary arrest, and detention, and
specifically requires that detained children remain separated
from adults. Article 2 obligates states to protect children from
punishment based on their relatives or guardians’ activities and
opinions. Therefore, the practice of detaining children in units
with adults, egregious ill-treatment, and punishing children for
their relatives’ perceived or actual support of opposition groups
is contrary to international law. In times of conflict, Article 38
requires that states ensure children under “fifteen years do not
take a direct part in hostilities[;]” thus, recruiting children under
fifteen for combat and support roles, as well as using children as
human shields or to pressure relatives to surrender, is contrary
to international law.
Children Face Atrocities Amidst the
Syrian Conflict
As the Syrian conflict enters its third year, the United
Nations (UN) estimates that 100,000 people are dead, including
an estimated 10,000 children. Children have been at the center of
the conflict since the beginning; in 2011, the Syrian government
arrested fifteen children for painting anti-government slogans
on the walls of a school in Dar’a. After unsuccessful attempts
to negotiate their release and allegations that the children were
being tortured while in police custody, community members
began protesting the arrests of the children. In response, security
forces opened fire, killing at least four protesters, deaths which
activists consider the first casualties of the Syrian uprising.
Following the Syrian government’s violent suppression in Dar’a,
demonstrations spread throughout the region and remain ongoing today. The Convention on the Rights of the Child (CRC)
obligates the Syrian Arab Republic, a State Party, to protect a
child’s right to life and to ensure that children are not subjected
to arbitrary detention or torture and other cruel, inhuman or
degrading treatment or punishment (ill-treatment), and are protected from participation in direct hostilities.
Despite this obligation, the UN reported that government
forces and associated militias arbitrarily detained, arrested,
abducted, raped, and tortured children. Similarly, armed opposition groups recruited children for combat and support roles, as
well as abducted, raped, and summarily executed children. The
UN noted that although the report attributed many incidents of
killing and injuring children to government forces during the
first two years of the conflict, armed opposition groups increasingly have engaged in such conduct largely due to “increased
access to heavy weapons and the use of terror tactics.”
As outlined under international law, the Syrian government
has a responsibility to protect the children in Syria from prohibited ill-treatment, sexual violence and exploitation, arbitrary
arrest and detention, and participation in direct hostilities. As
causalities continue to climb, the government and armed opposition groups must recognize and protect the fundamental rights
and freedoms of Syrian children or face possible criminal prosecution in domestic or international courts.
The government arrests children not only for their own
perceived or actual participation in opposition groups, but also
for their relatives’ perceived or actual participation. Children
apprehended by both sides in the conflict are often held in the
same cells as adults, contrary to international standards for juvenile detention. Reports of ill-treatment while in detention are
Whitney-Ann Mulhauser, a J.D. candidate at the American
University Washington College of Law, is a staff writer for the
Human Rights Brief.
57
Concerns Over the Human Rights Situation in
Conflict Zones of Iraq
people of Iraq from arbitrary deprivation of life, including loss
of life caused by internal security forces.
On January 3, 2014, the Islamic State of Iraq and Syria
(ISIS), a principal stakeholder of jihadist sentiment in the
region, declared an Islamic state in Anbar Province, exactly 747
days following the departure of the last Coalition troops from the
country. Iraq continues to experience civil unrest since the final
withdrawal of U.S. troops from the country in 2011. In addition,
the boiling over of violence in Anbar, a noted sectarian and volatile region, and the fall of its large cities Fallujah and Ramindi
raise concerns that, similar to neighboring Syria, Iraq is being
driven to greater instability. Human rights practitioners have
alleged that the Iraqi government and armed insurgent groups
are committing human rights abuses throughout the country, and
that Iraqi Prime Minister Nouri Al-Maliki may be ill-equipped
or even ill-inclined to fulfill his government’s human rights
obligations. In particular, the Iraqi government’s treatment of
detainees and its poor protection of civilians in combat zones are
causes for concern. Iraq is a party to the International Covenant
on Civil and Political Rights (ICCPR), which bars the government from unlawful and arbitrary arrest and detention as well as
arbitrary deprivation of life.
The Iraqi government is fighting a serious insurgency, one
that is spreading to provinces outside Anbar. Article 4 of the
ICCPR does allow for emergency derogation from some of the
Covenant’s obligations in times “of public emergency which
threaten[] the life of the nation,” however this special license
comes with a precept that no circumstance allows for the arbitrary deprivation of life or unlawful arrest. While some of the
Iraqi government’s arrests of alleged insurgents may be permissible under this exception, it is likely that many of the government’s armed efforts to terminate the insurgencies throughout
the country are not in line with the ICCPR. By deploying
capricious tactics to arrest, detain, and suppress the country’s
insurgents, the Iraqi government is not upholding its obligations
under international law.
A stable Iraq has been a long and burdensome project largely
shouldered by Iraqi civilians. With 300,000 civilians now displaced due to the violence in Anbar there is a plain need for all
parties in Iraq’s varied and dangerous rivalries to behave lawfully. For their part, the Iraqi government should look toward
the ICCPR and bring its methods of detention and its treatment
of civilians in conflict-ridden areas into line with international
legal standards.
Following the removal of U.S. troops and eight years of
military conflict, many hoped that Iraq would move, however
gradually, toward stability. There is strong evidence suggesting that this is not the case. According to the Iraq Body Count
Project, violence in Iraq continues to increase. Violence was on
a downward trend after the balance of American troops left the
country but leapt in 2012, the first year since 2009 where the
death toll has increased. Data from 2012 reports the number of
Iraqi civilians killed by violence as 4,584, up from the record
low set in 2010. Preliminary figures from 2013 paint an even
bleaker picture for the country, placing the death toll at nearly
9,500 civilians.
The Need for Action on Violence Toward Women in
Somalia
“Were you raped today?” Human Rights Watch reports
this furtive question is now a common greeting in the streets
of Mogadishu, Somalia. This mournful question draws much
needed attention to the ugly proliferation of rape and sexual
violence in the country. Somalia, a country whose name is
nearly synonymous with chronic instability, is still embroiled
in a 23-year-long civil war. As the country enters an intense
period of reconstruction, with the 2012 inauguration of the first
permanent, federal government since the start of the conflict,
several humanitarian crises remain to be contended with. While
any progress is welcomed as a step in the direction of long-term
stability, Somalia remains, as it has for the past six years, the
world’s clearest example of a failed state. The absence of stability and an enfeebled national government engenders a landscape
where widespread sexual violence goes largely unchecked and
unpunished. These rampant sexual attacks are a preeminent
point of concern for human rights practitioners. As a State
Party to the International Covenant on Civil and Political Rights
(ICCPR) and the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT),
the Somali government is obligated to protect its citizens from
sexual violence. Moreover, as a signatory to the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (Maputo Protocol), Somalia has indicated its
commitment to eliminating sexual violence.
Between 2012 and 2013, clashes between Iraqi government
forces and Islamist insurgents were the principal cause for the
sharp uptick in violence. The sectarian fighting between the
Iraqi government and anti-government forces captured thousands of civilians in the crossfire in 2012. In 2012 alone, Iraqis
suffered 967 mass shootings involving civilians, killing 1,619
people. That same year, 966 bombings occurred throughout the
country, claiming 2,819 lives and leaving 7,554 injured. With the
mounting violence in the country and ISIS’s seizure of the Anbar
Province, activists fear that government forces are indiscriminately firing on civilian areas in an effort to oust the insurgents
and regain control of the region.
Both Human Rights Watch and Amnesty International report
that, in response to the increasing sectarian violence, the Iraqi
government is employing draconian methods to apprehend
and detain anti-government suspects. Articles 9 and 15 of the
ICCPR guarantee freedom from arbitrary arrest or detention,
while additionally requiring that following an arrest, a person
is informed of the reason for the apprehension and any charges
pending against them. With the prohibitions against wrongful
detention, Article 14 of the ICCPR requires that the government
provide the minimal principles of due process to those suspected
of a crime. Most importantly, Article 6 of the ICCPR protects the
Few places in the world are in greater need of stability than
Somalia. Since the start of the country’s civil war in 1991,
Somalia remains the bellwether for continued and protracted
political violence as well as societal breakdown. There is hope,
however, that with the establishment of a new permanent government, Somalia can start rebuilding and addressing the sexual
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Sub-Saharan Africa
violence plaguing the country. The UN reported that in 2012
there were at least 1,700 cases of rape in the Internally Displaced
Persons (IDP) camps throughout Somalia. Moreover, a staggering seventy percent of the perpetrators of these heinous crimes
wore government uniforms and one-third of survivors were
under the age of eighteen. Distressfully, this pattern continued
in 2013. The UN Office for the Coordination of Humanitarian
Affairs reports that in the first half of the year, there were 800
incidents of rape in the capital Mogadishu alone. Adding to the
dire situation is the level of sexual violence exacted on the youth
of Somalia. In 2013, the UN Children’s Fund (UNICEF) and its
partners provided aid to 2,200 victims of sexual violence under
the age of eighteen.
The Responsibility to Protect against the Seeds of
Genocide to Protect against the Republic
Violence in the Central African Republic (CAR) drastically
increased in March 2013 when the Seleka ousted President
François Bozizé and installed Michel Djotodia. When Djotodia
subsequently resigned in the wake of fresh violence, the CAR
was left without a ruling leader. Throughout the political turmoil, civilians have reported instances of violence and of retaliatory violence leading John Ging, the United Nations operations
director for the Office for the Coordination of Humanitarian
Affairs, to state that he was “very concerned that the seeds of
genocide are being sown.”
Stories of women and girls being dragged from their tents,
beaten, and gang-raped by security forces or armed militiamen
are a common narrative in the IDP camps. A 2014 report by
Human Rights Watch highlighted that these crimes go largely
unreported or unpunished. Amnesty International concluded that
investigations, prosecutions, and convictions for sex crimes are
highly uncommon in Somalia, with some women suffering reprisals for coming forward to the authorities. These police practices
compound the stigma that victims face when reporting a crime
of sexual violence. Amnesty International also points toward the
insensitive and intrusive nature of police questioning as well as
the general unwillingness of police to investigate these types of
crimes as a major humanitarian hurdle that the Somali government must surmount.
On March 6, 2014, the UN High Commissioner for Refugees
Antonio Guterres, indicated that the western part of CAR was
ethnically cleansed of Muslims after a mass grave with at
least a dozen decomposing bodies was discovered in Bangui,
a town occupied by the Seleka rebels. Amnesty International
also reported that armed Christian groups mutilated a number
of Muslim corpses in Bangui. In the aftermath, Commissioner
Guterres declared that “[w]e are witnessing a humanitarian
catastrophe . . . . There is an ethnic-religious cleansing taking
place.” Some experts have called for both sides to withdraw
and initiate peace talks. Others have requested military support,
which has resulted in various troop deployments — over 2,000
committed by France, and over 6,000 committed by the UN.
Although the use of force may be authorized, several non-violent
mechanisms remain available that would fulfill the government’s
responsibility. The CAR was present and represented at the
Summit by then President Bozize, signaling agreement.
As a party to the ICCPR and the CAT, the Somali government is obligated to prevent the types of abhorrent activities that
are proliferating throughout its territory. Article 7 of the ICCPR
places personal security and integrity at the forefront of a state’s
human rights obligations. Specifically, Article 7 prohibits torture
and other cruel, inhumane or degrading treatment, enshrining
a universal protection against unwanted sexual activity. Tied
with the general principle, Articles 2 and 26 prevent the state
from discriminating based on sex through the enforcement of
laws and prosecution of crime. Though Somalia only signed
and has not ratified the Maputo Protocol, its signature indicates
its commitment to promulgating and implementing laws that
criminalize all forms of violence and unwanted sexual contact.
Additionally, Somalia’s signature on the Protocol should help the
country establish effective procedures for punishing perpetrators
of sex and gender-based crimes, while also creating an effective
administrative structure for overseeing and implementing proper
justice for victims.
The UN Security Council has the power to authorize the
deployment of UN peacekeeping operations to conflict zones,
as well as initiate other non-military actions under Chapter
VII of the UN Charter. The Responsibility to Protect (R2P)
was first presented at the Commission on Intervention and
State Sovereignty, and has been supported as an emerging
international norm after its reaffirmation in the 2005 Outcome
Document of the World Summit. At the UN World Summit, all
Member States formally accepted the responsibility to protect
their respective populations from genocide, war crimes, ethnic
cleansing, and crimes against humanity. Furthermore, when any
state fails to meet their responsibility, the international community is responsible for helping to protect people threatened
by such crimes.
International law requires that the Somali government
protect its citizens from this epidemic of sexual violence. The
Somali government can only comply with this universal legal
principle under international law by putting to action laws protecting women and children from sexual violence.
Controversy, however, surrounds the peacekeepers’ use of
disarmament tactics. Disarmament, while falling under the
auspices of Chapter VII, has left some communities vulnerable
to attack by opposing forces. Joanne Mariner, a senior crisis
response adviser at Amnesty International, raised concerns that
antagonistic forces lynch persons who have been disarmed since
they are unable to defend themselves. Disarmament efforts in
CAR have not been able to target all groups, and even when
some disarmament occurs, militia groups have continued to promulgate violence through alternative means. On December 17,
2013, for example, at least nineteen people, including children,
were killed reportedly with machetes while being evacuated in a
truck convoy toward Cameroon. According to report published
James Toliver, a J.D. candidate at the American University
Rights Brief.
59
by Amnesty International, similar disarmament efforts in South
Sudan led to an increase in violence toward civilian populations
who were left unable to defend themselves.
Rights guarantees the right to human dignity, security of the
person, the right to be protected against violence, freedom from
torture, freedom from cruel, inhuman or degrading punishment,
and the right to bodily integrity. Section 7(2) of the Constitution
obliges South Africa to protect and uphold constitutional rights
and respect, protect, promote, and fulfill the protections enumerated in the Bill of Rights. Though such language ostensibly
creates a regime of prisoners’ rights, experts complain that laws
are lagging in application, and raise concerns over the government’s unwillingness to enforce these human rights standards in
privately run prisons.
With the recent history of genocide in Darfur, Rwanda, and
Bosnia, Responsibility to Protect has gained momentum domestically as well as in the international community. President
Obama recently noted that “preventing mass atrocities and
genocide is a core national security interest and a core moral
responsibility of the United States.” Philippe Bolopion, the
Human Rights Watch UN Direcor, recently said, “what remains
is the responsibility to protect . . . terrorized civilians.” Despite
the clear policy incentive to pursue aggressive R2P measures,
however, precise questions regarding R2P implementation loom
over prospective international interventions. With violence continuing to escalate in the CAR, efforts to disarm militia groups
and civilians alike will continue to raise questions of what measures fall under the auspices of R2P, and how such measures may
be justified in light of longstanding evidence that disarmament
may have disastrous effects on communities that are left unable
to defend themselves. Overall, in the calculation of R2P policies,
measures such as disarmament in the CAR must be carefully
deliberated to avoid potentially disastrous consequences.
Under its constitution, South Africa has an obligation to prevent and prosecute crimes committed by their own nationals, as
well as crimes committed in South African territory and against
their own citizens. South Africa has the duty to inquire into acts
committed by the private security firms. Although private actors
are not subject to the jurisdiction of the Convention against
Torture, insofar as they act under official sanction of the state,
they share South Africa’s obligations to abide by the Convention
against Torture. In addition, the state where they are operating must exercise control and oversight, such as establishing a
licensing or regulatory system.
Although South Africa has made efforts to mitigate the
effects of private security firms, Mary Rayner, South Africa
researcher at Amnesty International noted that violence against
inmates and impunity for human rights abuses remains prevalent. In response to criticisms, the South African government
has deployed government teams to replace security firms with
poor reputation for prisoners’ rights, such as G4S, according
to the acting national commissioner of correctional services,
Nontsikelelo Jolingana. Despite these measures, however, the
BBC reported further concerns over the degrading treatment
of prisoners in October 2013, increasing scrutiny of ineffective
reforms and changes. When asked why preventative measures
were not taken earlier, the commissioner could only state that the
situation is being investigated. For now, the abject situation of
prison overcrowding and abuse, accompanied with widespread
impunity, reflects a poignant example of penal systems across
the globe.
Torture in South African Prisons: Government
Accountability and Private Security Firms’
Influence
Widespread rape, torture, and a culture of abuse plague many
South African prisons that are run by both the South African
government and by private security firms. Inmates have been
victims of rape and sexual humiliation by fellow inmates, and
HIV/AIDS has proliferated due to widespread sexual violence
and limited access to health care. The degrading treatment is
exacerbated by overcrowding, with as many as forty inmates to
a single communal cell. Over-crowded prisons strain the sanitation, ventilation and medical care in the prisons, and in turn
worsened health conditions. According to an IRIN report, when
Michal Adams was violently raped by two men while being
detained in Allandale Prison, the facility’s nurses and wardens
ignored his claims, excusing it as, “what happens in prison.”
Following the assault on Adams, prison staff denied psychiatric
consultation. Adams was deprived of HIV testing for two years
and after a subsequent diagnosis, he was also denied antiretroviral. Sexual violence and the spread of HIV is “regrettably common” in South Africa’s prisons, according to Lukas Muntingh,
coordinator of the Civil Society Prison Reform Initiative. A
report from Amnesty International also found that in private
prisons security officers engage in violent tactics. Security officers beat inmates regularly and severely, causing broken limbs
and external bleeding while others are stripped naked, doused in
water, and then electrocuted.
Ada Lecevic, a J.D. candidate at the American University
Rights Brief.
The Continuing Legacy of Slavery in Mauritania
The State Department’s 2013 Trafficking Report has raised
fresh allegations of slavery in Mauritania. Almost twenty percent of Mauritanians are affected by slavery, a practice that
is especially difficult to eliminate due to the state’s history of
religious and ethnic discrimination. The history of slavery in
Mauritania began when the elite white Arab Moors invaded,
enslaved, and assimilated the sedentary black Moors, taking
control of the country’s economy and sectors of the government,
military and police. When the black Moors were freed by the
1905 colonial decree abolishing slavery, they were often referred
to as Haratine, from the Arabic word for “freedom.”
South Africa, having ratified the UN Convention against
Torture, is obliged to prevent and facilitate reconciliation for
victims and survivors. Most recently, President Jacob Zuma
signed the 2013 Prevention and Combating of Torture Act,
intended to give effect to the Republic’s obligations under the
UN Convention against Torture. Additionally, the South African
legislature has taken steps to comply with international human
rights standards. Sections 10 and 12 of South Africa’s Bill of
Although the Mauritanian society perceives black Moors as
“free,” many remain with white Moor masters, as generations
60
of slavery have left some black Moors economically and
psychologically dependent. According to Zekeria Denn of
the University of Nouakchott in Mauritania, factors such as
extreme poverty and misinterpretation of Islamic law allow
such coercive relationships. Many who are still enslaved believe
that Islam forbids breaking out of bondage, and that they are
“divinely ordained” to be slaves. In urban centers, many work in
exploitative domestic work environments in exchange for housing, medical services, and food. In rural areas, slavery persists
among uneducated persons and those without marketable skills.
Most Mauritanian slaves are subjected to cattle herding and
domestic work without any pay.
ensure their people’s rights are properly protected. Article 8 specifically prohibits the practice of slavery, slave trade and forced
or compulsory labor. Article 10 recognizes the overall inherent
dignity of all persons. As a State Party, Mauritania also ratified
the Slavery Convention of 1926 on June 6, 1986, acknowledging the importance of imposing penalties to those who facilitate
slavery. Mauritania has made efforts to end the practice of
slavery by ratifying international treaties and enacting national
laws specifically tailored to combat slavery. Yet there are few
indications that Mauritania has taken effective policy actions to
eliminate the practice or create support mechanisms for newly
freed slaves.
Before the official criminalization of slavery in 2007,
Mauritania issued a national order abolishing slavery. However,
according to a 2010 report of the UN Special Rapporteur on
Contemporary Forms of Slavery, the order ultimately proved to
be ineffective due to its vague language. Special Rapporteur on
Contemporary Forms of Slavery Gulnara Shahinian emphasized
in the report that the order did not criminalize slavery, lacked
effective implementation mechanisms, and failed to address the
practice’s root causes.
Questions of Justice for Victims of Rape in Sudan
A nineteen-year-old Ethiopian woman who is a victim of
gang rape has been imprisoned in Sudan and is now facing
deportation. In August 2013, seven men lured the Ethiopian
woman into an empty house and sexually assaulted her. The
woman was three months pregnant at the time of the rape.
Although Sudanese police found the woman shortly after the
assault, they did not file a formal complaint due to the ongoing
Eid holiday. The woman did not report the rape, fearing further
threats of violence by the perpetrators. The seven young men
filmed the incident and distributed it over the web through social
media six months later. Upon discovery of the film, the police
not only arrested the perpetrators, but also arrested the victim for
adultery. While the Sudanese court may drop adultery charges
after prosecutors establish her marital status, the issue remains
in flux as sexual intercourse with a man other than a woman’s
husband, even in circumstances of rape, may constitute a charge
of adultery. In the interim, the court has found her guilty of
committing “indecent acts,” for which she has been sentenced
to one month in prison and fined the equivalent of $960. While
imprisoned, officials have denied her request to be moved to a
medical facility despite the fact that she is nearing childbirth.
The 2007 slavery law became a turning point in Mauritania’s
long history of slavery. Article 3 of the Act prohibits “discrimination, in any form, against a person alleged to be a slave,” and
slavery occurs when “any person reduces another person or a
person under their care or responsibility, to slavery or incites
them to forfeit their liberty or dignity, for the purpose of enslaving them.” The offense is punishable by five to ten years of
imprisonment and a fine of up to $4,000. The Act also acknowledges and outlines different slavery-related offenses, including
“appropriating goods, products, or earnings resulting from slave
labor, and prejudicing physical integrity or denying the child of a
slave access to education.” Ramifications of, and compensation
for, freed slaves are also provided in the form of social assistance and monetary compensation through criminal indictment
of their owners.
The initial adultery charge raised concerns among organizations such as the Strategic Initiative for Women in the Horn of
Africa (SIHA). Traditionally, women convicted of adultery were
subject to death by stoning. The Law of the New Sudan Penal
Code of 2003 amended the old Criminal Act of 1991, prescribes
imprisonment or fines for women who commit adultery. Despite
legislative reform and the rare use of stoning as a form of punishment, in 2012, SIHA found that Sudan had sentenced two
women, Intisar Sharif and Laila Jamool, to stoning for adultery.
The courts, however, overturned the sentence on appeal.
The U.S. Department of State reported that the Mauritanian
government began to provide some antislavery training for
administrative officials and judges, but such efforts have been
hindered by poor funding and inadequate attention. In 2012,
there were no known charges brought against alleged slave
owners, and an estimated number of freed slaves was unavailable. Because the 2007 law requires persons living under slave
conditions to file a complaint against the alleged slave owner,
prosecution is very difficult. The law further prohibits NGOs
from filing on behalf of illiterate or uneducated slaves. While
aware of common illiteracy among slaves, the government has
not yet facilitated a program to train individuals on filing complaints. In January 2013, two slavery cases were brought to the
forefront by an NGO. Although on record the investigations are
ongoing, the alleged perpetrators were released soon after their
arrest for reasons that their actions did not amount to slavery. To
date, only one person has been convicted of the crime of slavery.
The penal sentences for the men perpetrating the rape have
also raised concern. Of the seven involved, six were convicted
and sentenced for adultery and indecent acts — crimes punishable by monetary fines and corporal lashings. However, the
Sudanese Attorney General barred the woman from reporting
her rape, reasoning that she was the subject of an investigation
for harming public morality. SIHA stated that arbitrarily denying
a victim the ability to make a formal complaint “renders the perpetrators immune from accountability and violates the rights of
the victim.” The victim also loses the chance to file a complaint
in the future because it is illegal in Sudan to try a person twice
with the same facts and evidence.
Mauritania is a State Party to international conventions
directly relevant to the abolition of slavery. On November 17,
2004, the country ratified the International Covenant on Civil
and Political Rights (ICCPR). Article 2 of the ICCPR advises
ratifying countries to take adequate legislative measures to
61
Hala Alkarib, the regional director of SIHA, commented that
this case demonstrates the persistent difficulties female victims
experience in reporting rape and seeking accountability for the
perpetrators. Alkarib asserts that “there is an urgent need for [A]
rticle 149 of the criminal code referring to rape to be reformed
to protect victims and pursue justice.” Currently, Section 149
vaguely defines rape as “committing non-consented adultery,”
which leaves open broad and arbitrary interpretations of the law.
Furthermore, under the 1991 Criminal Act’s definition of rape,
the victim alleging the rape may in turn be criminally charged
for adultery or false accusation if she fails to provide sufficient
evidence.
have been violated. Despite the Sudanese government’s obligation to guarantee effective remedies under Article 2(3) of the
ICCPR, the prosecution has filed fresh criminal charges against
the woman for adultery under Section 146 of the 1991 Sudanese
Criminal Act, which criminalizes “pregnant unmarried women,”
along with charges that the woman violated Article 30-A of
the Passports and Immigration Law of 1994. Even bleaker for
the Sudanese criminal system, the victim is facing jail time for
allegations of illegally entering the country. While her appeal
against the new adultery charges has been filed, this case highlights the serious concerns regarding Sudan’s compliance with
its international legal obligations to protect women.
As a State Party to the International Covenant on Civil and
Political Rights (ICCPR) and the African Charter on Human and
Peoples’ Rights, Sudan is obligated to provide effective remedies
and reparation measures for those whose rights and freedoms
Min Jung Kim, a J.D. candidate at the American University
Rights Brief.
62
REGIONAL HUMAN RIGHTS SYSTEMs
African Systems
jurisdiction to rule on the African Union’s actions. Although
a small decision in the lengthy trial, this recent ruling by the
ECCJ may help guarantee justice for the victims, support for
international criminal prosecution in Africa, and legitimacy for
the ECCJ’s own rulings.
ECOWAS Court Refuses to Suspend Case Against
Hissène Habré
The Economic Community of West African States’ adjudicatory body, the Community Court of Justice (ECCJ), recently
denied Hissène Habré’s petition to suspend the ongoing trial
against him in the Extraordinary African Chambers. The
Chambers, an ad hoc tribunal in Senegal, indicted Habré on
June 2, 2013, for war crimes, crimes against humanity, and
torture committed during his rule in Chad between 1982 and
1990. Habré’s regime was responsible for 200,000 victims of
torture and more than 400,000 deaths. The victims of Habré’s
rule attempted to seek justice in several different forums prior
to the establishment of the Chambers. Seven of the victims first
brought a case against Habré in a domestic Senegalese court in
2000, but the victims later brought the case in Belgium because
the Senegalese court found Habré could not be tried domestically for crimes committed outside Senegal. The Senegalese
courts, however, found they lacked jurisdiction to rule on an
extradition request from Belgium.
The Habré trial carries the burden of proving that African
courts can prosecute African leaders for international crimes.
Discontent among African nations with the actions of the
International Criminal Court (ICC) has led to support for
international criminal prosecution of African leaders in African
courts rather than in the ICC. Kenya’s recent withdrawal from
the jurisdiction of the ICC in September 2013 threatens to instigate a mass exodus of several other African countries from the
ICC. Adding to the tension, the AU has debated whether to add
international criminal jurisdiction to the pan-African court for
several years. The ECCJ’s November decision in Habré’s case
allows the Chambers to prove that African courts can prosecute
African leaders under international criminal law without the
ICC.
Additionally, the ECCJ’s latest decision encourages acceptance of the ECCJ as a legitimate human rights court in the
region. In the past, the ECCJ’s decisions have been plagued
with noncompliance of Member States. In an attempt to curb
noncompliance, in 2012, the ECCJ announced a new focus on
effective implementation. The AU’s support of the ECCJ’s 2010
ruling and the subsequent compliance with the ruling through
the creation of the Chambers in 2012 strengthened the ECCJ’s
credibility. As the ECCJ’s newest November ruling on the matter
is consistent with its original 2010 ruling, the ECCJ is proving
itself as a legitimate court in the region.
Before the Chambers took on the case, Senegal’s inability to
try Habré came under international scrutiny. The United Nations
Committee against Torture issued a decision against Senegal in
response to the lack of legal remedies for the victims, finding
that Senegal violated the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Under Articles 5 and 7 of the CAT, a State Party must establish
jurisdiction over and prosecute an offender of the Convention if
the offender is in the State Party’s territory and the State Party
cannot extradite him.
AU Promises Commission to Investigate Human
Rights Abuses in South Sudan
Amidst international pressure and with the passage of new
domestic legislation in 2007 that allowed for the prosecution
of war crimes, crimes against humanity, and torture, Senegal
prepared to try Habré in domestic courts. However, a later 2010
ECCJ ruling found that Habré had to be tried by an ad hoc tribunal of international character and not a domestic Senegalese
court because Senegalese domestic law did not incorporate universal jurisdiction at the time of Habré’s rule. A domestic court,
therefore, would have to apply universal jurisdiction retroactively in violation of Article 15 of the International Covenant on
Civil and Political Rights. International pressure to take concrete
action on Habré’s case continued and, in 2012, Senegal and the
African Union (AU) created the Chambers as an ad hoc tribunal,
integrating it into Senegal’s domestic legal system.
The African Union (AU) recently initiated a Commission
of Inquiry to investigate gross human rights abuses in South
Sudan. This measure follows months of fighting, which began
mid-December in South Sudan, displacing 189,000 people in the
first three weeks. As of mid-February 2014, over 850,000 people
were displaced both internally in South Sudan and as refugees
in neighboring countries. The United Nations Peacekeeping
Mission to South Sudan reported that, along with large numbers
of displaced persons, the fighting has also led to extrajudicial
killings, mass killings, sexual violence, child soldiers, and arbitrary detention. In addition to investigating these gross human
rights abuses, the Commission will recommend mechanisms to
promote reconciliation between the two warring factions in the
country. President Olusegun Obasanjo, the former Chairperson
of the African Union, heads the five-member Commission.
On April 23, 2013, Habré asked the ECCJ to suspend all
activities of the Chambers, arguing the illegitimacy of the
Chambers and the inability of the Chambers to provide him a
fair trial. The ECCJ dismissed the petition on November 5, 2013,
finding that it did not have the authority to grant such a request
because the Chambers were established through an agreement between Senegal and the AU. The ECCJ does not have
The conflict broke out in December 2013 between soldiers
that support South Sudanese President Salva Kiir and a group
that supports the former Vice-President Riek Machar. President
Kiir and Machar belong to two different ethnic groups in the
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region, the Nuer and the Dinka, respectively. UN representatives have called the fighting an ethnic conflict, but the start of
the conflict stems from political considerations. In July 2013,
President Salva Kiir dismissed his cabinet, including the former Vice-President. When fighting started in December in the
capital of Juba, President Kiir announced that Machar’s soldiers
had instigated the attack. However, Machar denies that he ever
attempted a coup. The conflict then quickly spread from Juba,
reaching the rest of the country.
Office of the High Commissioner of Human Rights and the UN
Secretary General Ban Ki Moon have called for prosecution of
those responsible for the grave crimes committed since January.
The Commission can provide accountability for these human
rights abuses while keeping the inquiry within the region. The
fast and effective establishment of the Commission would set a
precedent for how to address human rights abuses that arise out
of conflict within the region and would lend credibility to the
AU when it comes to holding human rights abusers accountable.
In light of the human rights abuses arising from the conflict, civil society indicated its support for the AU’s creation
of the Commission of Inquiry. In fact, several organizations
signed on to a statement that both supports the AU’s decision
and makes recommendations to the AU. Civil society organizations, however, recommended that the AU develop the terms of
reference and choose members as quickly as possible so that the
Commission can get underway immediately. Additionally, they
recommended that the Commission’s mandate require accountability for committing human rights abuses and the independence of members of the Commission.
Brittany West, a J.D. candidate at the American University
Rights Brief.
European Human Rights System
Life sentences under fire in the United Kingdom
Currently, there are fifty-two convicted criminals serving
life sentences in the United Kingdom without the possibility
of parole. In July 2013, the upper chamber of the European
Court of Human Rights (ECtHR) decided that life sentences
for three murderers convicted in the United Kingdom breached
their human rights because life sentence without any prospect of
release or review amount to inhuman and degrading treatment.
The United Kingdom continues to disagree with the Court’s ruling and sent a formal letter to the Council of Europe expressing
those views. A U.K. Ministry of Justice spokesperson stated that
“[t]he government remains firmly of the view that whole-life
orders are wholly justified in the most heinous cases, and that
they should continue to be available to the courts.” The Ministry
committed to arguing in upcoming related cases that a judge not
only can, but in fact must, impose life sentences without parole
in certain cases.
The Commission of Inquiry issued its terms of reference
on March 7, 2014. The Commission’s mandate requires its five
members to identify perpetrators of human rights abuses and
make recommendations to appropriate human rights mechanisms that will hold the perpetrators accountable. Additionally,
the Commission will investigate human rights abuses and make
recommendations to prevent further conflict.
Despite the recent formation of the Commission, the AU still
supports the ongoing efforts of other organizations in monitoring and mitigating the human rights abuses in the conflict. The
Intergovernmental Authority on Development (IGAD), an organization that promotes peace in the east African region, will continue monitoring the situation and engaging in a mediation process. The IGAD was involved in the peace talks held in Ethiopia
that led to the Cessation of Hostilities Agreement in late January,
in which both sides agreed to a cease-fire. However, the two
sides subsequently broke the cease-fire. The IGAD has publicly
stated that disregarding the Cessation of Hostilities Agreement
undermines the mediation process.
Critics of the AU, however, are worried that the pan-African
regional body cannot effectively put a stop to the mounting
death toll. African conflicts, including in South Sudan, draw the
presence of foreign military and the UN peacekeepers rather
than forces from the African Union. The Standby Brigades, a
promised regional force under the AU headed by a 2002 initiative, never became a reality. This combined with the failure of
the African led peace talks have led critics to question whether
the member states of the African Union can work together to
provide African solutions to African conflicts, including the current conflict in South Sudan.
Under the U.K. law, certain offenders qualify for a statutory life sentence and some life sentences allow judges to set
a minimum term that an offender must serve before reaching
eligibility for parole. Life sentences with a minimum sentence
of forty years, for example, allows for parole eligibility after
forty years are served. However, a life sentence with a wholelife order makes the convicted person ineligible for parole for
life. The European Court criticized the current U.K. law as
unclear concerning the prospect of the release of the fifty-two
prisoners currently serving a whole-life order and how the law
might affect future defendants accused of crimes that receive
whole-life orders. The Secretary of State holds the power under
the U.K. law to release a prisoner serving a whole-life order
and is legally bound to act in a way that is compatible with the
European Convention on Human Rights (ECHR). However, the
Court pointed out that in practice, such discretion is only used to
grant release under highly restrictive conditions such as terminal
illness.
Even though other organizations have made strides in negotiating peace and reconciliation, the timely development of an
independent commission remains important, including to the UN
Security Council, which has demanded accountability for human
rights violations committed in South Sudan. In light of reports of
mass killings, sexual violence, other gross human rights abuses,
and over 850,000 displaced persons, representatives of the UN
Proponents’ of whole-life orders responses to the ruling
include the proposal to replace whole-life orders with 100-year
terms. Critics of the policy and the government’s response to
the ECtHR ruling argue that there is no real difference between
a 100-year term (parole after serving 100 years) and a life sentence (no parole) and that such an attempt to circumvent the ruling is disingenuous. According to the United Kingdom’s Human
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Rights Act of 1988, British courts must only “take into account”
ECtHR decisions. Additionally, the U.K. government argues that
Britain’s Supreme Court, rather than the ECtHR, issues the final
ruling on human rights issues in the United Kingdom. However,
Article 46(1) of the ECHR establishes the binding nature of the
ECtHR’s final judgments.
May 1992 because of the conflict. Both complaints rely on the
European Convention on Human Rights, citing violations of
Article 8 (right to respect for private and family life), Article 13
(right to an effective remedy), Article 14 (prohibition of discrimination), and Article 1 of Protocol No. 1 (protection of property).
The Court held initial hearings for the two cases on
September 15, 2010, before declaring both cases at least partly
admissible. In its admissibility decision for Sargsyan, the Court
considered Azerbaijan’s argument that the complaint fell outside
the temporal jurisdiction of the Court because the displacement occurred in 1992, before Azerbaijan ratified the European
Convention on Human Rights in 2002. However, the Court
discounted Azerbaijan’s argument, reasoning that the lack of
access to the applicant’s property and home was a “continuing
situation” that fell within the competence of the Court’s jurisdiction to examine from the date of Azerbaijan’s ratification of
the Convention. The Court then considered contentious issues
in Chiragov during a hearing on January 22, 2014 including,
whether Armenia exercises effective control over the Artsakh
region, and whether the requirement to exhaust domestic remedies was fulfilled if the applicants did not first file with the
Artsakh courts in consideration of the fact that Artsakh is not a
recognized state. The ECtHR considered the merits of Sargysan
in a hearing on February 5, 2014.
Several cases are coming up in the U.K. courts that will
test the United Kingdom’s defiance of the ECtHR’s ruling.
The Court of Appeals in the upcoming test cases is expected to
address whether courts can continue to pass whole-life orders in
spite of the ruling. Lord Igor Judge, former Lord Chief Justice,
acknowledges that British judges differ in opinion on the extent
to which ECtHR decisions bind the United Kingdom. If the U.K.
courts rule in such a way that seems to be incompatible with the
ECtHR’s July 2013 judgment, the Committee of Ministers at the
European Court, which oversees the executions of judgments,
will likely refer the matter to the ECtHR. The ECtHR would
then issue a ruling on the United Kingdom’s interpretation of
its July 2013 decision and would determine whether the United
Kingdom has failed to abide by that judgment. For the Council
of Europe, this open disagreement with the European Court
of Human Rights fits a pattern of contempt from the United
Kingdom, which remains under criticism by the Council for
its response to the Court’s ruling on prisoner voting. ECtHR
President Judge Spielmann stated that Britain could even face
the possibility of leaving the European Union if it does not
adhere to European human rights laws and labels such a possibility a “political disaster.”
Despite the May 1994 cease-fire agreement between the
two sides that technically remains in effect, the region has
continued to suffer from political unsettlement and volatility.
The International Crisis Group (ICG) published a report in
September 2013 addressing the low-intensity, but increasingly
volatile, confrontation along the border between the two countries, indicating that the issue is ripe for intervention. The ICG
urged action against the “near-term threats to stability [that] are
becoming more acute” in the region.
The ECtHR Hears Cases on Both Sides of the
Artsakh Conflict
The Artsakh war, also known as the Karabakh war, is a
conflict that broke out twenty-five years ago in 1988 between
Armenia and Azerbaijan over the Nagorno-Karabakh region
(NKAO), which is physically located in Azerbaijan but whose
inhabitants are mostly Armenian. In cases filed almost ten years
ago alleging human rights violations that occurred more than
twenty years ago, the European Court of Human Rights (ECtHR)
now considers controversial issues revolving around the conflict.
In Sargsyan vs. Azerbaijan and Chiragov vs. Armenia, victims of
the conflict brought complaints against each state involved. The
two cases are drawing international attention to the Artsakh war,
which much of the outside world views as a frozen conflict — a
term that refers to a situation in which active armed conflict has
mostly ceased, but no peace treaty or transition framework exists
as a resolution.
The cases will likely have far reaching implications for the
thousands of internally displaced persons and refugees from
the conflict. Based on the ECtHR’s decision to hear both cases
simultaneously and give them equal treatment, some commentators predict that the Court will eventually find for both sets of
complainants, opening the door for thousands of refugees facing
the same circumstances. Because ECtHR decisions are binding
on States Parties, decisions that are favorable to applicants in
both cases, such as ordering that they be allowed to return to
their homes and be compensated, could set precedent for the
Court to impose a “partially humanitarian solution” for many
others who are similarly situated.
Sydney Pomykata, a J.D. candidate at American University
Rights Brief.
Some commentators theorize that simultaneously hearing
both cases is the Court’s way of attempting to intervene in
a twenty-five year old conflict. Sargsyan vs. Azerbaijan and
Chiragov vs. Armenia are rival cases and the Court is hearing
them side-by-side. In Sargsyan, the Armenian applicant filed
a complaint against Azerbaijan alleging that he was forced
to flee his home in Gulistan after his property was destroyed
by Azerbaijani armed forces in June 1992. Meanwhile, six
Azerbaijani Kurds brought a complaint against Armenia to the
Court in Chiragov, alleging that they were unable to return to
their homes in the Lachin region and were forced to flee in
Inter-American System
Inter-American Court Finds Peru Violated Rights
of a Woman Detained During 1990s Era of Political
Violence
The Inter-American Court of Human Rights (IACtHR,
Court) held Peru’s 1992 detention of J, a Peruvian woman,
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and Article 8, which provides the right of the accuser of torture
to an impartial examination of his or her case.
violated several regional human rights treaties to which the
country is a State Party. Specifically, in its November 2013 decision, the Court found that Peru violated the right to be free from
illegal and arbitrary detention and inhuman treatment as well as
the right to a fair trial and privacy.
In examining the sexual violence allegations, the Court evaluated the TRC findings, statements made by plaintiff J, statements
made by the prosecutor’s office, the medical exam of J, and the
lack of investigations by the State, while being mindful of the
context in which the events took place. In agreement with the
Commission, the Court held that there was sufficient information to conclude that J was indeed abused and sexually assaulted.
The Court, however, only held that Peru violated Article 7.b of
the Convention of Belém do Pará failing to prevent, investigate,
and impose penalties for violence against women.
The victim, whom the Court calls “J,” was arrested and
accused of terrorism in April 1992 during a tumultuous period
of political violence in Peru. The Court found that state officials
deprived J of her right to judicial proceedings and subjected
her to acts of torture and sexual violence. According to the
facts of the case, J was held in the National Counter-Terrorism
Directorate (DINCOTE) for seventeen days in inhumane conditions and without judicial oversight. J was eventually released,
but continued to experience violations of her due process
rights in criminal proceedings. She was acquitted in June
1993, subsequently left Peru, received asylum in Northern
Ireland, and is now a naturalized British citizen. According to
the Inter-American Commission on Human Rights (IACHR,
Commission), Peru’s “faceless” and anonymous Supreme Court
reversed the acquittal and issued new proceedings against J, for
which an international warrant for her arrest persists today.
This finding of the Court is a progression from its conclusion
in a factually similar case decided in 1997. In Loayza-Tamayo v.
Peru, the Court found violations of torture, cruel and inhumane
treatment for allegations of beatings, maltreatment, torture and
threats of further violence. The Court did not, however, conclude
that any sexual abuse had taken place despite evidence proving
the sexual violence allegations as well as the gender-neutral
allegations. In citing a violation of the Convention Belém do
Pará, the current Court for J. v. Peru now appears to abandon the
suggestion in Loayza-Tamayo that a higher burden of proof is
required for allegations of sexual violence.
The Peruvian government suspected J of committing acts
of terror. At the time, Peru prosecuted people for terrorism
under Decree Law No. 25.475. A United Nations Human Rights
Committee Report notes that innocent people were detained
under the broad law on accusations of suspected terrorism in
Peru. The Truth and Reconciliation Commission of Peru (TRC)
found that between 61,000 and 77,000 people were killed during the political violence. The Peruvian government, military,
police, and other security forces were found to be responsible for
nearly half — forty-five percent — of the deaths. The Shining
Path, a Maoist opposition group, was responsible for approximately fifty-four percent of the deaths. The TRC reported that
6,443 acts of torture were committed, attributing seventy-five
percent of those acts of torture to the Peruvian government.
J. v. Peru was the only case the Court heard in 2013 dealing
with gender-based allegations founded in the Convention of
Belém do Pará. Peru did not ratify Belém do Pará until 1996.
Because the 1992 events against J happened before Peru’s ratification of the Convention of Belém do Pará, the Court concluded
that Article 7.b of the Convention of Belém do Pará was the only
provision over which the Court held jurisdiction in this case.
IACtHR Finds Argentina Responsible for Murder of
Police Commissioner, But Falls Short of Addressing
Institutional Corruption
Last term, the Inter-American Court of Human Rights
(IACtHR, Court) decided the case of Gutiérrez and Family
v. Argentina, concluding that Argentina state officials were
responsible for the 1994 extrajudicial killing of Jorge Omar
Gutiérrez, the then Assistant Commissioner of the Buenos
Aires Provincial Police, and guilty of obstruction of justice in
the subsequent investigation. Argentina accepted responsibility
for the murder and obstruction of justice in proceedings before
the Inter-American Commission on Human Rights (IACHR,
Commission) and the Court. However, it remains to be seen what
effect the November 2013 ruling will have on reform in Buenos
Aires to combat corruption in the police force.
The Inter-American Commission on Human Rights found
that Peru had committed violations of the American Convention
on Human Rights (Convention), the Inter-American Convention
to Prevent and Punish Torture, and the Inter-American
Convention on the Prevention, Punishment, and Eradication of
Violence Against Women (Convention of Belém do Pará). The
case was referred to the Court due to state noncompliance with
the Commission’s recommendations.
The Court ruled that Peru had violated several of its obligations in regional human rights treaties. The Court focused on the
legality of J’s arrest, the search of her home, the conditions of
her detention, acts of torture, and the limitations on her due process and legal rights. The Court found that Peru violated a number of provisions under the American Convention; specifically,
Article 1 (Obligation to Respect Rights), Article 2 (Domestic
Legal Effect), Article 3 (Right to Juridical Personality), Article
4 (Right to Life), Article 5 (Right to Humane Treatment),
Article 6 (Freedom from Slavery), Article 7 (Right to Personal
Liberty), Article 8 (Right to a Fair Trial), and Article 11 (Right
to Privacy). Furthermore, the Court found violations of the
Convention to Prevent and Punish Torture at Article 6, which
requires states to take measures to prevent and punish torture,
Throughout the 1990s, under the presidency of Carlos
Menem, the government was known for its rampant corruption.
Responding to this corruption in 1994, Assistant Commissioner
Gutiérrez investigated a smuggling operation in which state
officials allegedly facilitated a bypass of customs through a
series of warehouses outside of the Ezeiza International Airport.
On the night of August 29, 1994, Commissioner Gutiérrez was
supposed to be driven home by one of his officers. He was
instead dropped off at a train station, where his only option to
get home was to board the train. Two allegedly corrupt officers
were waiting for him on the train, and shot Gutiérrez in the back
66
In presenting the case to the Court, the Commission referred
to “structural deficiencies” in the functioning of the police and
the provincial system of justice. The Commission argued that the
Court would be ignoring a vital dimension of the case’s ongoing violations of Articles 5, 8, and 25 if it did not examine the
systematic nature of institutional corruption. The Court refused
to address institutional corruption, however, citing a need to
limit the factual framework of this matter. Although the Court
did not consider the macro structural issues of police corruption, it did hold that the current police system’s ongoing failure
to adequately investigate Gutierrez’s murder continues to violate
his family’s right to judicial protection.
of the neck. Witnesses from the train testified during the investigation that the murderers were Federal Police agents. The state
then stalled the investigation and obstructed the proceedings,
threatening and beating testifying witnesses. Argentina accepted
responsibility before the Commission and the Court, noting
that “it was highly likely that agents of the Argentine Federal
Police had been involved in the death of Assistant Commissioner
Gutiérrez.”
The IACHR heard the case in 2011 and concluded that
Argentina committed violations of Articles 4 (Right to Life),
Article 5 (Right to Humane Treatment), Article 8 (Right to a
Fair Trial), and Article 25 (Right to Judicial Protection) of the
American Convention on Human Rights (American Convention)
and recommended a full, impartial, and swift investigation of the
murder and reparations to the family. The case was referred to
the Court for issues of non-compliance in 2013.
State corruption in Argentina remains a major problem. In
the 2010 Transparency International Corruption Perception
Index, Argentina ranked 105th out of 178 countries, amongst
Algeria, Kazakhstan, Moldova, and Senegal. Similarly, the 2011
World Justice Project Rule of Law Index ranked Argentina fortysixth out of sixty-six for “absence of corruption,” and fiftyseventh for “regulation and compliance with the law.” Although
the Gutiérrez case puts an international spotlight on the severe
corruption within the Buenos Aires province and Federal Police
forces, it is unclear what impact the Court’s decision will have
locally.
The Court agreed with the Commission that state agents
were responsible for the execution of Assistant Commissioner
Gutiérrez and affirmed that Argentina violated Articles 4, 5, 8,
and 25 of the American Convention. The Court also concluded
that Argentina violated Article 5(1) (Right to Personal Integrity)
of Gutiérrez’s family for the failure to investigate and punish perpetrators responsible for the extrajudicial execution of
Gutiérrez.
Whitney Hood, a J.D. candidate at American University
Rights Brief.
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criminal courts and tribunals
International Criminal Tribunals
and (5) the necessity of crafting a defense strategy and obtaining
experts to scrutinize the evidence of the Prosecutor.
Special Tribunal for Lebanon Grants Motion to Join
Ayyash et al. with Mehri case
The Mehri Defense Team argued that a significant delay is
required under Article 16(4)(b), which guarantees the accused to
have “adequate time and facilities for the preparation of his or
her defence [sic].” The Mehri Defense Team noted that the lead
counsel was appointed on December 20, 2013, and argued that
he would not be able to sufficiently prepare for trial while concurrently assisting the Ayyash et al. Defense Team at trial. The
Mehri Defense similarly argued against a phased resumption of
the trial on the merits, which would allow for separate parts of
the trial to resume in set stages as the Defense Teams continue
to prepare. The Mehri Defense Team argued that such a phased
resumption would violate Mehri’s Article 16(2) rights to a fair
trial by forcing the Defense to confront adverse witness, a right
pursuant to Article 16(4)(e), before completely analyzing all the
evidence presented by the Prosecutor, a right pursuant to Article
16(4)(f).
The Trial Chamber of the Special Tribunal for Lebanon
granted the Prosecution’s motion to join the case against Hassan
Habib Merhi with the case against Salim Ayyash, Mustafa
Badreddine, Assad Sabra, and Hussein Oneissi (Ayyash et
al.) on February 11, 2014. The Prosecutor indicted the five
defendants for their alleged roles in the assassination of former
Lebanese Prime Minister Rafik Hariri on February 14, 2005.
The car-bomb assassination in the center of Beirut, Lebanon,
killed twenty-two people, including Hariri. Although international investigations into the terrorist attack have led to several
indictments, none of the defendants have been apprehended;
Ayyash et al. and Merhi are being tried in absentia.
The Pre-Trial Chamber confirmed charges against Ayyash,
Badreddine, Sabra, and Oneissi on June 10, 2011, for nine
counts of conspiring and committing a terrorist act, conspiring
and committing homicide, and being an accomplice to homicide and terrorist attacks in relation to the 2005 Hariri attack.
The Trial Chamber, however, did not hear opening statements
for the Ayyash et al. case on January 16, 2014. As a result of
continued investigations into the 2005 Hariri attack, the PreTrial judge confirmed charges against Mehri for five counts of
conspiracy to commit a terrorist act, being an accomplice to the
commission of a terrorist act, and intentional homicide on July
31, 2013.
After the written and oral arguments of the Mehri Defense
Team, the Trial Court ordered a delay of at least four months.
Although the trial will not recommence before the Mehri
Defense Team has had time to review the evidence in its entirety
and to prepare a “useful and effective defense,” the judge did not
eliminate the possibility of a phased resumption of the trial. The
Trial Court recognized the importance of judicial efficiency by
suggesting that a phased resumption of the trial is possible; however, by conditioning the resumption of the trial on the Mehri
Defense Team’s ability to adequately prepare, the Trial Court
assured Mehri’s Article 16(2) right to a fair trial.
On December 30, 2013, the Prosecutor filed a motion of
joinder, pursuant to Rule 70, requesting to join the Ayyash et al.
and Mehri cases. Rule 70(B) allows the joinder of cases in which
the defendants are accused “of the same or different crimes
falling within Article 1 of the Statute.” Article 1 lays out the
authority of the Tribunal, providing broad jurisdiction over all
persons responsible for the Hariri assassination and connected
attacks. The Judge ruled that, pursuant to the joinder requirements of Rule 70(B), the cases were sufficiently connected due
to the common charges, the need for consistency of findings, the
concerns of duplicating evidence, and the imperative of witness
protection. Neither Defense Team opposed the motion, provided
that all of the accused are afforded the same rights and guarantees as in a separate trial.
Bangladeshi International Crimes Tribunal to Try
Jamaat-e-Islam for Role in 1971 War
The Bangladeshi War Crimes Investigation Agency, the
official investigatory body of the Bangladeshi International
Crimes Tribunal (ICT), submitted a report to the ICT on March
25, 2014, on the alleged crimes of the Jamaat-e-Islami (Jamaat)
as a political party during the 1971 Liberation War. If the ICT
pursues charges against Jamaat as an organization, the case
would be the first since the Nuremburg Trials to try an entire
organization for war crimes and crimes against humanity. While
the Bangladeshi government expanded the jurisdiction of the
ICT in a 2013 amendment to allow for the prosecution of entire
organizations, some have claimed that the ICT lacks the authority to impose any type of punishment on organizations.
On February 17, 2014, the Mehri Defense submitted a brief
concerning the time needed to adequately prepare for the trial.
The Prosecution agreed that a four-month delay would be reasonable to allow for the Mehri Defense team to adequately prepare.
The Mehri Defense team requested a longer delay, arguing that
a significant delay was warranted due to (1) the voluminous size
of the Ayyash et al. case file, (2) the fact that the Mehri Defense
would be unable to assimilate with the Ayyash et al. Defense, (3)
the recent establishment of the Mehri Defense, (4) the fact that
the joinder prevented the Defense from adequately preparing,
During the 1971 War, the Jamaat party opposed Bangladeshi
independence from Pakistan by collaborating with Pakistani
military and committing atrocities against Bengali nationalists,
intellectuals, and the Hindu minority. The ICT has already tried
and convicted nine leaders of Jamaat for leadership roles in the
1971 War, in which up to three million Bengalis were killed and
a systematic gender-based violence campaign resulted in the
rape of up to 400,000 women and children. Despite its role in the
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War, Jamaat remained an active political party in Bangladesh. In
2013, however, the Bangladeshi government withdrew registration of Jamaat, prohibiting the party from participating in the
highly contested 2013 parliamentary elections. The Bangladeshi
Supreme Court justified de-registration for three reasons: (1)
Jamaat denies that the Bangladeshi people are the source of lawmaking; (2) it is a sub-faction of an international organization;
and (3) it discriminates along religious and gender lines.
enumerated in Sections 3(2)(a) and 3(2)(d). In response, Jamaat
supporters argue that even if the 2013 Amendment permits
the ICT to try organizations, the ICT cannot punish organizations. Sections 20(1)-20(3) empower the Court to impose the
death penalty as a maximum sentence for convicted individuals,
but are silent on the ability to impose punishment on organizations. Supporters of the potential trial, in contrast, maintain
that Section 20 of the Act permits the ICT to impose any type
of punishment at its discretion. Moreover, Section 39 of the
Bangladeshi General Clauses Act defines “person” as “any
company or association or body of individuals, whether incorporated or not.” Using this definition, supporters of the report have
argued that the ICT has the capacity to impose the suggested
punishments.
The Investigation Agency’s report alleges that the Jamaat
party aided the Pakistani army and participated in war crimes
and crimes against humanity, including genocide and mass rape
during the 1971 War. Officially, the Investigation Agency is
pushing for seven counts against Jamaat under Section 3(2) of
the Act. The Agency expects the Prosecution to charge Jamaat,
as an organization, with (1) crimes against humanity, (2)
genocide, (3) war crimes, (4) violation of any humanitarian
rules applicable in armed conflicts laid down in the Geneva
Conventions of 1949, (5) any other crimes under international
law, (6) attempt, abetment or conspiracy to commit any such
crimes, and (7) complicity in or failure to prevent commission of
any such crimes. The Agency hopes that the ICT will completely
ban the party and order the confiscation of party property.
The move to ban Jamaat as a political organization coincides
with substantial international criticism of the ICT. International
NGOs and other national governments have welcomed the
ICT, but have expressed concerns regarding protections for the
defendants and witnesses and fears that the trials were politically
motivated. Additionally, Bangladesh has passed constitutional
amendments to Articles 47(3) and 47(A) of the Constitution
that, respectively, prevent the accused at the ICT from challenging the constitutional validity of any law and strip those accused
by the ICT of many specific constitutional protections that are
guaranteed to other Bangladeshi citizens. The constitutional
amendments, coupled with a variety of questionable aspects
of the ICT Rules of Procedure, have led some commentators
to claim that fundamental problems with the ICT violate the
fair trial protections enshrined in Article 14 of the International
Covenant on Civil and Political Rights.
In addition to undemocratic concerns, critics of trying
the Jamaat argue that there is no statutory justification in the
amended International Crimes (Tribunals) Act that would permit
the ICT to impose any penalty on the organization. While the
original International Crimes (Tribunal) Act of 1973 authorized
the Bangladeshi government to establish the ICT, there was no
authorization to try an entire organization. However, since the
2013 Amendment inserted the word “organization” into Section
3(1) of the Act, supporters of the report argue that pursuant to
Section 3(1), the ICT has jurisdictional reach over organizations
and can bring war crimes and crimes against humanity charges
Christopher Keeler, a J.D. Candidate at the American
Human Rights Brief.
69
INTERGOVERNMENTAL ORGANIZATIONS
Inter-Governmental Organizations
helps activists avoid government efforts to cover up repression.
While some governments attempt to order social media companies to disclose identities of anonymous users or block discussion of certain topics, organizations such as Google, Yahoo,
and Microsoft have developed the Global Network Initiative
designed to encourage companies to combat these demands and
protect users’ privacy. Additionally, even where governments
limit access to the Internet, social media followers can multiply
quicker than any monitoring police ever could, thus allowing
activists to remain online, even in limited circumstances.
Turkey’s attempt to ban social media platforms
threatens freedom of expression
The United Nations Office of the High Commissioner for
Human Rights (OHCHR) expressed concern over Turkey’s
recent attempt to ban social media platforms Twitter and
YouTube, calling these actions a threat to freedom of expression
conflicting with the country’s international human rights obligations. While Turkey is not the only country attempting to block
forms of social media, human rights advocates have pressed for
changes on multiple other occasions. Not only has Turkey been
labeled the world’s “top press jailer,” but in May 2013 Turkey
adopted Law 5651, allowing the government to block Internet
sites deemed to have “insulting” content without a court order.
Although an Ankara court eventually overturned the Twitter and
YouTube bans, given the integral role of social media in “leaderless” revolutions, the UN continues to express the belief that
restricting Internet freedom also restricts fundamental human
rights.
Furthermore, social media has played an imperative role in
the organization of revolutions around the world, such as the
Arab Spring. As such, the United Nations expressed concern
that Law 5651 would thwart activist efforts to hold the Turkish
government accountable since the law also requires Internet
providers to track and store web users’ activities for two years
and to make it available to authorities without a judicial order.
During the Arab Spring, activists from Egypt used “Facebook
to schedule the protests . . . Twitter to coordinate, and YouTube
to tell the world.” However, since Law 5651 was passed, almost
37,000 websites have been blocked by court orders.
Since Turkey is a State Party to both the International
Covenant on Civil and Political Rights (ICCPR) and the
European Convention on Human Rights (ECHR), the country
is obligated to afford citizens the freedom of expression in the
media. Further, Article 26 of Turkey’s Constitution also guarantees free speech. Despite the Turkish government’s domestic
and international commitments to free speech, Prime Minister
Tayyip Erdogan endorsed the ban, accusing Twitter and other
social networks of transmitting purported tapped phone conversations, which, in turn, appear to corroborate allegations of
corruption within the government. Erdogan further justifies the
law as establishing “precautions against material that might hurt
children, youth and families.” However, Amnesty International
labels the social media attacks as part of “a broader policy to
silence and smear people” that speak out against the government.
While Turkey’s own President Abudullah Gul was among
those condemning the order, which he challenged through a
series of his own tweets, it is unknown what the future holds
for Internet users in the country. Rupert Colville, spokesperson
for the UN High Commissioner for Human Rights, stressed that
“the same rights that people have offline must also be protected
online.” For now, the United Nations welcomed the lifting of
the restrictions on Twitter and YouTube, and reinforced its position that access to these sites is essential to fundamental human
rights.
United Nations Claims Anti-homosexuality
Legislation Violates Human Rights: The Cases of
Uganda and India
Since the passage of Law 5651, Turkish activists and social
media users have been fighting to protect their right to freedom
of speech. According to Twitturk, which compiles statistics on
Turkey’s twitter users, merely ten hours after the government
enacted the ban, Turkish citizens posted more than 500,000
tweets. After Erdogan announced the ban, many Turkish news
websites circulated instructions on how to change the domain
name settings (DNS) on computers and mobile devices, which
works by hiding the geographic whereabouts of the device and
thus allows access to the banned sites. Circumvention technologies, such as DNS, are uncomplicated and easily accessed by
Internet users living in countries that filter access to certain
websites.
Every country is required to prohibit discrimination based
on sexual orientation and gender identity under international
human rights standards. Since 2011, the United Nations (UN)
has publicly endorsed the rights of lesbian, gay, bisexual, transgendered, intersex, and questioning (LGBTIQ) people and has
expressed concern regarding acts of discrimination and violence
against such individuals. Even more recently, with the launch of
the Free and Equal Initiative, an initiative of the United Nations
Office of the High Commissioner for Human Rights Office
(OHCHR) that emphasizes the promotion of LGBTIQ rights
around the world, the UN condemns anti-homosexuality legislation as a violation against human rights. Through these new
efforts, the UN hopes that the more than eighty countries that
supported the 2011 UNHCR resolution, endorsing gay rights,
will signal the universal recognition as human rights.
Human rights groups have recognized the importance of
social media platforms such as Twitter, Facebook, and YouTube,
noting that each platform allows users to stand up against human
rights violations without risking violent retaliation, and further
Nonetheless, on February 23, 2013, President Yoweri
Musevini of Uganda signed into law a bill that imposes life
70
sentences for those who engage in same-sex relationships, as
well as those who simply “promote” homosexuality. Similarly,
India has re-criminalized same-sex relationships despite a longstanding history of promoting the expansion of human rights. In
response, UN Human Rights High Commissioner Navi Pillay
has emphasized that any country that criminalizes homosexuality creates a serious threat to human rights.
and prescribe a punishment for acts that are “against the order
of nature.” As with the proposed legislation in Uganda, the UN
claims that the Indian legislation violates the right to privacy
and non-discrimination protected under the ICCPR, which India
has also ratified. Although there are hopes that the Court may
rehear the case before a larger panel of judges, for now it is a
huge setback for the LGBTIQ community and India’s aggressive
fight against HIV. According to Human Rights Watch, the law
will further impact the already vulnerable HIV community that
now will be deterred from seeking health services out of fear of
police action.
According to the UN, Uganda’s bill violates the rights to
privacy, freedom of expression, liberty, and association since
it allows open discrimination against LGBTIQ members and
those supporting them. Notably, these rights are specifically
protected under the Ugandan Constitution, the International
Covenant on Civil and Political Rights (ICCPR), and the
Universal Declaration of Human Rights, all of which Uganda is
a State Party. However, Museveni openly believes that gays and
lesbians are “sick people that need help.” Not only would the bill
impose life sentences on members of the LGBTIQ community,
but it would also impose sentences on any person who supports
them and does not report offenses under the act. Accordingly,
the UN recognizes that this law will have devastating effects
on HIV/AIDS work within the country because it will compromise doctor-patient confidentiality. Finally, the UN maintains
that Uganda has a legal duty to protect the rights of individuals
regardless of whether the majority population approves of them.
Although more than eighty countries supported the 2011
UNHRC resolution endorsing gay rights, the UN faces fierce
opposition. “Legalized homophobia” has a history of prevalence worldwide, while many countries continue to promote
anti-homosexuality legislation. Other African countries, such as
Nigeria, have stated that gay rights are “unnatural,” and that the
resolution goes against most African beliefs. Similarly, leaders
in the Islamic world have expressed concern toward the United
Nations introducing notions that they claim “have no legal
foundation.”
Most countries with anti-gay laws today stem from colonizing nations, such as Great Britain. Ironically, the nations upholding anti-gay laws are continuing the legislative legacy of nations
that, today, are the fiercest supporters of gay rights. While the
UN recognizes that Uganda and India will not support LGBTIQ
rights overnight, the UN is calling on the governments to at least
protect LGBTIQ community members and ensure their security.
The UN affirms that it will continue to document human rights
abuses against the LGBTIQ community, including any discriminatory laws. For now, the UN will need the help of civil society
to stand in the defense of human rights.
In the case of India, the UN asserts that the country took a
“significant step backwards” when the Indian Supreme Court
overturned a 2009 ruling that had decriminalized same-sex conduct, opting instead to uphold Section 377 of the Indian Penal
Code, which criminalizes consensual gay sex. The 2009 ruling
was secured on the basis that criminalizing consensual sexual
conduct between adults in private would violate principles of
equality set forth in the Indian Constitution, and, until recently,
India was seen as a model for reforming colonial anti-homosexuality law. However, on appeal, India’s Supreme Court ruled
Section 377 to be “constitutionally valid” because, according
to Indian officials, Section 377 only seeks to define an offense
Andrea Flynn-Schneider, a J.D. candidate at the American
Human Rights Brief.
71
center news and faculty updates
Center News
on Torture’s 2013 Thematic Report. More than thirty experts
from around the globe contributed to the book. The publication
seeks to expand upon the SRT’s thematic report by providing
experts in the field the opportunity to critically reflect upon
the groundbreaking report of the Special Rapporteur. The publication is the first of its kind and has been heralded around
the world as an important tool to expand understanding and
implementation of the Special Rapporteur’s recommendations.
The full publication is available online at http://antitorture.org/
torture-in-healthcare-publication.
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 American University Washington College 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.
Anti-Torture Initiative Prepares New Report on
Implementation of the SRT’s Recommendations in
Uruguay
As part of its initiative to follow-up on the Special Rapporteur’s
2012 visit to Uruguay and specific recommendations to end
torture and ill-treatment in that country, Anti-Torture Initiative
(ATI) Coordinator Maria Leoni Zardo is working with high
profile civil society representatives and government officials to
develop and publish a compilation of articles assessing national
level follow-up to the SRT’s recommendations. This will be
the first publication of its kind, involving key stakeholders in a
critical assessment of implementation. The hope is that the publication will spark a national discussion that will help improve
implementation and end torture and ill-treatment in Uruguay.
The publication will be published in Spanish on the ATI website
(www.antitorture.org) and widely distributed in Uruguay. A
launch event is planned in August 2014.
The Center has a variety of
core projects, including the AntiTorture Initiative, the Program
on Human Rights in the United
Center Executive Director
States and its Local Human Rights
Hadar Harris announces
Lawyering Project, the Program
the winner of the Fourth
on Human Rights of Persons
Annual Humanitarian Law
with Disabilities, the Program on
Student Writing Competition
Human Rights Education, and
before the the American
Society of International Law
the Initiative on Human Rights
and the International Law
in Business. In addition to these
Association
projects, the Center provides ongoing student-focused programming,
which includes skills development seminars, lunchtime learning sessions, and a robust program of more than fifty conferences, panels, film screenings and other events each year.
Webcasts and podcasts of most programs are available at www.
WCLCenterforHR.org. The following is a brief update of some
of the most recent developments at the Center for Human Rights
& Humanitarian Law.
Anti-Torture Initiative Conducts Follow-up Visit
to Tajikistan
In February 2014, the SRT and the ATI conducted a followup visit to the Republic of Tajikistan to assess the level of implementation of the recommendations issued by the SRT after his
2012 visit to the country. The visit was organized jointly by the
ATI and the Office of the High Commissioner for Human Rights
(OHCHR). During the visit, the SRT and the ATI met with highlevel government officials from all branches of government,
as well as with representatives of local and international civil
society groups, and international and regional organizations.
The ATI and the SRT also conducted visits to several places of
detention.
Anti-Torture Initiative
The Center’s Anti-Torture Initiative works with the UN
Special Rapporteur on Torture, Cruel, Inhuman and Degrading
Treatment and Punishment (SRT), WCL Prof. Juan E. Méndez,
to enhance implementation and follow-up of his countryspecific and thematic recommendations for the prevention of
torture. Information about the project can be found at www.
antitorture.org.
As part of this trip, the SRT and the ATI participated in a
full-day roundtable discussion organized jointly by the ATI, the
OHCHR, and the Association for the Prevention of Torture. The
roundtable was attended by more than sixty people representing
all levels of the Tajik government and civil society, and constituted the first time that civil society and government were able to
hold a substantive conversation on issues related to the prohibition of torture and ill-treatment in Tajikistan. The SRT’s forthcoming report that summarizes conclusions, observations, and
Anti-Torture Initiative Publishes Torture in
Healthcare Settings: Reflections on the Special
Rapporteur on Torture’s 2013 Thematic Report
As a follow-up initiative to the Special Rapporteur on
Torture’s 2013 thematic report on the issue of torture in
healthcare settings, the ATI published its new book, Torture
in Healthcare Settings: Reflections on the Special Rapporteur
72
further recommendations to the government will be presented to
the United Nations Human Rights Council.
Department of the Interior, Bureau of Indian Affairs, and the
U.S. Department of Justice. A video of the consultation can be
downloaded at www.wclcenterforhr.org.
Program on Human Rights in the United States
Program on Human Rights in Business
Since 2002, the Center has helped shape the debate and discussion around human rights in the United States. 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’s Program on 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. Information about the project can be found at www.
phrib.org.
Program on Human Rights in the United States
Hosts Civil Society Consultation with the U.S.
Government on Access to Justice
Expert Discussion on UN Guiding Principles on
Business and Human Rights
Over 100 people attended a panel discussion on the UN’s
Guiding Principles on Business and Human Rights hosted in
collaboration with the International Bar Association. Panelists
included Sarah Altschuller, Corporate Social Responsibility
Practice, Foley Hoag, LLP; Gabriella Herzog, Senior Manager,
Corporate Responsibility, Hess Corporation; and Mark Wielga,
Partner, Temkin, Wielga & Hart. The panel was moderated
by John Richardson, Co-Director of the Program on Human
Rights in Business. The program provided insights into implementation of the Principles, identified corporate best practices
generally, and provided predictions about the impact the Guiding
Principles will have on the way businesses operate throughout
the world in the coming decades.
The Center hosted a first-of-its-kind consultation on access
to justice between civil society organizations and more than
fifty high-level representatives of the government of the United
States. The Consultation was held in anticipation of the upcoming reviews of U.S. human rights obligations by the United
Nations under the Universal Periodic Review (UPR) mechanism and the ongoing review of the U.S. by the Committee
on the Elimination of all forms of Racial Discrimination
(CERD). The consultation was organized by Local Human
Rights Lawyering Project Director Lauren Bartlett and Project
Advisory Board Member Maha Jeweied, Senior Counsel at
the U.S. Department of Justice Access to Justice Initiative.
Tonya Robinson, Special Assistant to President Obama for
Domestic Policy and Justice, opened the Consultation with prepared remarks. The Consultation was structured in two panels
— one dealing with civil cases, the other dealing with criminal cases. Included in the issues addressed were the rights of
juveniles, people with disabilities, undocumented immigrants,
migrant farmworkers, homeless people, among general trends.
Civil society leaders presenting included Debra Gardner,
National Coalition for a Civil Right to Counsel; Reena Shah,
Human Rights Project Director, Maryland Legal Aid; Keith
Hillard, Maryland Legal Aid client regarding an eviction and
homelessness; Risa Kaufman, Executive Director, Columbia
University Law School Human Rights Institute; Andrew
Soles and Verna Krishnamurthy, University of Pennsylvania
Law Students; Nathaniel Norton, Farmworker Attorney,
Maryland Legal Aid; Jennifer Harbury, General Counsel,
Texas RioGrande Legal Aid; Sarah Mehta, Human Rights
Researcher, Human Rights Project, ACLU; Jennifer Nadga,
Policy Director, The Young Center for Immigrant Children’s
Rights; JoAnn Wallace, President & CEO, NLADA; Betsy
Clarke, Executive Director, Juvenile Justice Initiative; Timothy
Curry, Managing Attorney, National Juvenile Defender Center;
Professor Robert Dinerstein, Disability Rights Clinic Founder
& Director, American University Washington College of Law;
Deborah Labelle, Attorney; Steve Hanlon, American Bar
Association, Standing Committee on Legal Aid and Indigent
Defendants. Representatives from seventeen agencies of the
government of the United States were also present, including
representatives of the U.S. Department of Health and Human
Services, the U.S. Department of Homeland Security, the U.S.
Department of Housing and Urban Development, the National
Science Foundation, the U.S. Department of Labor, the U.S.
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 Announces Winner of the Fourth Annual
International Humanitarian Law Student Writing
Competition
The Fourth Annual Student International Humanitarian Law
Writing Competition culminated in the selection of University
of Ottawa law student Michele Krech as the winner. Her paper,
Technological Asymmetry and the Law of Armed Conflict: The
Intersection of Law and Politics in the Creation of Differentiated
State Obligations, was selected from a wide range of submissions from students around the world. The competition theme
— the intersection of international humanitarian law and emerging technologies — was explored in a global online conference
on May 8, 2014, during which Ms. Krech presented her paper
with noted experts Prof. Laurie Blank, Emory Law School;
Prof. Chris Jenks, SMU Law School; Prof. Sean Watts,
Creighton Law School; and Eric Jensen, ASIL Lieber Society
Chairperson. The Student IHL Writing Competition is a joint
collaboration between the Center and the American Society of
International Law’s Lieber Society. The initiative seeks to promote student scholarship in the field of international humanitarian law.
73
Speak Truth to Power Human Rights Teaching
Fellows Program Set to Expand to Additional Law
Schools and High Schools in 2014–2015
were selected from a large pool of applicants who submitted
a written application and were then individually interviewed.
Congratulations to new SAB members Sequoia Ayala, Drew
Bahr, Whitney Hood, Christopher Keeler, Whitney-Ann
Mulhauser, Natalie Richman, and Edwin Wilbert.
The Speak Truth to Power Human Rights Teaching Fellows
Program is set to expand in the next academic year to two
schools in the United States. The program is a collaboration
with the Robert F. Kennedy Center for Justice & Human Rights.
The program brings together law students, and high school and
middle school teachers and students, to promote human rights
education and activism. The program enables law students to
teach high school and middle school students from a variety of
communities in the Washington, D.C. area, basing their lessons
on the highly acclaimed STTP curriculum. In addition, through
exposing high school students to law student-educators, the program seeks to create peer-to-peer educational models to inspire
young people to make positive change in the world around them.
Center Hosts Lunches with Practitioners to Expose
Students to Practice of Human Rights Law
The Center initiated a series of lunches with noted practitioners who provided students with insight not only on their
current work, but also on the career path that led them to do the
work they do today. The lunches provided an opportunity for
students to ask questions and seek advice on their own career
aspirations. Speakers at the Lunches with Practitioners included
Stephanie Selg, Human Rights Advisor, UN Office of the
High Commissioner for Human Rights; Maha Jaweied, Senior
Counsel, U.S. Department of Justice Access to Justice Initiative;
and Wade McMullen, Robert F. Kennedy Center for Justice &
Human Rights.
Human Rights Teaching and Research Partnership
Expands Teaching of Human Rights in Colombia
through Training and Interactive Workshops
The Center is engaged in a multi-year collaboration with
two law schools in Cali, Colombia to expand the teaching of
human rights. The project envisions numerous workshops and
exchanges of faculty to identify and explore the issues of teaching human rights in Colombia and to expand the capacity and
initiative of key faculty working in the field. As part of that
project, funded through Higher Education for Development and
USAID, faculty of the two Colombian law school partners, the
Pontificia Universidad Javeriana Cali and the Universidad
Santiago de Cali, came to American University Washington
College of Law to participate in the Program of Advanced
Studies in Human Rights and Humanitarian Law and a specialized summer Legal English course.
Ukraine: Sovereignty, Democracy, and Human
Rights: An Interactive Discussion
Responding quickly to events in Ukraine, the Center hosted
a discussion on the human rights implications of the political
turmoil and Russian troop deployment in Crimea. Leading the
discussion was Center Executive Director Hadar Harris. This
event was the first planned by the Center’s new 2014 Student
Advisory Board.
Conferences, Panels and Events
This year, the Center held more than 60 events, conferences and panel discussions. Webcasts and podcasts of
most Center events are available for free download at www.
WCLCenterforHR.org.
In addition, Center Human Rights Education Program
Director Melissa del Aguila traveled to Barranquilla and Santa
Marta, Colombia to participate in the 15th Annual Conference
on Legal & Policy Issues in the Americas. The international
conference is hosted by the University of Florida Levin College
of Law in conjunction with the Universidad del Norte in
Barranquilla, Colombia and the Universidad de Magdalena in
Santa Marta, Colombia. In addition to holding working meetings
with the partners from Cali, she presented on a panel entitled,
“Crisis in Legal Education: Comparative Lessons.”
The Center Marks the 20th Anniversary of Rwanda
Genocide with Day of Commemoration
On April 7, the Center held a variety of activities throughout the day to mark the 20th anniversary of the genocide in
Rwanda. In addition to a broad public awareness event that
took place throughout the day with the Center SAB distributing
information and ribbons and screening films from survivors, the
Center held a solemn commemoration with University Chaplain
Joseph Eldridge and student readers, commemorating the more
WCL Student Initiatives
As part of the
commemoration
of the 20th
anniversary of
the Rwandan
Genocide, the
Center held a
conference that
included a panel
discussion on the
use of technology
in preventing
genocide
2014 Center Student Advisory Board Selected
After a highly competitive selection process, seven extraordinary students were invited to join the Center’s 2014 Student
Advisory Board (SAB). The Center SAB is a group of highly
qualified and committed students interested in human rights and
humanitarian law who work closely with the Center over the
course of a calendar year. The SAB assists the Center in developing programming that reflects student interests and priorities.
SAB members also participate in specialized training in practical skills, such as grant proposal writing, public speaking, interviewing, social networking, and more. The new SAB members
74
than 800,000 people who died in 100 days. Afterwards, the
Center hosted an afternoon conference on the use of technology in preventing and documenting genocide, the financing of
genocide, and citizen action against genocide. Professor Diane
Orentlicher, former Deputy Director of the Office of War
Crimes at the U.S. Department of State, gave a moving keynote
address about the responsibility of individuals to act to prevent
or stop genocide. In addition, speakers included Dean Claudio
Grossman; Katie Striffolino of Amnesty International; Jay
Ulfelder, Genocide Forecaster and Independent Consultant;
Patrick Ball of the Human Rights Data Analysis Group; Chris
Tuckwood of The Sentinel Project; Nate Haken of the Fund
for Peace; Ignacio Mujica of the Corporate Enablers Program
at Human Rights First; and Bukeni Waruzi, WITNESS Senior
Program Manager for Africa and the Middle East.
Writer and Editor for the Broadcasting Board of Governors and
former Executive Director of Pearls of Africa spoke of their
experiences at AU and provided students with career advice.
Transition in Afghanistan: A Conversation with Visiting
Scholar Hakim Asher: One week before the Afghan national
elections, the Center hosted a talk with Dr. Hakim Asher, AU
Visiting Fellow and former Executive Director of the Afghan
Government Media and Information. Formally a close advisor to Afghan President Hamid Karzai, Dr. Asher provided his
insider’s perspective about democracy, security, and geopolitics
in Afghanistan.
Celebration of the Life of Archbishop Oscar Romero: The
AU community came together at the Kay Spiritual Life Center
to commemorate Archbishop Oscar Romero on the 34th anniversary of his assassination. A range of community members
spoke at the commemoration, including Rev. Joe Eldridge,
University Chaplin; Father Carlos Quijano; Father Vidal Rivas;
AU student Allesandra Clara; Manuel Perez Rocha; Sonia
Umanzor; Reverendo Palacios; and Evangelina Castillo.
Center Hosts Expert Roundtable Discussion on
Human Rights and Electronic Surveillance
Partnering with the Center for Democracy & Technology
and the American Civil Liberties Union, the Center hosted
a day-long invitation-only roundtable discussion on the human
rights and international law implications of electronic eavesdropping programs such as those carried out by the National
Security Agency. Nearly fifty high-level experts from dozens
of civil society organizations participated in the discussion.
Participants included, among others, Frank LaRue, UN Special
Rapporteur on Freedom of Expression; Michael O’Flaherty,
former member of the UN Human Rights Committee (overseeing the ICCPR); Dinah PoKempner, General Counsel
of Human Rights Watch; Rebecca MacKinnon of the New
America Foundation; and Morton Halperin of the Open
Society Foundations.
Roma: Political Participation, Society, and Human
Rights: The Center, in cooperation with the Hubert H.
Humphrey Fellowship Program and the International Legal
Studies Program, brought a number of high-level officials and
scholars to WCL to discuss the situation of the Roma in Europe.
Over fifty people, including a number of NGO and government
leaders, attended the conference. Speaking were Hadar Harris,
Executive Director of the Center; Padideh Ala’i, Director of
Hubert H. Humphrey Program; Dr. Florin Priboi, Hubert H.
Humphrey Fellow at WCL; Dr. Gisella Gori, Senior Advisor
of Global Issues, European Union Delegation to the United
States; Dr. Margareta Matache, Professor, Harvard University;
Diliana Markova, Humphrey Fellow and WCL student; Jud
Nirenberg, Board Chair, National Roma Center of Macedonia;
Dr. Cristina Bejan, expert at the Woodrow Wilson International
Center for Scholars; David Meyer, Foreign Affairs Officer, U.S.
Department of State, Bureau of Democracy, Human Rights,
and Labor; Nadezhda Mouzykina, Program Officer, National
Democratic Institute; and Dr. Mischa Thompson, Policy
Advisor, Commission on Security and Cooperation in Europe.
Center Holds Inaugural Week of Activities: Human
Rights Across AU
As part of its initiative to build greater cooperation in human
rights programming across the entire American University
campus, the Center hosted Human Rights Across AU, a week of
activities and interactive discussions on human rights themes at
home and abroad across the AU campus. Among the events that
took place were:
Webinar on Engaging the U.S. Government through UN
Advocacy in Human Rights Compliance: The Center’s Local
Human Rights Lawyering Program Director, Lauren Bartlett,
led fifty NGO leaders and attorneys in an online training session on using UN mechanisms to engage the U.S. government
on human rights compliance issues. Speakers included Joshua
Cooper, Director of the Hawaii Center for Human Rights
Research and Action; Hadar Harris, Executive Director, WCL
Center for Human Rights & Humanitarian Law, JoAnn Kamuf
Ward, Columbia Law School Human Rights Institute, and Eric
Tars, National Law Center for Homelessness and Poverty. The
training came the week before WCL hosted a Civil Society
Consultation in which civil society leaders, many of whom took
part in the training, met with representatives of the United States
government as part of the Universal Periodic Review process
established by the United Nations.
Human Rights 101: A crash course in human rights led by
Center Executive Director Hadar Harris
Protection from Everyday Violence as a Human Right:
Liz West and Lauren Walker, Organizing and Advocacy
Fellows with International Justice Mission, discussed the intersection of citizen security and human rights around the world.
Portraits for Social Change: Eight student organizations
across AU organized an exhibit with photos of women who are
social and human right leaders.
AU Alumni Working in Human Rights: SPA alumna
Christina Arnold (SPA ’04, ’10), founder and President of
Prevent Human Trafficking; WCL alumna Lauren Bartlett
(WCL ’07), Project Director at the Center; SIS alumna Katherine
Marshall (SIS/WCL ’10) consultant at the Public International
Law and Policy Group; and Laurie Moy (SOC ’09), Multimedia
75
Faculty Updates
Claudia Martin is a Professorial Lecturer in Residence and
Co-Director of the Academy on Human Rights and Humanitarian
Law at WCL. On October 29, 2013, Professor Martin coordinated an Expert Meeting on the “Situation of the Human
Rights of Girls and Adolescent Girls in Latin America and the
Caribbean,” sponsored by UNICEF, UNPFA, and the Academy
on Human Rights and Humanitarian Law and moderated a panel
on “The Situation of Reproductive Rights and Adolescent Girls
in the Region.” On November 17, 2013, she moderated a panel
on “The Right to Nationality in the Inter-American Human
Rights System: Current Situation and Future Challenges,” at
WCL. On December 5, 2013, Professor Martin spoke at a panel
on “Debido Proceso Legal y Derechos Humanos,” organized
by the Fiscalía General de la Ciudad de Buenos Aires, Buenos
Aires, Argentina. On February 21, 2014, Professor Martin lectured on “The Inter-American Human Rights System: the Role
of the Inter-American Court of Human Rights,” at a training
organized by the Law School of the University of Sao Paulo and
the Sao Paulo Public Defender’s Office, Sao Paulo, Brazil.
Dean 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 chairperson of the United Nations Committee against Torture
(UN CAT) and, in April 2014, he was re-elected chairperson for
an unprecedented fourth term. In January 2014, Dean Grossman
became the President of the Inter-American Institute for Human
Rights, for which he previously served as board member (20112014) and member of the general assembly (1993-2011). Also
in January 2014, Dean Grossman was recognized as one of the
twenty-five most influential people in legal education in 2013
by the National Jurist.
Between January and April 2014, Dean Grossman initiated
and participated in numerous human rights initiatives. He published “The U.N. Committee Against Torture and Eradication
of Torture in Health Care Settings,” in Torture in Healthcare
Settings: Reflections on the Special Rapporteur on Torture’s
2013 Thematic Report, a publication of the Center for Human
Rights and Humanitarian Law’s Anti-Torture Initiative (March
2014). He served as a moderator for the Sixteenth Annual
Grotius Lecture, “Women and Children: The Cutting Edge of
International Law,” cosponsored by WCL and ASIL during
ASIL’s 108th Annual Meeting in Washington, D.C. Together
with cosponsors ASIL and the IBA, Dean Grossman hosted at
WCL the chairs of the ten UN Human Rights Treaty Bodies and
representatives of the OHCHR for special consultations on the
ongoing treaty body strengthening process. Also in Washington,
D.C., Dean Grossman was a panelist on “Global Horizons for
Disability Rights in the Human Rights Framework” as part of
the German Marshall Fund of the United States Conference
on The Digital Frontier: Widening Access for People with
Disability; a panelist on “When Asylum is Not an Option: The
Convention against Torture” as part of the Asylum Conference
presented by the FBA and WCL; and a speaker at GWU Law
School International Law Week Keynote Speaker Series on
“Regional Proliferation: Reinforcing Uniformity or Creating
Fragmentation?”
In addition, Professor Martin published the article
“Strengthening or Straining the Inter-American System of
Human Rights,” co-authored with Diego Rodríguez-Pinzón, in
Intersentia’s The Realisation of Human Rights: When Theory
Meets Practice–Studies in Honour of Leo Zwaak. Professor
Martin also published the book El Debido Proceso Legal,
Análisis desde el Sistema Interamericano y Universal de
Derechos Humanos (Vol I and Vol II) (Due Process of Law:
Analysis from the perspective of Inter-American and Universal
Human Rights), co-authored with Diego Rodríguez-Pinzón,
Fabián Salvioli, Federico di Bernardi, and James Vértiz Medina,
Eudebaina.
Juan E. Méndez has been a Visiting Professor at WCL
since 2010. In the same year, he was appointed by the Secretary
General of the United Nations as the UN Special Rapporteur on
Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (SRT). Professor Méndez has dedicated his career
to defending human rights around the world and has a long and
distinguished record of advocacy. From February 10–12, 2014,
he conducted a follow-up visit to the Republic of Tajikistan to
evaluate the level of implementation of his recommendations
issued after his 2012 visit and urged the Tajikistan government
to fully implement its policies for the eradication and prevention
of torture and ill-treatment.
In Melbourne, Australia, Dean Grossman served as: the keynote speaker on “The Contributions by the UN Human Rights
Treaty Bodies in Imagining and Achieving Social Equity” at
the Melbourne Social Equity Institute’s Inaugural Conference
on Imagining Social Equity; the panelist for that conference’s Closing Plenary Session on “Social Equity: Where to
from Here?”; and as a speaker on “The Prohibition Against
Torture and the Role of the Committee Against Torture” at the
University of Melbourne Law School. In the United Kingdom,
Dean Grossman served as a panelist on “How best to secure
effective implementation of human rights globally?” as part
of the Wilton Park Conference on Addressing Implementation
Gaps: Improving Cooperation Between Global and Regional
Human Rights Mechanisms. At the AALS Annual Meeting
in New York, Dean Grossman served as a panelist on “The
Comprehensive Integrated Model: Can One Do It All? Can One
Afford Not To? Can One Afford It?” as part of the session on
“Globalization of Legal Education: Developing Optimal Models
for Your Law School.”
On February 28, 2014, Professor Méndez, through his AntiTorture Initiative project, issued a publication on Torture in
Healthcare Settings: Reflections on the Special Rapporteur
on Torture’s 2013 Thematic Report with contributions from
more than thirty international experts in response to the Special
Rapporteur’s provocative 2013 thematic report on torture and
other abusive practices in healthcare settings. On March 10,
2014, as Special Rapporteur, Professor Méndez presented his
latest thematic report on The Use of Torture-Tainted Information
and the Exclusionary Rule to the UN Human Rights Council in
Geneva, urging governments to strictly abstain from using information or products of acts of torture and ill-treatment collected
by third parties in other countries as well as in any domestic
proceedings.
76
Human Rights System), in the Masters in Human Rights and
Democracy of the Facultad Latinoamericana de Ciencias
Sociales (FLACSO), in Mexico City, Mexico.
On April 10, 2014, Professor Méndez delivered a keynote
address at the OSCE’s Supplementary Human Dimension
Meeting on the prevention of torture in Vienna. Additionally,
in late April, Professor Méndez visited Mexico to assess the
situation and identify challenges regarding torture and other
cruel, inhuman or degrading treatment or punishment in the
country. In his capacity as Special Rapporteur, Professor
Méndez “discuss[ed] and assess[ed] the implementation of the
new criminal procedures legislation, coerced confessions before
national courts, and the use of ‘arraigo’ detention, among other
aspects relating to [his] mandate,” and also examined prisoners’
rights and conditions of detention, in particular those spending
years in prison either awaiting trial or serving lengthy sentences
and migrants held in immigration detention facilities.
In December 2013, Professor Rodríguez-Pinzón lectured
on “Obligaciones Internacionales del Estado en Materia de
Derechos Humanos” (International Human Rights Obligations
of States) at the Primer Curso Internacional Especializado en
Derechos Humanos: Acceso a los Sistemas Internacionales
de Protección, in Cartagena, Colombia. Additionally, he participated on a panel titled “Presentation of the Book the
Due Process of Law: Analysis from the perspective of InterAmerican and Universal Human Rights,” at the Universidad
Católica de Argentina, in Buenos Aires, Argentina. On January
22, 2014, he was interviewed by CNN Spanish about the
execution of Mexican national Edgar Tamayo in Texas and its
implications regarding U.S. international obligations under
the Vienna Convention on Consular Relations. In February
2014, Professor Rodríguez-Pinzón lectured on “The InterAmerican Commission on Human Rights,” at the Universidade
de São Paulo and Defensoria Pública do Estado de São Paulo, in
Sao Paulo, Brazil, and in March 2014, he presented at a conference entitled “El Sistema Interamericano: Temas Actuales” (The
Inter-American System: Current Issues), at the Universidad de
Nariño, in Pasto, Colombia.
Diane Orentlicher is a Professor of International Law and
specializes in human rights and war crimes tribunals. Professor
Orentlicher has served in various public positions, including as
the Deputy for War Crimes Issues in the U.S. Department of
State, as the UN Independent Expert on Combating Impunity,
and as Special Advisor to the High Commissioner on National
Minorities of the Organization for Security and Co-operation in
Europe. In 2014, Professor Orentlicher participated in a panel
discussion with Fatou Bensouda, Prosecutor of the International
Criminal Court, on “U.S. Policy on the International Criminal
Court.” She also presented as the Keynote Speaker at the Center
for Human Rights and Humanitarian Law’s Commemoration
of the Twentieth Anniversary of the Genocide in Rwanda event
in April 2014. In March 2014, Professor Orentlicher traveled
to Beijing, China to present remarks on “The United States
and the International Criminal Court” as part of a forum on
the U.N. Security Council and the ICC. She also spoke at an
experts’ workshop on Reparations for Survivors of Sexual
Violence in the Democratic Republic of Congo, co-sponsored
by Physicians for Human Rights; Georgetown Institute for
Women, Peace, and Security; Columbia University School of
International and Public Affairs for Women, Peace, and Security;
and the Columbia School of International and Public Affairs at
Georgetown University.
Susana SáCouto is a Professorial Lecturer-in-Residence
at AUWCL and the Director of the War Crimes Research
Office (WCRO) and AUWCL’s Summer Law Program in The
Hague. Throughout the second half of 2013 and early 2014,
Professor SáCouto participated in several panel discussions,
including: as a panelist on a panel entitled “The International
Criminal Court and the Dynamics of Complementarity” as
part of the 2013 Samuel Dash Conference on Human Rights
hosted by Georgetown University Law Center’s Human Rights
Institute; as a panelist at the Thirty-third International Congress
of Law and Mental Health in Amsterdam, where she delivered a presentation on “A Closer Look at the Prosecution of
Sexual and Gender-Based Violence by International Criminal
Tribunals;” as an expert on the International Criminal Court
at a “Congressional Roundtable Discussion on Kenya,” organized by the ABA-International Criminal Court Project and the
Washington Working Group on the International Criminal Court
and hosted by the foreign policy staff of Senator Chris Coons
in the Russell Senate Office Building in Washington, D.C.; as a
panelist and moderator on a panel entitled “Victim Participation
at the International Criminal Court: Is It Working?” hosted by
the WCRO; and as a moderator on a panel entitled “Gender
and Its Under-Scrutinized Role in International Law,” hosted
by the American Society of International Law (ASIL), which
took place at ASIL Headquarters in Washington, D.C. She also
moderated several events, including discussions on “Seizing
and Freezing Assets of Suspects before International Criminal
Tribunals,” “International Criminal Court’s Trust Fund for
Victims,” and “Sex and International Tribunals: The Erasure of
Gender from the War Narrative,” all part of the WCRO’s War
Crimes Speaker Series. Diego Rodríguez-Pinzón is a Professorial Lecturer in
Residence and Co-Director of the Academy on Human Rights
and Humanitarian Law at AUWCL. Professor Rodríguez-Pinzón
recently published the book El Debido Proceso Legal: Análisis
desde el Sistema Interamericano y Universal de Derechos
Humanos (Vol I and Vol II)(Due Process of Law: Analysis from
the perspective of Inter-American and Universal Human Rights),
co-authored with Claudia Martin, Fabian Salvioli, Federico
Di Bernardi, and James Vertiz Medina, under the auspices of
the Ministerio Público Fiscal de la Ciudad de Buenos Aires.
In October 2013, he taught the course “The Inter-American
System on Human Rights” during the Annual Course on Human
Rights Training of the Institut de Développement et Droits
Humains, in Florianopolis, Brazil. He also served as Panel moderator in the “Expert Meeting on the Situation of the Human
Rights of Girls and Adolescent Girls in Latin America and the
Caribbean,” held at AUWCL. Additionally, in November 2013,
Professor Rodríguez-Pinzón taught the course “El Proceso
de Fortalecimiento del Sistema Interamericano de Derechos
Humanos” (The Process of Strengthening of the Inter-American
Professor SáCouto has published several recent articles
including, “The Adjudication Process and Reasoning at the
International Criminal Court: the Lubanga Trial Chamber
77
In the past year, Professor Wilson participated in several lectures, including serving as a commentator for Dean
Claudio Grossman’s lecture “The Work of the UN Committee
Against Torture” during the International Law Lecture Series
and serving as a commentator for Christiana Ochoa’s lecture
“Transferring Wealth, Developing Poverty” during the AUWCL
Faculty Lecture Series. In December 2013, he lectured in
Spanish and facilitated the “Seminar on Human Rights in the
Curriculum: Classroom and Clinics,” in Cali, Colombia, which
was funded by the Higher Education for Development Colombia
Grant. In October 2013, Professor Wilson gave a lecture in
Spanish to Latin American Civilian-Military Personnel at the
National Defense University as part of the Seminar on Strategic
Implications of Human Rights and Rule of Law; the lecture was
titled “The Inter-American System for the Protection of Human
Rights.” He also gave a lecture on “Economic, Social, and
Cultural Human Rights” for the WCL “Munching on Human
Rights Lunch Series.”
Judgment, Sentencing, and Reparations” in Human Rights and
Civil Liberties in the 21st Century, co-authored with Katherine
Cleary Thompson; “Obtaining Victim Status for the Purpose of
Participating in Proceedings at the International Criminal Court,”
in the Human Rights Brief, also co-authored with Katherine
Cleary Thompson; the forthcoming article “The Relevance of
the United Nations War Crimes Commission to the Prosecution
of Sexual and Gender-Based Crimes Today” in the Criminal
Law Forum, co-authored with Dan Plesch and Chante Lasco;
and “Investigative Management, Strategies, and Techniques of
the International Criminal Court’s Office of the Prosecutor,”
co-authored with Katherine Cleary Thompson in the forthcoming book The Law and Practice of the International Criminal
Court: A Critical Account of Challenges and Achievements.
Richard Wilson is a Professor of Law and founding director
of the International Human Rights Law Clinic at AUWCL. In
2014, Professor Wilson published an article in the International
Criminal Law Review titled “Restoration of Historic Memory
and Dignity for Victims of the Armenian Genocide: A Human
Rights Approach to Effective Reparations.” He also published
a piece, together with Emily Singer Hurvitz, in this issue of
the Human Rights Brief titled “Human Rights Violations by
Peacekeeping Forces in Somalia.” Professor Wilson received
the Pauline Ruyle Moore Scholar Award in March 2014 from
the AUWCL Committee on Scholarship for his article “Omar
Khadr: Domestic and International Litigation Strategies for a
Child in Armed Conflict Held at Guantanamo,” which was published in the Santa Clara Journal of International Law in 2012.
In September 2013, Professor Wilson participated in a litigation roundtable in London, England hosted by Legal Action
Worldwide (LAW) on “Litigation in the Occupied Palestinian
Territories: Strategies for Litigation.” Professor Wilson also
currently serves as a member of the Board of Directors and the
Advisory Board of LAW. He also participated, in Spanish, in the
Fifth National Congress on Teaching Legal Sciences workshop
in Valencia, Spain on “How to Design a Legal Clinic: Clinics as
an Element in the Transformation of Learning.”
78
79
80
Marie Soueid, a J.D. candidate at the American University Washington College of Law and Managing Editor
of the Human Rights Brief, wrote this alumni profile.
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Human Rights Brief
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http://hrbrief.org
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