Human Rights Brief

Volume 16 | Issue 1 Article 7

2008 International Legal Updates Carlin Moore American University Washington College of Law

Bryan Bach American University Washington College of Law

Megan Chapman American University Washington College of Law

Soumya Venkatesh American University Washington College of Law

Kate Kovarovic American University Washington College of Law

See next page for additional authors

Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Human Rights Law Commons, and the International Law Commons

Recommended Citation Moore, Carlin, Bryan Bach, Megan Chapman, Soumya Venkatesh, Kate Kovarovic, Angad Singh, and Hellia Kanzi. "International Legal Updates." Human Rights Brief 16, no.1 (2008): 33-43.

This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Authors Carlin Moore, Bryan Bach, Megan Chapman, Soumya Venkatesh, Kate Kovarovic, Angad Singh, and Hellia Kanzi

This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/7 Moore et al.: International Legal Updates

International Legal Updates

Un i t e d St a t e s major life activities include, but are not immigration-related measures in the last limited to, caring for oneself, perform- year. While some states are passing stricter U.S. Congress Overturns U.S. ing manual tasks, seeing, hearing, eating, laws enforcing current federal laws, others Supreme Court’s Interpretation of sleeping, walking, standing, lifting, bend- are passing more lenient laws that protect “Disability” ing, speaking, breathing, learning, reading, illegal immigrants’ rights. The American Disabilities Act Amend- concentrating, thinking, communicating, Like many states looking to curb ille- ments Act of 2008 (ADAAA) takes effect and working.” Under the ADAAA, the gal immigration, Tennessee’s legislature on January 1, 2009. The Americans with qualifying impairment does not need to revoked laws granting illegal immigrants Disabilities Act of 1990 (ADA) prohibits limit more than one major life activity driving certificates and has allowed law employers, among others, from discrimi- and can be episodic or in remission. The enforcement officers to act as state immi- nating against individuals with disabilities, ADAAA eliminates the Court’s interpre- gration police. Tennessee and other states, thus preventing their exclusion from soci- tation that an individual’s disability must such as Colorado, have passed laws that ety. Under the ADA, “disability” is a physi- restrict them from either a class of jobs or suspend or revoke business licenses of cal or mental impairment that substantially a broad range of jobs. The ADAAA also employers who knowingly hire illegal limits one or more major life activities. overrides the Court by prohibiting lower immigrants. One of the toughest, the Okla- Over the years, the U.S. Supreme Court courts from considering mitigating or cor- homa Taxpayer and Citizen Protection Act (the Court) strictly interpreted the meaning rective measures in their analysis. of 2007, makes it a felony to transport or of “disability,” prohibiting many individu- Although some worry that the ADAAA shelter illegal immigrants. It denies illegal als from receiving the benefits the ADA might increase lawsuits by increasing the immigrants access to driver’s licenses and provides. The ADAAA amends the ADA quantity of individuals qualifying as dis- public benefits such as rental assistance and directly overturns the U.S. Supreme abled, the clarified definitions will likely and fuel subsidies. It also forces govern- Court’s strict interpretation. lead to a decrease in litigation. The ADAAA ment contractors to check new employees Prior to the ADAAA, the Court’s two provides a clear, national mandate to fol- against a federal system called E-Verify to most significant cases regarding the ADA low which will prevent misinterpretations make sure they are legally eligible to work, were Sutton v. United Airlines and Toyota by employers that previously made com- with the penalty of losing their contracts Motor Manufacturing, Kentucky, Inc. v. pliance difficult. The ADAAA will protect for noncompliance. Currently, nine states Williams, which greatly limited the defi- individuals with conditions not previously require employers and state agencies to use nition of disability. The Court held that covered, such as carpal tunnel, depression, the E-Verify system. State Representative major life activities only included those and learning disabilities. Representatives Randy Terrill, who authored the Oklahoma activities of central importance to daily life Steny Hoyer and James Sensenbrenner, bill, argues that the bill saves taxpayers’ such as working. The use of corrective or two of the ADAAA’s sponsors, said in a money by not subsidizing services for ille- mitigating measures affected the Court’s joint statement, “With the passage of the gal immigrants. evaluation of whether an individual had a ADA Amendments Act . . . today, we Not only has Oklahoma’s bill negatively substantial limitation of a major life activ- ensure that the ADA’s promise for people affected the state economy, but it also rep- ity. For example, the Court did not con- with disabilities will be finally fulfilled. resents a far-reaching attempt to expand sider a person who was severely myopic Our expectation is that this law will afford the immigration enforcement power of disabled, such as in Sutton v. United Air- people with disabilities the freedom to states. Businesses, especially those in the lines, because that person could correct the participate in our community, free from agriculture industry, face worker shortages visual impairment. The Court further nar- discrimination and its segregating effects because they cannot employ anyone of rowed the definition of disability, requir- that we sought to achieve with the original unknown legal status. The resulting delays ing that the individual be significantly ADA.” in production particularly affect consumers restricted from performing either a class of in the agriculture and construction indus- jobs or a broad range of jobs as compared States Passing Conflicting tries. Construction industry leaders argue to the average person with comparable Immigration Laws that raised wages in Oklahoma, a state with training, skills, and abilities. The U.S. federal government has failed low unemployment, would lead to a net The ADAAA explicitly rejects the to significantly reform federal immigra- loss of jobs as some businesses close due to Court’s demanding standards to restore the tion laws to address the nation’s problem competition with other states allowing less original protection intended by Congress. with illegal immigration. State govern- stringent hiring practices. As businesses The ADAAA clarifies the definition of ments argue that the lack of national lead- struggle to adjust to the new law, legal disability, redefining “major life activity” ership has left them no other choice but immigrants and citizens have also lost jobs. and revising other aspects of the law. The to begin passing their own laws. Legisla- Many illegal immigrants and their family ADAAA specifies that, “in general . . . tures in 46 states have adopted over 244 members who are legal immigrants or U.S.

33

Published by Digital Commons @ American University Washington College of Law, 2008 1 Human Rights Brief, Vol. 16, Iss. 1 [2008], Art. 7

citizens are leaving Oklahoma in order to states must regulate immigration issues on to a Life Free of Violence (Ley General find a safer haven in nearby states such as their own — some being entirely contra- de Acceso de las Mujeres a un Vida Libre Missouri and Arkansas. dictory — the harder it will be to create de Violencia). The law requires “federal consensus in favor of uniform rules. Others and local authorities to prevent, punish Missouri and Arkansas are not the argue that the increase in state legislation and eradicate violence against women.” only states with more lenient immigration provides an opportunity for the federal The law also creates several defined cat- laws. To prevent employers from taking government to observe and study what egories of violence, including domestic, national origin into account in their hir- does and does not work. The problem with workplace, institutional, and gender-based ing decisions, Illinois recently attempted this “laboratory” approach is that it takes violence. Federal, state, and municipal to pass a law prohibiting businesses from time; as more time passes and states con- governments are also charged with specific using E-Verify to check the legal status tinue to take conflicting approaches, creat- responsibilities under the law. of employees. Advocates of the Illinois ing uniform federal legislation becomes law argue that the E-Verify system is more difficult. Additionally, legal battles Continued violence, however, has led flawed and inaccurate; legal immigrants are already taking place between the fed- many to conclude that Mexican authorities and citizens can lose their jobs if the eral government and states whose laws do not take the issue seriously. Amnesty system discovers any Social Security inac- conflict with the intent of the federal laws. International identified several obstacles curacies. Those who are here legally could For instance, the DHS sued the state of that women face when trying to report also be questioned or investigated by the Illinois for its ban on the use of the E-Ver- cases of domestic violence in a series of Department of Homeland Security (DHS) ify database, which Illinois State officials reports and articles in August 2008. Their because of a discrepancy. New York, in called flawed and unreliable. reports conclude that the federal and state contrast to Oklahoma, wants to offer driv- governments have failed in the implemen- er’s licenses to illegal immigrants and has The continuing debate over the enforce- tation and funding of the law. Women face already extended limited medical coverage ment of immigration laws and required officials refusing to accept complaints, to those battling cancer. A former New reforms is controversial and presents sig- deficient investigations, and poor enforce- York governor stated, “We’re left dealing nificant challenges. The new administra- ment of protective measures, an Amnesty with the reality of up to 1 million [illegal] tion faces divided and conflicting policies International report says. In some cases, immigrants in New York. . . . I would that are already in place. New attempts to officials have even asked women to deliver prefer to have [them] carrying a legitimate create uniform federal laws must analyze summons to their aggressors. form of identification, a driver’s license and balance the impact those laws will that allows them to get insurance, allows have on individual communities. Several states have passed additional our law enforcement to track their driving legislation to the 2006 General Law. In records and brings these drivers out of the some instances, however, the additional La t i n Am e r i c a shadows.” Some cities, such as New York state legislation has actually deterred City and Washington, DC, even consider Mexico: Women Face women from reporting cases of violence. themselves to be “sanctuary cities” by Continuing Violence Despite The Chiapas Law on Women’s Access to adopting a “don’t ask–don’t tell” policy; Passage of 2007 Law a Life Free of Violence, for instance, omits the cities do not require city employees, many of the violence-defining ­sections The 2006 National Survey of Domestic such as police officers, to report poten- and regulation responsibilities found in the Relations (Encuesta Nacional sobre la tial illegal immigrants. The Alaska state general national law, and lacks a budget. Dinámica de las Relaciones en los Hog- legislature passed a resolution prohibiting These characteristics led attorney Mar- ares 2006 — ENDIREH), conducted by state agencies from using their resources to tha Figueroa Mier of Grupo Mujeres de the United Nations Development Fund for enforce federal immigration laws. San Cristóbal, to conclude that with this Women (UNIFEM), in conjunction with “new law, we have law, but we have no Some states, like Florida and Alabama, the National Institute for Woman (Instituto protection.” are working with the federal government Nacional de las Mujeres — INMUJERES) through cooperative agreements instead and the National Institute of Statistics and Such was the case of “Martha,” first of attempting to pass legislation enforcing Geography (Instituto Nacional de Estadís- reported by Amnesty International in May federal laws. The agreements place local tica y Geografía — INEGI), revealed that 2008. Martha, a Mexico City resident, law enforcement officers under the direc- 67% of women in Mexico have experi- sought police assistance three times within tion of the DHS to exercise immigration enced some form of violence. The study a year, reporting that her husband was enforcement authority. The agreements concludes that nearly one in four Mexican punching her in the stomach so fiercely allow cooperation between the federal gov- women have been physically or sexually that she could barely breathe after each ernment and the states while leaving the abused by a present or past partner. The beating. The police told her that they could control over the enforcement with the fed- study seeks to raise awareness of violence do nothing unless she returned with cuts eral government. against women by providing statistical data and bruises. Martha explained that her on both the national and state levels. husband raped her on a weekly basis. The The conflicting state laws may pose a police, however, never arrested Martha’s problem for the federal government when Pandemic violence against women in husband, nor did they even bring him in seeking reform. Some fear that federal Mexico persists despite passage of the for questioning. Cases such as Martha’s standards will never be possible; the longer 2007 General Law on Women’s Access demonstrate that even after the adoption

34 http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/7 2 Moore et al.: International Legal Updates

of the 2007 law, curbing violence against distinction of nationality, race, religion, and human rights guarantees” during his women is still not a priority in Mexico. The class or opinion.” decade in power. National Institute for Women in Mexico reports that the rate of violence against The Colombian government initially Vivanco and Wilkinson’s expulsion has women in Mexico is twice the worldwide denied any use of the Red Cross emblem, led to international criticism of the Ven- average. “It’s considered natural,” laments but later said that rescuers unintentionally ezuelan government. The Inter-American the Institute’s executive secretary. While used the Red Cross symbol. Colombian Commission on Human Rights (IACHR) the passing of the anti-violence law was an President Álvaro Uribe described the sym- issued a statement that “this measure important first step in providing a measure bol’s use as an error. “This officer, upon affects the right to freedom of expression of protection to women, they will con- confessing his mistake to his superiors, of the representatives of that organization tinue to face the same obstacles as before said when the [rescue] helicopter was and constitutes an act of intolerance against until the Mexican government steps in about to land . . . he saw so many guerrillas criticism which is an essential component to enforce it and make women’s safety a that he went into a state of angst,” Uribe of democracy.” The International Com- priority. explained. mission of Jurists also stressed that “such a move is an attack on freedom of expression Colombia Misuses Red Cross Photos taken before the rescue mis- and legitimate defense of human rights.” Emblem During Betancourt Rescue sion and video taken during the rescue, however, show one man of the rescue In a televised statement, the Vene­ The International Committee of the Red team donning the Red Cross bib moments zuelan Foreign Ministry said that Vivanco, Cross (ICRC), in an August 6, 2008 state- before the mission began. The bib in the a Chilean national, “illegally interfered in ment, condemned the misuse of its emblem photos clearly shows the Red Cross sym- the country’s internal affairs,” and that the by Colombian forces during the 2 July bol. The videos show the same man stand- expulsion “is a clear message to whoever 2008 rescue mission that liberated fifteen ing next to FARC generals throughout the intends to come here and plot from within.” captives from the Revolutionary Armed rescue mission. Regardless of whether the In response, the Chilean Vice Minister of Forces of Colombia (FARC), including emblem’s use was unintentional, maintain- Foreign Affairs called the expulsion a dis- former Colombian senator and one-time ing the neutrality of the emblem is vital proportionate reaction. presidential candidate Ingrid Betancourt. to the ICRC’s missions around the world. The expulsion of the HRW directors is Her release sparked an international cel- Violations endanger the ICRC’s ability yet another instance of the Chávez govern- ebration. Betancourt, held captive since to safely serve populations in situations ment curtailing freedom of expression. In 2002, described her rescue as “a miracle,” of violence and armed conflict. The Red May 2007, the Venezuelan government and “a moment of pride for Colombia.” Cross emblem may only be deployed to protect medical units and establishments. denied a broadcasting license renewal for Colombian forces posed as aid work- These regulations apply both in situations the nation’s oldest private television chan- ers transporting the captives by helicopter of external and internal conflict. Using nel, Radio Caracas Televisión. The station from one FARC camp to another. The res- the emblem in a deceitful way constitutes was consistently critical of the Chávez cue mission was the result of years worth perfidious use and is a war crime. Main- administration. The United States govern- of intelligence gathering and has been taining the emblem’s neutrality is of para- ment, the European Union, the IACHR, considered a daring success. The Colom- mount concern in protecting the safety of the Chilean Senate, the EU Parliament, bian government, however, has since faced humanitarian aid workers across the globe and the Inter-American Press Association stiff criticism after allegations surfaced and ensuring they will be able to continue criticized the decision. that a member of the rescue team misused their work. Under Chávez, the Venezuelan govern- the Red Cross emblem during the rescue ment increased both the scope of speech mission. Venezuela Expels Human Rights Watch Activists After and broadcasting offenses and the penal- The original Geneva Convention, Critical Report ties for committing these offenses. Human adopted on 22 August 1864, established rights watchdogs argue that these tough- the Red Cross symbol, and articles 37, 38, On September 18, 2008, Venezuela ened laws have been used to contravene 39 and 85 of Additional Protocol govern expelled Human Rights Watch (HRW) international norms of freedom of expres- the symbol’s use. The articles establish Americas Director José Miguel Vivanco sion and have stacked the deck against that “feigning of protected status by the and Deputy Director Daniel Wilkinson. critical opposition. use of . . . emblems” of neutral parties is Earlier that day, Vivanco and Wilkin- a violation of international humanitarian son presented their report “A Decade law. The Commentary on Article 38 of Under Chavez: Political Intolerance and the Geneva Convention establishes that Lost Opportunities for Advancing Human neutral emblems such as the Red Cross Rights in Venezuela.” The HRW report are intended “to signify one thing only — concluded that the expanded human rights something which is, however, of immense guarantees under the 1999 Constitution importance: respect for the individual who have “been largely squandered.” Vivanco suffers and is defenseless, who must be also stated that that President Hugo Chávez aided, whether friend or enemy, without had “weakened democratic institutions

35

Published by Digital Commons @ American University Washington College of Law, 2008 3 Human Rights Brief, Vol. 16, Iss. 1 [2008], Art. 7

Af r i c a International pressure has played an African Union Finalizes Plan for important part in moving Senegal forward. Merger of African Courts Complaints Against Hissène Habré In May 2005, the United Nations Com- Filed with Senegalese Prosecutor mittee Against Torture ruled that Senegal At the 11th Summit of the African In July 2008, the Senegalese Parlia- was in violation of its treaty obligations Union (AU) in Sharm El-Sheikh, Egypt in ment took final steps in removing legal under the Convention Against Torture, to early July 2008, the AU adopted the draft barriers to prosecute former Chadian dicta- which it is a party, since it failed to either Protocol on the Statute of the African Court tor Hissène Habré for torture and crimes prosecute or extradite Habré. Senegal then of Justice and Human Rights (ACJHR), against humanity. Under pressure from the appealed to the AU, requesting advice drafted in April 2008 by justice ministers European Union (EU), the African Union on how to proceed. In July 2006, the AU of the AU member states. The statute will (AU), and international non-governmental called on Senegal to prosecute Habré “in enter into force 30 days after ratification organizations (NGOs), Senegal took the the name of Africa.” by 15 member states. The ACJHR will be first step in February 2007 and passed the main judicial organ of the AU and will The Senegalese government, including legislation allowing it to prosecute cases merge and replace both the African Court President Abdoulaye Wade and the Justice of genocide, crimes against humanity, war of Justice (ACJ) and the African Court of Minister Madické Niang, has appeared crimes, and torture, even when committed Human and Peoples’ Rights (ACHPR). supportive of prosecution despite a highly outside of the country. The constitutional politicized environment. In August 2008, According to the draft protocol, the new amendment passed in July 2008 allows Chadian courts sentenced Habré and 11 ACJHR will be composed of 16 judges laws such as this one to be applied retroac- others to death in absentia for participating split evenly between two chambers: a Gen- tively, as is necessary for the legislation to in or supporting the February 2008 coup eral Affairs Section and a Human Rights apply to crimes allegedly committed dur- attempt against Chadian president Idriss Section. The Human Rights Section, like ing Habré’s eight-year rule (1982–1990). Deby Itno. Upon receiving this news, the ACHPR, will have jurisdiction to hear With a legal pathway finally cleared Minister Niang publicly expressed surprise cases alleging violations of rights granted for prosecution, fourteen victims of abuse about the Chadian conviction: “If Hissène under the African Charter on Human and under Habré’s regime, including two Sen- Habré was judged for the same deeds Peoples’ Rights, the Charter on the Rights egalese merchants, filed complaints with for which he is prosecuted in Senegal and Welfare of the Child, Protocol on the a Senegalese prosecutor on September . . . he could no longer appear before any Rights of Women in Africa, or any other 16, 2008. The complaints detail politi- court in the world.” Because Habré was human rights instrument ratified by the cal arrests, detention, torture, and other not charged for acts committed in Chad State in question. abuses suffered at the hands of Habré’s between 1982 and 1990, the principle of double jeopardy does not apply. While In months leading up to the AU Sum- political police, the DDS (Direction de la mit and since adopting the Protocol, NGOs Documentation et de la Sécurité). “The the principle of double jeopardy is not uniformly applied worldwide, one fear is have criticized a key element of the pro- evidence shows that Habré was not a dis- posed structure: the refusal by the drafting tant ruler who knew nothing about these that if a Chadian prosecutor were to charge Habré for crimes committed between 1982 justice ministers to grant individuals the crimes,” says Reed Brody, a lawyer at right to directly access the new court. In Human Rights Watch. “Habré directed and and 1990, Senegal might refuse to pros- ecute him altogether. a June 2008 editorial, Chidi Odinkalu of controlled the police force which tortured the Open Society Institute’s Justice Initia- those who opposed him or those who sim- Among its own citizens, the Senegalese tive and Nobuntu Mbelle of the Coalition ply belonged to the wrong ethnic group.” government has faced criticism for “modi- for an Effective African Court on Human After being deposed in a 1990 military fying its national constitution to satisfy the and Peoples’ Rights (the Coalition) wrote: coup, Habré fled to Senegal in 1991. Vic- desire for vengeance of the Europeans and “That Africa needs this court is not in tims of torture under his rule have been Libyans against Habré, who had chased doubt. In many states, national laws are pressing for his prosecution ever since, them from his country,” and for “selling outdated, non-existent or inadequate; courts through NGOs such as the Chadian Associ- an old African head of state to white slave are ineffective or inaccessible; and public ation of Victims of Political Repression and drivers for 18 million francs,” a reference prosecutions have become too politicized Crime. In 2000, Senegal indicted Habré, to the financing promised by the EU to or weakened by self-indulgent politicians. . but the process stalled due to political and assist with the costs of a future trial. Along . .” However, the two authors continue, the legal concerns, particularly that Senegal’s with such editorials, Senegalese news­ new, merged court “has design flaws simi- laws at the time did not allow prosecution papers have in recent weeks also published lar to those that have made it impossible for for crimes committed outside the country. the statements of Habré’s legal defense the [ACHPR], established a decade ago, to Disappointed, victims and their advocates team, which claims that the victims’ com- receive any case to date. . . . By denying turned to Belgian courts, which after a plaints are aimed at the DDS rather than individual victims access to the new court, four-year investigation, in September 2005 Habré, and that, even after the constitu- governments will close an avenue through charged Habré with crimes against human- tional amendments, it will be “impossible which atrocities might be addressed, effec- ity, war crimes, and torture. Senegalese for Senegalese justice to start new prosecu- tively rendering the court still-born.” authorities arrested Habré but refused Bel- tion against their client.” gium’s extradition request.

36 http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/7 4 Moore et al.: International Legal Updates

Another serious design flaw, accord- Problems Continue in Camps for ratified the ICERD in 1997 but has failed ing to ACHPR Judge Fatsah Ouguergouz, Those Displaced by South Africa’s to adhere to it. Over 400,000 Ismailis is the impossibly broad mission of the Xenophobic Violence live in the southern province of Najran, merged court. Speaking at the Advocacy where they have experienced increased Before Human Rights Bodies: A Cross Months have passed without resolu- ill-treatment from the current governor’s Regional Agenda conference at American tion to the wave of xenophobic violence administration. University Washington College of Law in killing 60, injuring hundreds, and displac- October 2008, he expressed concern that ing thousands of foreigners — most from The HRW report focuses on the con- the ACJHR may not be “fully equipped” elsewhere in Africa — residing in South sequences of the April 2000 arrest of to deal with a jurisdiction roughly cor- Africa. The South African government Ismaili cleric Muhammad al-Khayyat for responding to that which Europe divides established shelters for victims and those “sorcery.” In conjunction with the arrest, between four bodies: the European Court targeted in the attacks. Originally, the shel- the police confiscated religious books and of Human Rights, the European Court of ters or camps established for victims were other belongings from students inside an Justice, the International Court of Justice, given a two-month timeframe, and govern- Ismaili mosque. Witnesses heard shots and the UN Administrative Tribunal. ment officials readily admitted that this fired and at least one person was injured, was not a long-term solution. “We could though sources are unclear on whether the Since the ACJHR protocol’s adoption, have a dilemma,” said Thabo Masebe, a injured was a student or an officer. The the Coalition and regional NGOs have spokesman for the Gauteng local govern- event triggered a demonstration outside lobbied African nations to ratify it, while ment. “We cannot force people to go back the residence of Governor Prince Mish’al. at the same time continuing to criticize to their home countries [or reintegrate] and The local police arrived and exchanged the design flaws. For example, the Nige- we cannot establish permanent shelters.” fire with the protestors, killing at least one rian Bar Association, a Coalition member, person from each side. After the demon- published a position statement urging the Although most local governments stration ended, the police arrested between Nigerian government to adopt the single planned to close camps in mid to late 400 and 500 people, some of whom had legal instrument establishing the ACJHR August, many camps have remained open. not even participated in the protest. The and simultaneously supporting ongoing Civil society organizations called for the report also admonishes the Saudi Arabian negotiations “to assure the right of indi- camps to remain open until the government government for preaching religious toler- vidual access to the proposed court.” publishes a detailed reintegration plan. ance worldwide while systematically dis- In Gauteng Province, groups obtained an criminating against its own citizens. Fears that the ACJHR will prove inef- interim order from the Constitutional Court fective as a forum for protecting human to keep camps open until at least Sep- Many of the detainees arrested after rights in Africa arise from the disappoint- tember 30. On October 1, the provincial the demonstration experienced inhumane ing progress of its predecessors. The devel- government shut down the Glenada Camp conditions in prison. All of the detainees opment of a pan-African human rights and began shutting down two remaining interviewed by HRW had been tortured. court has moved at a snail’s pace since it camps. Prisoners also faced harsh interrogations, was first proposed in 1961. In 1981, the beatings, electric shock treatments, and African Charter on Human and Peoples’ In Gauteng, many are electing to return sleep deprivation. Guards suspended one Rights was established, followed by the to their home countries rather than reinte- man from a cable for hours while they beat establishment of the African Commission grate. The opposite is true in Western Cape him. As a result of being tortured, detain- in 1987. Since the Commission lacked Province, where approximately 90 percent ees falsely confessed to committing acts power to render or enforce decisions on opted for reintegration, despite reported of violence during the demonstration. The complaints brought before it, the ACPHR violence towards some returning to their Saudi Arabian courts also participated in was conceived in 1998. South African communities. discriminatory trials and judgments against prisoners. Detainees faced secret trials, Not until late 2003, however, did the Mi d d l e Ea s t a n d No r t h Af r i c a some of which were unknown even to requisite number of members ratify the the prisoner on trial. Some received their protocol. The court’s protocol came into Saudi Arabia: Police and sentences when they appeared at court, force in 2004; judges were not appointed Courts Discriminate Against after being forced to sign false confes- until 2005; and to date, only 24 of the Religious Minority sions. King Abdullah pardoned many of 53 AU member states have ratified the In a recent report, Human Rights Watch those detained during an official visit to the ACPHR, which has yet to hear a case. As (HRW) states that government officials in region, but seven detainees are currently of early 2008, just 15 AU members had Saudi Arabia have subjected members of a still in prison. ratified the protocol of the ACJ, created Shi’a sect, the Ismailis, to secret detentions, in 2003. In April 2008, Ismaili leader, Shaikh torture, and unfair trials since 2000. As a Ahmad bin Turki Al Sa’b, led a delega- signatory to the International Convention tion to present a petition to King Abdullah, on the Elimination of All Forms of Racial detailing the condition of Ismailis in Najran Discrimination (ICERD), Saudi Arabia is and requesting the dismissal of Prince bound to ensure that its law enforcement Mish’al. One month later, Al Sa’b was and judicial system do not discriminate arrested, and six months later, he remains on the basis of ethnic origin. Saudi Arabia

37

Published by Digital Commons @ American University Washington College of Law, 2008 5 Human Rights Brief, Vol. 16, Iss. 1 [2008], Art. 7

detained without charge. In response to the UN treaties that the Iranian government sination of President Anwar Sadat. Under incidents of April 2000, HRW urges the has ratified. Signatories to the Convention emergency law, the Egyptian government Saudi government to open an investigation on the Rights of the Child and the Inter- can detain people without charges and can into the treatment of detainees arrested in national Covenant on Civil and Political use emergency courts. Emergency courts the aftermath. HRW also urges the Saudi Rights have promised not to execute any do not follow legal procedures as carefully government to adhere to the standards of offenders under the age of 18. Iran, how- as ordinary courts do, and those on trial ICERD and to establish a national human ever, identifies adulthood as beginning at often receive sentences without the ability rights monitoring body to investigate the puberty, and has set the age as 15 for boys to adequately defend themselves. abuses suffered by the Ismailis, as well as and nine for girls. the legal consequences of the April 2000 More than 150,000 workers across demonstration. In November 2008, King Iran’s death penalty laws provide the Egypt have been involved in strikes, sit- Abdullah removed Prince Mish’al from his courts with a wide-reaching authority over ins, and other demonstrations in an attempt post as governor of Najran. This occurred how executions are carried out. Iran’s to increase the minimum wage. The Egyp- after continued protests by Ismailis about legal system authorizes the death penalty tian government banned strikes on April 5, the treatment of detainees arrested in April for a number of crimes, including insult- 2008 to maintain order. A demonstration 2000 and the release of HRW’s report ing the Prophet, murder, and social crimes of textile-factory workers was scheduled condemning Prince Mish’al’s abuse of the like adultery. With murder cases, the law by labor organizers to take place the next Ismailis. Saudi officials, however, continue allows for the practice of qisas-e-nafs, or day, but was called off in response to to mistreat Ismailis. retribution. Victims’ family members can the ban. Violent demonstrations occurred pardon the criminal, ask for retribution, anyway, leading to large-scale clashes Iran’s Execution Rate Tripled in or accept compensation in place of retri- between security forces and demonstra- Three Years bution. In recent years, however, Iran’s tors. At least three people, including one judicial system has shown a disregard for school boy, died after being shot by law Iran’s execution rate has more than the requirements of the law. Iran’s lack of enforcement officials. Many more protes- tripled under the administration of Presi- transparency does not provide sufficient tors were wounded and over 250 people dent Mahmoud Ahmadinejad. Iran has the notice about imminent executions. Ira- were later arrested, including the 49 people second highest execution rate in the world, nian law requires the family and lawyers who are now awaiting the continuation of surpassed only by China. In recent years, of the criminal to be notified at least 48 their ­trials before the emergency court. In as Iran’s execution rate has increased, the hours before the execution. In Behnam May, the state of emergency was set to international community has heavily criti- Zare’s case, however, neither his family expire. Despite formal denials from the cized the Iranian government for its lack of nor his lawyer was notified until after his Egyptian government that it was going to transparency in death penalty proceedings execution. be renewed, Parliament approved a two and its continued execution of juvenile year extension of emergency law in May. offenders. In particular, both the European Iran’s death penalty system provides Union (EU) and the United Nations (UN) the government with unchecked power The 49 detainees were subjected to have expressed concern over Iran’s execu- over the lives of those on death row. With harsh interrogation and torture while in tion of juvenile offenders. hundreds of people on death row, including prison. They were blindfolded by guards 130 children, Iran’s human rights crisis has for nine days, beaten, faced electric shocks, In the three years since Ahmadinejad escalated drastically under the administra- and received threats to their family mem- became the president of Iran, executions tion of President Ahmadinejad. bers. Interrogators obtained forced con- have drastically increased. In 2005, when fessions from them that they had thrown Ahmadinejad took office, Iran executed 86 Torture and Unfair Trials for stones at the police, though some of the people. In 2007, that number had increased Demonstrators in Egypt detainees maintain that they were not even to 317. As of September 2008, the UN present at the demonstrations. Their law- estimated that the Iranian government had Forty-nine people in Egypt are await- yers complained about their treatment, but already executed 220 people. Iran is also ing the continuation of their trials after no action was taken. one of only a few countries that execute authorities arrested them for participating juvenile offenders, a practice that accounts in a series of protests on April 6, 2008, The trials in front of the emergency for two-thirds of all juvenile executions in the city of Malhalla. The detainees are court will move forward with potentially worldwide in the past three years. Human being tried by the Egyptian government tragic results. The courts have charged the Rights Watch (HRW) estimates that the in front of an emergency court and have 49 accused individuals with illegal posses- Iranian government has executed at least faced severe ill-treatment at the hands of sion of firearms, violent resistance, assault six juvenile offenders so far this year with prison guards during their imprisonment. on a police officer, assembly of more than another 120 on death row. In August, Beh- In September 2008, Amnesty International five people with the aim of disturbing nam Zare and Seyyed Reza were executed released a statement urging the Egyptian public order, ransacking and theft, and for murders they committed when they government to transfer the cases to an deliberate destruction of public and pri- were 16 and 15 years old, respectively. ordinary court and to open an investiga- vate property. The detainees may receive tion into the nature of the arrests. Egypt up to 15 years in prison if convicted of Iran’s law permitting the execution of has renewed its state of emergency almost these charges. Amnesty International has juvenile offenders is in direct violation of continuously since 1981 after the assas- criticized the emergency courts for using

38 http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/7 6 Moore et al.: International Legal Updates

confessions obtained through torture and ing to religion, ethnicity and level of New Concerns Over Rendition in for their judicial proceedings being gener- education. U.K., Other European Countries ally below standard. Unlike in a non-emer- gency legal system, the emergency court Many consider the fingerprinting to be In the midst of the United States’ war rulings cannot be appealed and are final a violation of the International Convention on terror, several European countries have once ratified by President Hosni Mubarak, on the Elimination of All Forms of Racial been accused of turning a blind eye to condemning detainees to their fate once Discrimination (ICERD), a United Nations America’s rendition tactics and allowing they receive their sentence. (UN) convention committing its members them to take place on European soil. In to the elimination of racial discrimination February 2007, members of the European and the promotion of understanding among Parliament (MEPs) found evidence that Eu r o p e races. Italy signed the convention in March the United States completed some 1,245 European Parliament Condemns 1968 and ratified it in January 1976, prom- covert flights in which detainees were Italy’s Treatment of the Roma ising “[e]ffective remedies against acts of moved to states where they could face racial discrimination which violate indi- torture. Despite persistent claims to the Italy’s move to fingerprint its entire vidual rights and fundamental freedoms.” contrary, the MEPs’ official report stated Roma population has drawn harsh criti- that it was unlikely that European govern- cism from the European Parliament (EP), The fingerprinting initiative has sparked ments were unaware of rendition activities which branded the effort a “direct act of particularly loud protest from the EP, on their territory. racial discrimination.” Europe is currently which held a Roma Summit in Brussels home to over 10 million Roma, a com- in September 2008. This Summit marked Recent investigations by the Council of munity who currently constitute the largest the first time that EU institutions, national Europe and the European Parliament (EP) ethnic minority in the European Union governments, and European civil society have reignited controversy over Europe’s (EU). Roughly 150,000 Roma have moved organizations came together to discuss the role in rendition. In 2007, the Council of to Italy, composing almost 10 percent of ongoing discrimination of the Roma. In Europe released a statement saying, “there the population and living in some 700 a vote of 336 to 220, members of the EP was now enough evidence to state that encampments. (MEPs) adopted a resolution calling on secret detention facilities run by the CIA Italy to immediately cease its fingerprint- did exist in Europe from 2003 to 2005, in The Roma have encountered significant ing practices. The resolution holds that the particular in Poland and Romania.” Dick resistance from the Italian community. fingerprinting is an act of discrimination Marty, a Swiss senator who led the Coun- The 2007 murder of an Italian woman, in based on race and ethnic origin, and that cil of Europe inquiry, says NATO allies which the main suspect was a Romanian the EP “condemn[s] utterly and without entered into a secret agreement allowing migrant of Roma descent, sparked a wave equivocation all forms of racism and dis- the CIA to operate these jails. Marty also of vigilante justice against the community crimination faced by the Roma and those declared that Poland was a CIA black site that included frequent fire bombings and seen as ‘gypsies.’” where eight “high-value detainees” such as mob attacks. Khalid Sheikh Mohammed, alleged mas- Although the resolution is not binding, termind of the 9/11 attacks, were interro- But the strongest criticisms are of the lawmakers have urged the EC to inves- gated. Prosecutors in Poland did not launch Italian government’s treatment of the Roma. tigate whether the fingerprinting policy an official investigation of these claims The Italian government recently imple- violates European law. Commission presi- until August 2008. mented a plan to fingerprint the country’s dent José Manuel Barroso acknowledged entire Roma population, calling the move increasing EC concern over the practices Several human rights organizations are part of a broader crackdown on crime and and issued an urgent appeal for united now calling for a similar investigation in a push for Roma children to attend school European action: “The problem which we the U.K., specifically focusing on concerns instead of begging. The fingerprinting ini- are facing together ­— as political lead- over the use of a U.S. base on the British- tiative has already begun, and Italian For- ers and citizens, as members of majority owned island of Diego Garcia. Shortly after eign Minister Franco ­Frattini defends the societies and as Roma — is one of great the 9/11 attacks, reports began to surface practice, claiming it “does not target ethnic urgency.” that U.S. planes seen in British airports groups and is not inspired by racism.” and territories were being used to transport In response, Italy has watered down detainees to detention centers overseas. In what some considered a surprising its practice, only requiring the fingerprint- The British government repeatedly denied move, the European Commission (EC) ing of those who cannot provide official these claims, releasing statements that the approved the plan, suggesting that the documents. The international community U.S. had not requested permission for a fingerprinting measures are not discrimi- remains concerned with the impact these rendition through U.K. territory or airspace natory or in breach of EU standards. An potentially discriminatory tactics may have at any time. EC spokesperson stated that the plan only on the Roma community. A delegation aimed to identify persons who cannot be of MEPs is scheduled to travel to Italy to These statements preceded a surpris- identified in any other way, and would observe the situation firsthand. ing announcement made by David Mili- exclude data relating to ethnic origin or band, Secretary of State for Foreign and religion. Nonetheless, Italian newspapers Commonwealth Affairs, in February 2008. recently published pictures of officials Miliband admitted that on not one but two taking fingerprints and filing them accord- occasions, Diego Garcia was now known 39

Published by Digital Commons @ American University Washington College of Law, 2008 7 Human Rights Brief, Vol. 16, Iss. 1 [2008], Art. 7

to have been used for rendition flights. In intends to attack a military target where Aditi Sharma, maintains her innocence. an effort to pacify both local and interna- there is likely to be excessive civilian While consent to the procedure is required, tional concern, Miliband announced an damage relative to the expected gain, the the looming threat of abusive police inter- ongoing collaborative effort between his country should not attack. It appears that rogations may leave the accused little office and multiple human rights organi- neither Russia nor Georgia fully undertook choice but to accept. zations to investigate any other flights of their duty of civilian protection. Reports concern. have emerged of Russian forces dropping The states of Maharashtra and Guja- bombs on a convoy of passengers fleeing rat have established electroencephalo- Groups such as Amnesty International Georgia’s Gori district, and of Georgian gram (EEG) labs for prosecutorial use and are calling for further action, stating, soldiers driving and firing tanks in resi- about seventy-five suspects have currently “[n]ot a single measure has been taken dential areas. undergone the test. The June conviction, to further prevent European involvement however, was the first time a suspect was in U.S. renditions and secret detentions.” Despite the ICC’s ongoing investiga- convicted based upon the test. Despite calls for immediate investigation tion, both Russia and Georgia have sought and prevention, other European countries other legal courses of action. Russian pros- The BEOS test consists of placing with alleged participation such as Italy and ecutors recently launched their own inves- electrodes from an EEG on the scalp. The Germany have yet to launch official inves- tigation into the deaths of 133 civilians EEG processes electrical brain activity tigations into their own involvement. they say were killed by Georgian forces. through computer software. Then, investi- Although this number is significantly lower gators read aloud the actions and details of Russia-Georgia Conflict Raises than initial estimates of up to 1,600 deaths, the crime and analyze the resulting brain Multiple Human Rights Issues Russia still claims they have a potential waves for patterns of recognition. The case against Georgia for committing acts developers of the test insist on its accu- The recent conflict between Russia of genocide. racy. The test has not been independently and Georgia has both sides alleging brutal repeated, however, nor have its results been human rights violations in the most seri- In return, Georgia has filed a lawsuit published in any renowned peer-reviewed ous confrontation between the two nations with the International Court of Justice scientific journals. since their 1992 war. After several months (ICJ) alleging that Russia attempted to eth- of low-level conflict, Georgian troops nically cleanse Georgians in the breakaway Dr. Rosenfeld, a neuroscientist and launched an offensive attack against pro- regions and killed at least 69 civilians. psychologist at Northwestern University, Russia separatists in the province of South Georgia maintains that Russia breached asserted that such technologies are not Ossetia in August 2008. Russia responded the Convention on the Elimination of All credible without peer review and inde- by reinforcing their troops already sta- Forms of Racial Discrimination, a conven- pendent replication. He further asserted, tioned in South Ossetia, who then entered tion that entered into force in 1969, which “The fact that an advanced and sophis- Georgia proper in a move many interpreted commits all parties to the elimination of all ticated democratic society such as India as a violation of the territorial integrity of forms of racial discrimination. Both Russia would actually convict persons based on the sovereign state. A brief but violent war and Georgia are parties to the Convention. an unproven technology is even more erupted. incredible.” The technique is also suscep- Although the fighting between Russia tible to criticisms that brain signals arising Although French president Nicolas and Georgia has ceased for the time being, from actual memories versus illusory ones Sarkozy mediated a ceasefire that has the international community recognizes are largely indistinguishable. In a criti- seemingly quelled the countries’ fight- that the situation remains volatile. As rep- cal analysis of the brain scan procedure, ing, Russia and Georgia are now locked resentatives of the European Union arrive Dr. Rosenfeld underscored the fragility of in a heated debate in which each side is in Georgia to monitor the security situa- memory as an entity susceptible to distor- accusing the other of breaching interna- tion, human rights organizations are call- tion and falsehoods. tional humanitarian law. The International ing on the two nations to maintain peace. Criminal Court (ICC) is currently investi- In addition to the multifarious scientific gating these claims, and faces a challenge problems of the BEOS test, this technology So u t h a n d Ce n t r a l As i a in determining fact amidst accusations raises important legal-ethical issues of cog- of “indiscriminate violence, murder and India Becomes First Country nitive liberty. Novel issues are cropping genocide.” Researchers now suggest that to Convict Suspect Based on Brain up due to the use of many emerging tech- both sides may have violated the laws of Scan nologies, leading to questions regarding war in using violence that was dispropor- a state’s power towards the prosecutorial In June 2008, a court in Pune, India, tionate, discriminatory, or both. use of information derived from a defen- convicted a murder suspect partly based on dant’s brain activity. Critics of techniques As these legal investigations get under- evidence from a brain scan, sentencing her such as the BEOS test fear the violation way, human rights organizations are grow- to life in prison. Using results from a Brain of cognitive liberty is a slippery slope ing increasingly concerned as stories Electrical Oscillations Signature (BEOS) towards growth in state power and may surface of brutal human rights violations on test as well as a polygraph test, Judge S.S. lead to criminalization of thoughts detected both sides. A guiding rule of international Phansalkar-Joshi asserted that the suspect through advanced neuro-technologies such humanitarian law remains that dispropor- had “experiential knowledge” that only as fMRI (functional Magnetic Resonance tionate attacks are prohibited; if a country the perpetrator could possess. The convict, Imaging) or EEG. 40 http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/7 8 Moore et al.: International Legal Updates

If independent replications and robust of the group through the legitimate submis- lishes independent commissions to admin- peer reviews prove the BEOS technology sion of registration requests. This catch-22 ister the police, judiciary, and elections reliable, its potential to aid in criminal presents significant challenges to religious departments, thereby reducing the execu- prosecution and defense may be scruti- groups who may forgo registration for fear tive’s power. Weliamuna also represents nized in light of ethical and legal consid- of persecution, thus risking a future crack- controversial cases and some of his clients erations. By convicting a suspect based on down for illegal religious activity. have become embroiled in the controver- the BEOS test, the Pune court has not only sies. For example, Lalith Jarapakse, one preemptively deemed the technology reli- The Uzbek state is generally more of Weliamuna’s clients, allegedly received able before a scientific consensus, but also accepting of mainstream religions such threats and demands to withdraw his com- brushed aside the ethical-legal questions as Islam, the majority faith. Neverthe- plaint regarding police torture. such technologies present. less, mosque-goers in Karakalpakstan have reported plain clothed security personnel After the attack, high-level members of Religious Liberty in Uzbekistan surveilling mosques, particularly during the government, including President Mahi- Continues to Suffer the holy month of Ramadan. nda Rajapaksa, met with the Bar Associa- tion of Sri Lanka to discuss the incident. The trial of Aimurat Khayburahmanov The U.S. Department of State Interna- President Rajapaksa urged an expedited began on August 15, 2008 with charges tional Religious Freedom Report of 2008 investigation and sought to dispel allega- of participation in a religious extremist criticizes the severe lack of religious free- tions that the government played a role organization and the unauthorized teaching dom within Uzbekistan and maintains the in the attack. Over 300 lawyers displayed of religion. Uzbekistan’s strict penal code designation of Uzbekistan as a “Country of solidarity with Weliamuna in a demonstra- criminalizes religious teaching without Particular Concern” under the International tion demanding an effective investigation prior approval from the state. The charge Religious Freedom Act. and prosecution of the perpetrators. of religious extremism is considered to be After the 2005 Andijan massacre, unfounded, however, because it is regu- Numerous organizations have con- where government forces killed hundreds larly attributed to entities that the Uzbek demned the attack, including the Inter- of protestors, the Uzbek authorities under state deems a threat, such as radical Mus- national Commission of Jurists. They President Karimov have been especially lim organizations. describe the context of the attack as one concerned about maintaining control and in which violence against dissidents is As a Protestant, Khayburahmanov ensuring compliance with all laws. As rising. For instance, Sugath Nishanta Fer- belongs to a small minority group within the Uzbek government continues to cir- nando, a plaintiff in a torture and bribery Uzbekistan that has had difficulty obtain- cumscribe religious activity within the case against the police, was assassinated ing governmental approval to practice their narrow confines of state approval, Uzbeks on September 20, 2008 and his lawyers religion. Religious registration is particu- continue to suffer from punitive measures received threats demanding a withdrawal larly difficult in the autonomous region of designed to enhance state authority by of the case. Karakalpakstan, where Khayburahmanov’s curbing religious freedom. trial took place. The region has not regis- Transparency International identified the tered non-Muslim or non-Russian Ortho- Prominent Sri Lankan Human UN Convention against Corruption, which dox groups since 2005. Rights Lawyer Attacked Sri Lanka has ratified, as an international legal instrument obliging the govern­ment Judge Yelena Medetova dropped the On September 27, 2008, a grenade to investigate the attack against Welia- charges brought under Article 244 Section exploded in the home of leading Sri Lankan muna. Nevertheless, it is uncertain whether 2 of the Uzbek criminal code prohibiting human rights lawyer and anti-corruption the government will rigorously investigate participation in religious extremist groups. activist, J.C. Weliamuna. Fortunately, the attack. In March 2008, an independent Judge Medetova also granted amnesty Weliamuna and his family were not hurt advisory group, titled The International regarding religious instruction without in their heavily guarded area of Colombo. Independent Group of Eminent Persons prior governmental approval. Such leni- Three days after the attack, an unidentified (IIGEP), ceased its work advising the gov- ency is rare where political trial verdicts person tried to enter the Sri Lankan office ernment’s investigative branch on robust are determined by state authorities. The of Transparency International, (an anti- investigations of human rights violations. reason for the leniency in Khayburah- corruption international NGO) of which The IIGEP stopped its work as a result of manov’s case is unclear. Weliamuna is executive director. The man the government’s ­obdurateness in adopting asked for a person who had never before the group’s recommended reforms. Legally registering with governmental worked in the office and security prevented authorities has proven to be a losing battle the man from entering while Weliamuna Although it is uncertain who planned for many religious minorities. Registration escaped. Weliamuna has since gone into and executed the attack upon Weliamuna, requirements include providing a list of at hiding. the incident may be indirectly linked to the least one hundred group members and a government’s long and bloody battle with registration address. If a religious group Weliamuna contends that the attack was the insurgent group, the Liberation Tigers meets the requirements but fails to obtain politically motivated and directly related to of Tamil Eelam (LTTE). The government governmental approval, the State may eas- his professional work. Weliamuna advo- has been harsh with those critical of its ily decide to persecute the group given that cated for the Seventeenth Amendment to conduct against the LTTE, as evidenced it has already obtained the specific names the Sri Lankan constitution, which estab- by its prosecution of J.S. Tissainayagam. 41

Published by Digital Commons @ American University Washington College of Law, 2008 9 Human Rights Brief, Vol. 16, Iss. 1 [2008], Art. 7

­Tissainayagam was a journalist whose junta in Burma, has used its position on the tional community have called for Minister critical reporting led to charges of “bring- Security Council to obstruct any discussion Yasuoka to reconsider the national policy. ing the government into disrepute” under or action by the UN against the Burmese Non-governmental organizations such as the Prevention of Terrorism Act. The Sri regime. Amnesty International have asked Japan Lankan government is concerned, not only to comply with United Nations General about its image, but also about its legiti- This is not to say that the Security Assembly resolution 62/149, which calls macy in fighting the insurgency. Whether Council has been helpless in the matter for a universal moratorium on the utiliza- the perpetrators of the Weliamuna attack of child soldiers elsewhere. In 2003, the tion of the death penalty. were the state security forces, nationalist Security Council successfully pushed the criminal gangs or other groups, one inten- governments of the Ivory Coast and the In 2006, the United Nations Human tion may be to intimidate voices that osten- Democratic Republic of the Congo to aban- Rights Council (HRC) found Japan’s Penal sibly threaten governmental legitimacy and don the use of child soldiers and prosecute Code inconsistent with the International consequently, the war against the LTTE. those who were responsible. They also Covenant on Civil and Political Rights took a tough approach in 2007 with respect (ICCPR) due to its secretive, lengthy, and to the Sri Lankan Tamil Tigers, whose inhumane nature. Death row inmates are Ea s t a n d So u t h Ea s t As i a a n d child soldier recruitment dropped over 70 said to be notified of their impending exe- t h e Pa c i f i c percent within a six-month deadline. cution only hours before it occurs, while China Avoids United Nations Action family members are only notified after its Against Child Soldiers in Burma The Security Council has repeatedly completion. Failure to give prior notice of pressured Burma to address its use of child execution directly violates Articles 2, 7, China, backed by Russia and Indonesia, soldiers but found little success. China has and 10 of the ICCPR, to which Japan is a thwarted United Nations Security Council used its political influence to effectively signatory party. efforts to ban recruitment of child soldiers block proposals for more comprehensive in Burma. China prevented the Security action and has even on occasion prevented According to Article 475 of the Japa- Council from addressing the issue by bar- UN personnel from traveling to Burma to nese Code of Criminal Procedure, the ring UN officials’ access to Burma and verify its claims. Minister of Justice has six months to issue by suppressing plans to address the issue a death warrant. However, prisoners in the before they could commence. Article 43 of the CRC establishes the past have sat on death row for as long as Committee on the Rights of the Child 30 years. Further, the appeals process for Burma has a long history of human which monitors and carries out the objec- inmates is cumbersome and futile. Those rights abuses, with its military regime tives of the Convention. China’s actions convicted at trial based on confessions described as one of the most brutal and have effectively rendered the Committee suspected of being given under duress have oppressive regimes in the world. The useless by barring UN access to Burma. little to no avenue by which to appeal their Burmese people are subjected to forced China’s position is that in order to build convictions. Between 1983 and 1990, five labor and face prohibitions on freedom of a relationship of trust with the Burmese inmates were found falsely convicted and speech, movement, and association. One state, there must be full acceptance of released on average 30 years after their of the most pressing matters, however, is whatever it says. With China’s support, initial conviction and sentencing. Former the commonplace practice of kidnapping Burma continues to use child soldiers, Minister of Justice Hideo Usui acknowl- and recruiting children as young as 11 into evades UN sanctions, and renders the law edged that “[t]here are probably more the national military. Human Rights Watch of child soldiers moot. cases like that” on death row. estimates that about 70,000 of Burma’s 350,000 soldiers are children. New Japanese Government The HRC has previously described Sanctions Use of Capital Japan’s capital punishment system as tor- The United Nations General Assembly Punishment turous and inhumane. Death row inmates’ adopted the Convention on the Rights of lives are characterized by the vacillation the Child (CRC) in 1989 which outlined Newly appointed Japanese Prime Min- of their execution and are deprived of the civil, political, economic, social and ister Taro Aso, and Minister of Justice Oki- basic human contact. Executions occur at cultural rights of children. Articles 1 and haru Yasuoka have continued to sanction one of seven detention centers throughout 2 of the Optional Protocol on the Involve- the use of capital punishment, executing Japan, where prisoners are blindfolded ment of Children in Armed Conflict fur- three men in September 2008. As one of and secured to a noose. An official then ther require signatories to ensure children only two industrialized democracies still presses a button which releases a trap door, under the age of 18 are not compulso- practicing capital punishment, Japan has sending prisoners ten feet to their deaths. rily recruited nor engaged in hostilities. been highly criticized for continuing a While Japanese officials describe this as Although Burma’s active recruitment and practice that various international organi- a clean death, Amnesty International and use of child soldiers clearly violates the zations have deemed cruel, unusual, and Human Rights Watch decry it as cruel and CRC and its Optional Protocol and despite torturous. inhumane. the fact that the conscription of children under the age of 18 is recognized as a war The recent executions bring the total The Japanese government defends this crime by the International Criminal Court, number to 13 people in 2008. While the practice with polls showing strong public Burma has escaped relatively unscathed. Japanese public widely supports the state support for the death penalty. Organiza- China, a strong supporter of the military taking of life, many within the interna- tions such as the Japanese Federation of 42 http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/7 10 Moore et al.: International Legal Updates

Bar Associations and the Human Rights ting producing goods predominantly for ensure the North Korean migrant workers Committee have argued that this is because the South Korean market. North Koreans receive the same benefits and rights their the procedure is largely masked in secrecy. expect to find the same conditions in own citizens enjoy. Among these rights The appointment of Prime Minister Aso Mongolia. Mongolia will open its main are net wages compliant with minimum and the recent execution of the three pris- industries to the North Koreans, including wage, safe and clean working conditions, oners have, however, opened dialogue construction, mining, processing of animal the ability to assemble, and freedom of within the Japanese legislature, calling for products, and textile manufacturing. Fur- movement without supervision of North a moratorium and a public debate on the thermore, Mongolia’s labor law is more Korean officials. HRB issue, as well as better disclosure on all liberal in its support of freedom of associa- issues related to the death penalty. tion, minimum wage, and maximum hour Carlin Moore, a J.D. candidate at the laws. Washington College of Law, covers the North Korean Migrant Workers United States for the Human Rights Brief. May Find More Rights in Mongolia North Korean labor law is notorious for its shortcomings in the areas of freedom of Bryan Bach, a J.D. candidate at the Wash- After about half a century of stringent association, collective bargaining, prohibi- ington College of Law, covers Latin Amer- isolationist policy, North Korea entered tions on gender discrimination and sexual ica for the Human Rights Brief. into bilateral agreements with Mongolia harassment, child labor, forced labor, max- Megan Chapman, a J.D. candidate at the which may set a positive precedent for imum hours, and minimum wage. Despite Washington College of Law, covers Africa North Korean migrant workers. The two having found work abroad, North Korean for the Human Rights Brief. states formally agreed to a program in workers overseas still face severe restric- July 2008 whereby North Koreans will be tions upon their freedom of expression, Soumya Venkatesh, a J.D. candidate at able to travel and obtain employment in movement, and association. North Korean the Washington College of Law, covers Mongolian factories and firms. The agree- “minders” allegedly spy on those who the Middle East and North Africa for the ment is scheduled to allow approximately work abroad, limiting their movement and Human Rights Brief. 5,300 North Korean employees to enter socialization with others. Those working Mongolia over the next five years. Many abroad are also consistently required to Kate Kovarovic, a J.D. candidate at the expect this agreement to foster better labor deposit large percentages of their salaries Washington College of Law, covers Europe conditions and more comprehensive labor into a bank account overseen by North for the Human Rights Brief. laws for North Koreans both domestically Korean embassy officials. and abroad. Angad Singh, a J.D. candidate at the North Koreans employed domestically Washington College of Law, covers South North Korea remains one of the last at the KIC are not protected by its labor and Central Asia for the Human Rights centrally planned economies in the world. laws and instead are subjected to oppres- Brief. Pyongyang’s almost complete control over sive and harsh labor conditions. While the a rigid, centrally planned economy has led KIC labor law specifies that employees Hellia Kanzi, a J.D. candidate at the to severe downsizing and created wide- be paid directly in cash, North Koreans’ Washington College of Law, covers East spread unemployment. Small businesses wages are instead paid in U.S. dollars and Southeast Asia and the Pacific for the are unable to compete against government- directly to the government, which retains Human Rights Brief. owned industries and the agriculture sector 30 percent for a social welfare fund and has never fully recovered from the Korean then redistributes the rest in the North War and the famine of the 1990’s. Korean Won.

Work shortages have led North Kore- The employment agreement between ans to search for more favorable conditions North Korea and Mongolia is viewed outside the nation. The Kaesong Industrial internationally as a potentially positive Complex (KIC), located on the border step for North Korean migrant work- between North and South Korea, consists ers. Many see this as an opportunity for of a number of South Korean firms which improvement in the field of labor law employ North Koreans in a factory set- and ask the Mongolian government to

43

Published by Digital Commons @ American University Washington College of Law, 2008 11