A Legal Resource for the International Human Rights Community Human

American University Washington College of Law Volume 19, Issue 2 (Winter 2012) Human

RightsBriefCenter for Human Rights and Humanitarian Law

Human Rights and the Protection of Persons With Disabilities

2 | Stanev v. Bulgaria: On the Pathway to Freedom Oliver Lewis

8 | Implementing Legal Capacity Under Article 12 of Robert D. Dinerstein the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making

13 | When Treatment is Torture: Protecting People Eric Rosenthal & Laurie Ahern with Disabilities Detained in Institutions

18 | The Convention on the Rights of Persons with Jennifer W. Reiss Disabilities in the Post-Lisbon European Union

Also in this Issue

24 | The Conflict Surrounding Universal Access Kaila C. Randolph to HIV/AIDS Medical Treatment in South Africa

30 | Interview with Oliver Lewis, Executive Director of the Mental Disability Advocacy Center

32 | UN Committee Against Torture Chairperson Claudio Grossman’s Statement to the UN General Assembly Columns 38 | International Legal Updates 49 | Updates from the International and Internationalized Criminal Tribunals 58 | Updates from Regional Human Rights Systems 63 | Updates from Inter-Governmental Organizations 65 | Book Review 66 | Alumni Profile 68 | Center and Faculty Updates A Legal Resource for the International Human Rights Community

Directors of the Center for Human Rights and Humanitarian Law | Hadar Harris, Executive Director

Robert Goldman | Claudio Grossman | Diane Orentlicher | Herman Schwartz | Richard J. Wilson

Letter from the Editors

his issue of the Human Rights Brief draws attention to the inability to access treatment. She suggests that a conflict resolution rights of persons with disabilities in international law. As analytical framework may be helpful in addressing this issue, and pro- Ta staff, we intend not only to illuminate the hardship or vides concluding recommendations to the South African government. moments of adversity confronting persons with disabilities. Nor This issue of the HRB includes an interview with Oliver Lewis, do we report exclusively on the public and private actors whose ExecutiveThe Human Director Rights of Briefthe Mentalis a publication Disability of the Advocacy Center for Center. Human This treatment of persons with disabilities denies those individuals issueRights also includesand Humanitarian the remarks Law at theof AmericanClaudio UniversityGrossman, Washington Chair of the their right to dignity and autonomy. We also present this issue as a UN CommitteeCollege of Law. Against No portionTorture of and this Dean publication of the Washingtonmay be reprinted College tribute to the practitioners, advocates, stakeholders, and health of Law,without before the theexpress UN writtenGeneral permission Assembly. of theThis Human issue Rights concludes Brief. with professionals who — alongside persons with disabilities and their columnsAll correspondence,providing concise reprinting, legal analysisand subscription written requests, by HRB as staff well writ- as articles submitted for publication, may be sent to: Human families — campaign tirelessly to empower persons with disabili- ers that we hope our readers will find informative. We are extremely ties and remove the barriers to their complete and meaningful par- Rights Brief, Washington College of Law, American University, 4801 gratefulMassachusetts for the guidance Avenue, N.W.,of WCL Washington, faculty, D.C.especially 20016. Telephone:Juan Méndez, ticipation in society. Among other accomplishments, these efforts Fernanda Nicola, Susana SáCouto, and Katherine Cleary, and to have culminated in domestic reforms across the world and, inter- (202) 274-4023. Fax: (202) 274-4028. Email: [email protected]. Professoredu. Website: Meetali www.wcl.american.edu/hrbrief Jain of the University of. The Cape, views Town expressed Faculty in of nationally, the entry into force of the UN Convention on the Rights Law. thisThe publication work of theare HRBthose ofwould the writers not be and possible are not necessarilywithout the those unwav - of Persons with Disabilities. In this issue of the Brief, we offer eringof guidance the editors, of the the Center, Center or American for Human University. Rights Copyright and Humanitarian Human their insights into the field to which they are dedicated, in hopes Law Rightsand its Brief Executive, 2008. ISSN Director, 1533-6808. Hadar Harris. HRB of furthering their vision for a common humanity that embraces diversity and rejects discrimination in all its manifestations. Cite as 15 No. 2 Hum. Rts. Brief. We begin with an article by Oliver Lewis, who offers critical The Human Rights Brief is a publication of the Center for Human Rights and HumanitarianAn equal opportunity, Law at the American affirmative University action university. Washington College of Law. yet optimistic commentary on the recent European Court of No portion of this publication may be reprinted without the express written Human Rights case, Stanev v. Bulgaria. Rusi Stanev was brought permission of the Human Rights Brief. All correspondence, reprinting, and to a disability institution against his will, and deprived of legal subscriptionCo-Editors requests,-in- Cashi wellef as articles submitted for publication, may capacity. Although the Court did not address the issue of legal be sentMarisa to: HumanR. Bassett Rights Brief, WashingtonAngela Edman College of Law, American capacity, Lewis points out the significance of this case that has University, 4801 Massachusetts Avenue, N.W., Washington, D.C. 20016. Telephone: (202) 274-4023. Fax: (202) 274-4028. Email: [email protected]. Senior Articles Editors forged a path for the protection of the rights of people with Website: hrbrief.org. The views expressed in this publication are those of the Miya Saika Chen Zeenat Iqbal disabilities. The Court held for the first time that a person in a writers and are not necessarily those of the editors, the Center, or American disability institution was deprived of liberty, and that conditions of University. Copyright Human Rights Brief, 2011. ISSN 1533-6808 Managing Editor a disability institution may violate the right to be free from torture Cite as 19 No. 2 Hum. Rts. Brief and inhuman or degrading treatment or punishment. Courtney E. Nicolaisen An equal opportunity, affirmative action university. Professor Robert Dinerstein provides a precise, in-depth exam- Blog Editor Co-Editors-in-Chief ination of Article of the UN Convention on the Rights of Persons LindsayJessica Roberts Anna Cabot Christopher Tansey with Disabilities, which provides for full and unmitigated rights to legal capacity for persons with disabilities. In so doing, Professor ManagingArticl Eedsit Eoditorsr Dinerstein argues that Article 12 reflects an encouraging policy KaitlinMorgan Brush M. Alen Katharine Marshall shift from substituted decision making to supported decision mak- ManagingAdrián OE.nline Alvarez Ed itor Manbegerot Shimellis ing, and sets forth guidelines for implementing supported decision JessicaJennifer Portmess B. Benz Leslie M. Thompson making under Article 12. Senior Special Coverage Editor JessicaSta Lyndff Writers Eric Rosenthal then highlights possible intersections between Alex Cheng Jennifer Jaimes the rights of people with disabilities and the right to be free from SeniAnnaor A rticlesKatherine Ed Drakeitor Ari Levin torture, and inhuman or degrading treatment or punishment. CarsonRukayya Osberg Furo Sara Ramey Drawing on his experience and accomplishments at Disability SpecialMahreen Contribut Gillanio r Morgan E. Rog Rights International, Rosenthal provides illustrative examples TraceyJulie Begley A. Gryce Solomon Shinerock Brent D. Hessel Howard Shneider Staff Editors from the United States and around the world in support of his Natalie M. Huls Matthew Solis legal analysis. Molly Hofsommer Anne Schaufele Lauren Nussbaum Jacob Schubert Jennifer Reiss discusses the ratification of the UN Convention AllisonFound Rogneers Board Katelyn Winslow on the Rights of Persons with Disabilities by both the European Vanessa Allen, Gillian Brady, Michelle Donme, Gabriel Eckstein, StaffRobert Writers Guitteau Jr., Fernando González-Martín, Claudia Martín, Union and its member states, which, she argues, generates ques- Kyle Bates Saralyn Salisbury Mair McCafferty, Rochus Pronk, Ayesha Qayyum, Diego Rodríguez- tions about its implementation as a mixed agreement with shared Rachael Curtis Sarone Solomon Pinzón, and Shashikala Warrier. competences. To fulfill the principles and goals underlying the Christina Fetterhoff Marie Soueid Convention, the EU and member state institutions must embrace Michelle Flash Anna Taylor ClaireAlu Grandisonmni Committee Thais-Lyn Trayer a cooperative ethos and a sense of mutual responsibility, to both MatthewAnebi Lopas Adoga, David Baluarte, AnneMegan Briggs, Wakefield Fernando González- agree on their respective responsibilities and ensure that all parties AnnaMartín, Naimark Jennifer M. Hentz, RichardBenjamin H. Kamm, Watson Sarah Paoletti, follow through. Alejandro Ponce-Villacís, Amy Stern, Jaime Underwood, and Kristi FounSeverance.ders Boar d Also in this issue, Kaila Randolph explores some of the Vanessa Allen, Gillian Brady, Michelle Donme, Gabriel Eckstein, Robert challenges concerning refugees’ access to HIV/AIDS medical Guitteau Jr., Fernando González-Martín, Claudia Martin, Mair McCafferty, treatment in South Africa. Despite South Africa’s domestic and Rochus Pronk, Ayesha Qayyum, Diego Rodríguez-Pinzón, and Shashikala international legal obligations, in addition to domestic public Warrier. health policies, to ensure access to treatment, refugees are often Alumni Committee precluded from accessing anti-retroviral drugs. Randolph explains Anebi Adoga, David Baluarte, Anne Briggs, Fernando González-Martin, that xenophobia and a lack of education of health professionals Jennifer M. Hentz, Richard H. Kamm, Sarah Paoletti, Alejandro Ponce-Villacís, Amy Stern, Jaime Underwood, and Kristi Severance. regarding their obligation to treat refugees contributes to refugees’ Stanev v. Bulgaria: On the Pathway to Freedom

By Oliver Lewis*

“I’m not an object, I’m a person. court decision a year later. In 2005, the I need my freedom.” director of the institution was appointed Mr. Stanev’s guardian.3 — Rusi Stanev, to his attorney Aneta Genova, before the European Court of Mr. Stanev filed his application to Human Rights Grand Chamber hearing the ECtHR with the assistance of the in his case, February 2011 Bulgarian Helsinki Committee and the Mental Disability Advocacy Center, two non-governmental organizations, on Introduction September 8, 2006. There was an oral n this article, I suggest that the hearing before a seven-judge Chamber January 2012 judgment of the on November 10, 2009, and the Chamber IEuropean Court of Human Rights issued its admissibility decision on June 1 (ECtHR) in Stanev v. Bulgaria takes us Rusi Stanev. © Yana Buhrer Tavanier, 2009 29, 2010. On September 14, 2010 the a few steps along the path towards free- Chamber relinquished the case to the dom. Rather like a Franz Kafka novel, the judgment is a story Grand Chamber, which is the ECtHR’s highest body comprised about an ordinary person who became entangled in a web of of seventeen judges. On February 9, 2011, an oral hearing took antiquated laws and perverse processes, and who ended up in a place before the Grand Chamber, and the judgement was issued grotesque situation from which he found it impossible to extri- on January 17, 2012, some six years and four months after Mr cate himself. Rusi Stanev, the applicant, is an extraordinarily Stanev filed his case. tenacious man who faced State absurdity and abuse, and who risked retribution by putting Bulgaria in the dock at the ECtHR The Grand Chamber held that Mr. Stanev had been deprived in Strasbourg, and won. His life and his case are unique, but his of his liberty under Article 5 of the European Convention is the voice of millions of others’ that we will never hear. They on Human Rights (ECHR) because he was under constant are — like he was — locked away and silenced. supervision in the institution and was not free to leave without permission. The Court found a violation of Article 5(1) of the On December 10, 2002, when he was 46-years old, an ambu- ECHR because his detention was not based on his mental health lance picked up Rusi Stanev at his home where he lived alone. status (which remained largely irrelevant to his placement) and He was bundled inside and driven 400km to an institution for “adults with mental disorders.” His transfer into the institution was arranged through an agreement by a municipal official acting as Mr Stanev’s guardian (the guardian had never met Mr. “Rusi Stanev, the Stanev and signed off on the institutional placement a mere six days after becoming his guardian) and the institution’s director. It was arranged on the basis that Mr. Stanev had a diagnosis applicant, is an of schizophrenia and that his relatives did not want to care for him. Mr. Stanev knew nothing about this agreement and did not extraordinarily tenacious want to leave his home. No one told him how long he would stay in the institution, or why he was being taken there. Two years man who faced State earlier, the Ruse Regional Court had restricted his legal capacity. He was not notified about or allowed to participate in the proceedings that led to this determination. Once under guardian- absurdity and abuse, and ship, Mr. Stanev was prohibited by law from making any decisions about his own life.2 He had unsuccessfully appealed the who risked retribution by putting Bulgaria in the * Oliver Lewis is Executive Director of the Mental Disability Advocacy Center, an international NGO based in Budapest, Hungary, dock at the ECtHR in which co-represented Mr. Stanev before the European Court of Human Rights. He is Visiting Professor of Law at the Central European University, Budapest, and Associate Member of Doughty Street Strasbourg, and won.” Chambers, London. 2 that there was no need to detain him. The Court also found a violation of Article 5(4) of the ECHR (which sets out the right to a court review of detention) because the Bulgarian law allowed Mr. Stanev no opportunity to have the lawfulness of his detention assessed by an independent judicial body; as a person whose legal capacity had been stripped, he had no legal standing to litigate. The Court also found a violation of Article 5(5) of the ECHR (which sets out a right to domestic compensation for a violation of Article 5). Of global jurisprudential significance, the Court found that the conditions of the detention were “degrading,” in violation of Article 3 of the ECHR. Although the Court found a violation of the right to a fair trial under Article 6 of the ECHR because Bulgarian law provided no mechanism for Mr. Stanev to seek restoration of his legal capacity, the Court, by thirteen votes to four, declined to look into the substance of the complaints about the deprivation of legal capacity, argued by the applicant under Article 8 of the ECHR (which sets out the right Pastra. © Yana Buhrer Tavanier, 2009 to respect for private and family life, home and correspondence). The judgment contains two partly dissenting judgments, both of The residents’ clothes were bundled together and handed out which depart from the majority on the Article 8 point. The Court randomly to the residents, a situation about which the ECtHR awarded Mr. Stanev compensation of €15,000. commented “was likely to arouse a feeling of inferiority in the residents.”9 The CPT documented that residents had access to the This article does not address each of these findings in turn, bathroom once a week, and that the bathroom to which Mr. Stanev as it is impossible to do justice to the entirety of the 65-page had access was “rudimentary and dilapidated.”10 The CPT also judgment and partly dissenting opinions. Instead, the rest of this found that: article highlights three substantive issues. The first section looks at the Court’s treatment of the living conditions in the institution, The so-called “toilets”, also located in the yards, repre- the second section examines the Court’s discussion of whether sented decrepit shelters with holes dug in the ground. Mr. Stanev was deprived of his liberty, and the third section The state of these facilities was execrable; further, looks at the Court’s (mis)handling of Mr. Stanev’s legal capacity walking to them on the frozen, slippery ground was complaints. I then offer some conclusions. potentially dangerous, especially at night. Residents visibly used the surrounding outside area as a toilet.11

Living conditions were degrading As well as the BBC and the CPT, Amnesty International also The social care institution in which Mr. Stanev found himself visited the Pastra institution one year earlier. Amnesty’s report is was “accessible via a dirt track from the village of Pastra, the more graphic than the CPT’s. They found that the toilet: nearest locality 8km away,”4 in a village located in a “secluded […] was some 30 metres away along a snow-covered mountainous area (some 800 m above sea level), near a hydro- path in an outhouse. Faeces blocked the hole in the electric power station,”5 in southwest Bulgaria. Mr. Stanev ground and covered the snow around the outhouse. In was placed in Block 3 of the home, which was “reserved for block number two there were three rooms on the first residents with the least serious health problems, who were able floor, with one, four and seven beds respectively. Some to move around the premises.”6 beds had no mattresses and a few did not even have A BBC journalist had visited Pastra in December 2002 spring frames but only flat metal bars. When asked and found that some of the residents “had no shoes and socks how the residents sleep in such beds the orderly replied although it’s minus ten degrees [Celsius] outside.” The journalist to an Amnesty International representative that they reported that “[o]ne in ten residents did not survive the past put their coats across the metal bars and then lie on year — and there is no reason to expect it to be any different top. The orderly also explained that lights are centrally this year.”7 controlled and switched off at midnight. The residents were ordered to rise at 4am. When questioned about the It was not just the BBC that visited the institution. Of huge rationale for such early awakening he stated: “Just so! significance for Mr. Stanev’s international litigation given Sometimes it can vary. It depends!” This was a clear its documentary credibility, a delegation of the European admission of abuse of power by the staff.12 Committee for the Prevention of Torture (CPT) carried out a periodic visit to Bulgaria in December 2003. Their mission The CPT found that there was one TV set owned by one included a trip to the Pastra institution. The CPT found that in of the residents, but generally that, “[n]o therapeutic activities Blocks 1 and 2 the temperature at midday at the time of the visit whatsoever were organised for the residents, whose lives were 13 in December was twelve degrees Celsius. In Block 3, where characterised by passivity and monotony.” The institution’s 14 Mr. Stanev was held, the CPT found “somewhat better heating,” daily budget for food per person was the equivalent of $0.89. although “residents indicated that it had been on all the time The CPT delegation was so appalled with the situation that since the delegation’s arrival.”8 at the end of its mission to Bulgaria it made an immediate observation,15 finding that “the conditions witnessed at this

3 establishment could be said to amount to inhuman and degrading the ECHR].”22 The judgment, we are told, does not “rule on treatment.” The CPT urged the Bulgarian government to urgently the obligations that may arise under the Convention for the replace the institution with a facility in conformity with modern authorities in such situations.”23 standards. Responding to this in February 2004, the Bulgarian That said, The ECtHR found that Mr. Stanev’s detention was government promised that the Pastra institution “would be closed attributable to the national authorities because he was placed as a matter of priority.”16 This turned out to be entirely vacuous: in a State-run institution that did not interview him before the the Pastra institution remains operational to this day. To highlight placement.24 He was not given an opportunity to express his the situation, the CPT went back in October 2010, but its report opinion about the guardian’s decision, even though he could on this mission is not yet public.17 have given it.25 He was not transferred to the institution on his In its judgment, the ECtHR relied extensively on the CPT’s request,26 and the restrictions complained of were the result of documentation in finding that the living conditions in which the (in)actions of public.27 The Court found that in the particular Mr. Stanev was forced to spend approximately seven years circumstances, with many caveats, without making any policy amounted to “degrading treatment,”18 in violation of Article 3 generalities, and only in this case, Mr. Stanev was deprived of of the ECHR, which sets out the absolute prohibition against his liberty in Article 5 terms. torture, inhuman or degrading treatment or punishment. In the The particular circumstances included the following findings international litigation, the Bulgarian government pleaded a lack of fact. Mr. Stanev needed staff permission before going to the of financial resources in justifying its inaction in closing the nearest village.28 He had three leaves of absence of about ten Pastra institution, an argument that the ECtHR found irrelevant days each, which were “entirely at the discretion of the home’s as justification for keeping Mr. Stanev in such conditions.19 management,”29 and he needed to travel 400km to get home, Stanev is the first case in which the ECtHR has found a viola- making his journey “difficult and expensive […] in view of his tion of Article 3 of the ECHR in any sort of institution for people income and his ability to make his own travel arrangements.”30 with disabilities. He was returned to the institution without regard to his wishes when he failed to return from Liberty was denied a leave of absence in 2006.31 Mr. Stanev alleged that he had Furthermore, his identity papers been detained for the purposes were constantly held by the insti- of Article 5(1)(e) of the ECHR, “Stanev is the first case tution, which, the ECtHR found, which sets out an exhaustive set placed “significant restrictions 32 of circumstances when in which in which the ECtHR has on his personal liberty.” the State can legally deprive The Court found that Mr. an individual of their liberty, found a violation of Article Stanev was not at any health risk including for people of “unsound that might have warranted deten- mind.” Case-law has fleshed 3 of the ECHR in any sort tion, and that he was “under con- out what this antiquated phrase stant supervision and was not free means, but the ECtHR has never to leave the home without per- been asked to decide whether a of institution for people mission whenever he wished.”33 resident of a social care institution Having lived in the institution for was detained for the purposes with disabilities.” eight years, the Court found that of Article 5 of the ECHR. Its he was likely to have felt “the full previous case-law has largely adverse effects of the restrictions concerned compulsory detention imposed on him.”34 In address- under mental health legislation in psychiatric wards/hospitals, ing the subjective aspect of Article 5, the Court noted that Mr. which the Court has generally found acceptable as long as there Stanev had actively complained of being in the institution and had 20 are safeguards. If Mr. Stanev was detained for the purposes of attempted to leave legally. For all these reasons the Court found Article 5(1) of the ECHR, then (according to Article 5(4)) he that he had been detained. The question remained: was the depri- should have been entitled to have the lawfulness of the detention vation of liberty lawful under Article 5(1) of the ECHR? reviewed by an independent court. Answering this question in the affirmative, the Court stated The seventeen judges of the Grand Chamber saw the public what I think is the most important sentence in the whole judgment: policy implications clearly. No one knows how many people with disabilities are in social care institutions, but my estima- It seems clear to the Court that if the applicant had tion is that the figure is upwards of 2.5 million in the Council not been deprived of legal capacity on account of his of Europe region.21 It appears from the judgment that the Grand mental disorder, he would not have been deprived of 35 Chamber judges did not want to open the proverbial floodgates. his liberty. At the outset of the discussion on Article 5, the judgment goes This is the closest the Stanev Court comes to a policy analy- to pains to state that, “it is unnecessary in the present case to sis. The de-coupling of guardianship and other human rights determine whether, in general terms, any placement of a legally violations is a topic now well-established, and the Court will be incapacitated person in a social care institution constitutes a presented with more cases in the future which will tease apart ‘deprivation of liberty’ within the meaning of Article 5(1) [of the intimate relationship between detention in an institution 4 and deprivation of legal capacity. Because the freshest medical report was two years old when Mr. Stanev was placed into the institution, the Court was convinced that the detention was not “in accordance with a procedure prescribed by law” under Article 5(1)(e) of the ECHR, and it therefore found a violation under this heading.

Legal capacity was hardly examined Mr. Stanev argued that his right to a fair trial (due process rights set out in Article 6 of the ECHR) and his right to respect for private life (Article 8 of the ECHR) were violated as a result of being deprived of legal capacity and being placed under guardianship. As already noted, the ECtHR found a violation of Article 6 on the basis that Bulgarian law did not guarantee with sufficient degree of certainty access for Mr. Stanev to seek An overcoat is placed on the bed instead of mattress,' explained an orderly in Pastra. restoration of his legal capacity.36 This is © Amnesty International, 2002 a welcome finding, as it is predictable and the existence of the UN Convention on the Rights of Persons technocratic. Of more jurisprudential interest is the range of with Disabilities.37 human rights that are automatically compromised as a result of the deprivation of legal capacity. Whatever the reason for the Court’s approach, their hand- ing of the legal capacity claims stands in sharp contrast to its Mr. Stanev argued these existing body of case law.38 In its 2008 judgment in Shtukaturov points at considerable length v. Russia, the Court established that the “interference with the under Article 8 of the ECHR. applicant’s private life was very serious. As a result of his inca- The Court refused to even pacitation the applicant became fully dependant on his official entertain these arguments, guardian in almost all areas of life.”39 In the Shtukaturov case, and thirteen out of the sev- the applicant was placed under guardianship without his knowl- enteen judges found abruptly edge, and was sent by his guardian to a psychiatric hospital for that “no separate issue arises seven months. In the Stanev case, the applicant was sent by his under Article 8.” One can only guardian to a social care institution for seven years. speculate as to why the majority decided this way. Perhaps The Stanev judgment is appended by two separate partly at sixty-one pages, the judges dissenting opinions, the first by the judges from Belgium and thought that the judgment was Luxembourg (who are both Vice Presidents of the Court, i.e. lengthy enough, or has cov- very senior) and Estonia, and the second by Judge Kalaydjieva ered enough terrain already. from Bulgaria (who herself is from Bulgaria and used to work Perhaps they simply ran out as a human rights attorney). Both opinions regret that the Court of steam, or time. Perhaps failed to investigate the Article 8 claims, with Judge Kalaydjieva they were in a rush to clear correctly identifying legal capacity as “the primary issue” in the the backlog of other cases. case. She notes that the government offered no justification for Alternatively, (although to Mr. Stanev’s preferences being ignored, and that “instead of due be clear, they do not put it assistance from his officially appointed guardian, the pursuit of in these terms), perhaps the his best interests was made completely dependent on the good Grand Chamber was will- will or neglect shown by the guardian.” ing to offer the State a wide Judge Kalaydjieva writes that she would have found a viola- “margin of appreciation” and tion of Article 8 of the ECHR, stridently setting out that the was reluctant to provide broad Bulgarian law “failed to meet contemporary standards for ensur- policy guidance in an area ing the necessary respect for the wishes and preferences he was where there is not yet clear capable of expressing.” This language of contemporary stan- common ground amongst Mr. Rusi Stanev in front of the dards is, in my view, code for Article 12 of the UN Convention European Court of Human Rights the member States (let alone on the Rights of Persons with Disabilities (CRPD), which sets in Strasbourg. © Mental Disability among the judges) on an issue out that everyone with disabilities should have legal capacity on Advocacy Center, 2010 they consider to be a social an equal basis with others, and that the State is required to make or moral one, notwithstanding assistance available to those who need help in exercising their

5 “Her insight highlights the way in which guardianship and institutionalization conspire not only to invalidate a person’s will and preferences, but how they segregate people from our societies, exclude them from the political sphere and erase them from our legal consciousness.” legal capacity. It should be pointed out, however, that Bulgaria a central feature of the CRPD. In a 2010 judgment on the right had not ratified the CRPD when the violations took place, so to vote of a person deprived of legal capacity, the Court cited Bulgaria was not legally bound by its provisions. the CRPD in passing but failed to use it in its analysis,45 and in a case against the UK in the same year, the Court mentioned Judge Kalaydjieva further notes the access to justice argu- offhand that the amicus curiae brief had cited the CRPD in its ment which was missed in the majority judgment; namely that submissions.46 Mr Stanev had to rely totally on the discretion of the guardian to initiate legal proceedings to restore his legal capacity, and In a 2010 case concerning a deaf man who died in custody, to get out of the institution. Her insight highlights the way in the Court cited the CRPD early in its judgment, but despite which guardianship and institutionalization conspire not only to the CRPD’s strong language about reasonable accommoda- invalidate a person’s will and preferences, but how they segre- tion in detention,47 the Court did not rely on it in finding that gate people from our societies, exclude them from the political “[w]here the authorities decide to place and maintain in deten- sphere and erase them from our legal consciousness. tion a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability.”48 In a 2011 case about Conclusions a person with HIV, the Court referenced the CRPD in relation I would like to make two concluding remarks. First, that the to the prohibition of disability-based discrimination but did not Court should engage with developments in United Nations human cite it in the main points of the case (for example, whether HIV rights law. Second, that despite its weaknesses, the Stanev judg- can be considered a disability which, since Glor v. Switzerland, ment is a significant advance in international human rights law. is already an established prohibited ground of discrimination 49 First, Stanev is the latest example of how the ECtHR is under the “other status” provision in Article 14 of the ECHR). unwilling to interpret the ECHR in the light of UN human rights It is probably too early to conclude that the Court is being dis- treaties, in this case the CRPD.40 One frustration is that CRPD ablist in its approach, and perhaps too early to conclude that it provisions do not map neatly onto the ECHR, but the main is taking a different approach to that which it took following frustration is that the Court is not even engaging with what the the 1989 adoption of the Convention on the Rights of the Child CRPD has to say. The ECHR was written in the late 1940s, and it (CRC), although a review of the ECHR judgments from the is likely that none of the drafters had a situation similar to Stanev 1990s citing the CRC suggest a Court slightly more willing in mind. By contrast, the CRPD is a document adopted in 2006, to weave CRC principles into its judgments than the current 50 drafted largely by experts (many of whom were people with bench’s treatment of the CRPD. disabilities) who knew the features of guardianship and institu- Second, the Stanev judgment is a significant advancement tionalization very well. Its provisions — in particular Articles 12 of European and global case law. Writing in 2007, Sir Nicholas and 19 — speak directly to a Stanev scenario. Bratza (the President of the seventeen-judge Grand Chamber The ECtHR first cited the CRPD in 2009, three years after its that adjudicated the Stanev case, and the President of the ECtHR adoption, in the case of Glor v. Switzerland.41 The Court stated itself) observed that since the first major mental health case of that the CRPD represents a European and universal consensus Winterwerp v. the Netherlands in 1979, “the jurisprudence of the on the necessity of addressing the treatment of people with Court in the succeeding twenty years is notable for the almost disabilities. Although these are encouraging words, the Court complete dearth of judicial decisions in this vitally important did not rely on the CRPD in finding in that case for the first area.” He goes on to explain that, “This gap is a reflection not time that disability constituted a “status” as a protected ground of adequate safeguarding by member States of the Convention of discrimination under Article 14 of the ECHR; or that people rights of those with mental disabilities but rather of the acute with disabilities constitute a vulnerable group for whom the practical and legal difficulties faced by an especially vulnerable State’s margin of appreciation to permit differential treatment group of persons in asserting those rights and in bringing claims 51 should be narrow. More surprisingly, in very important judg- before both the domestic courts and the European Court.” ments concerning the right to legal capacity in 2008,42 2009,43 Exactly so. That Mr. Stanev was able to bring his case to the and 2011,44 the Court failed even to mention the CRPD, despite public attention through the international litigation is due to his legal capacity being a central concern in each of the cases, and tenacity, to non-governmental organizations, and the donors that

6 fund them.52 No civil legal aid is available in Bulgaria for this we advocates who operate in the CRPD ecosystem. The ECtHR type of case, so the vast majority of cases go ignored. is a judicial body that currently faces a barrage of criticism from governments for overstepping the boundary between national The Stanev judgment has been described in the blogosphere sovereignty and universal human rights. Perhaps these political as an “exciting decision,” a “huge achievement,”53 and a “land- considerations were at play in the Stanev case. mark ruling.”54 My colleague Lycette Nelson, who represented Mr. Stanev before the Grand Chamber, describes the judgment As a judicial body the Court has adjudicated the particular as having “enormous significance.”55 The international NGO, facts of the case. That it has chosen to couch the violations Interights, which submitted an excellent amicus brief said on in overly narrow terms does not detract from the significant its website that, “there is no mistaking the significance of the advances in international law. This is the first case in which Stanev judgment, which will benefit tens of thousands of per- the Court has found that a person in a disability institution sons with disabilities,”56 although this seems to miscalculate the was unlawfully deprived of liberty. This is the first case that number of potential beneficiaries by several million. the Court found that the regime and conditions of a disability institution violate the absolute right to be free from torture and It is surely a jurisprudential failure that the Court did not inhuman or degrading treatment or punishment. directly address the right to legal capacity, and it is frustrating that the Court is not yet willing or able to offer macro comments Franz Kafka once wrote that, “paths are made by walking.” about societal exclusion of people with disabilities. I share the Mr. Stanev’s case clears the path towards freedom, and towards frustration, but am not yet overly concerned. The Court is not a time when people with disabilities are not objectified by a UN treaty body that comments on government progress and the law, but treated as full and equal subjects of human rights makes recommendations and has a more personable relation- and fundamental freedoms. It is now for others to take action, by ship with civil society. Nor is it an international think-tank carrying out implementation advocacy, raising judicial aware- or an advocacy organization. We are still in the early days of ness of disability rights, empowering victims of human rights disability litigation: this is a relatively new and unsettled area in violations to continue seek justice through the courts, and ensur- the European legal system, however backward that may seem to ing the viability of organizations that enable this to happen.

Endnotes: Stanev v. Bulgaria: On the Pathway to Freedom 1 Stanev v. Bulgaria, App. No. 36760/06, Eur. Ct. H.R. (2012). Degrading Treatment or Punishment (November, 26 1987) which Also see the admissibility decision of June 29, 2010. provides that, “[i]f necessary, the Committee may immediately 2 Mental Disability Advocacy Center, Guardianship and Human communicate observations to the competent authorities of the Party Rights in Bulgaria: Analysis of Law, Policy and Practice, (2007), concerned.” available at http://mdac.info/sites/mdac.info/files/English_ 16 CPT Report at para. 34. Guardianship_and_Human_Rights_in_Bulgaria.pdf. 17 The CPT carried out a periodic visit to Bulgaria from October 3 For more on these situations of conflict of interest, see MDAC 18-29, 2010 and visited the “Home for men with psychiatric 2007, comments under indicator 11 at p. 42: “The guardian should disorders in the village of Pastra, Rila municipality.” CPT, News not have a conflict of interest with the adult, or the appearance of Flash,” November 3, 2010, www.cpt.coe.int. such a conflict.” 18 Stanev at para. 212. 4 Stanev at para. 19. 19 Id. at para. 210. 5 “Report to the Bulgarian Government on the visit to Bulgaria 20 For a review of ECHR case-law on this, see chapter 2 of Peter carried out by the European Committee for the Prevention of Bartlett, Oliver Lewis, and Oliver Thorold Mental Disability and Torture and Inhuman or Degrading Treatment or Punishment (CPT) the European Convention on Human Rights, (2007). from 16 to 22 December 2003,” CPT/Inf (2004) 23, 24 June 2004, 21 In 2007, an international study estimated that there were nearly para. 22. (hereinafter “CPT report”). 1.2 million people living in residential institutions for people with 6 Stanev at para. 20. disabilities in European Union member states (the study included 7 Karen Allen, Mental health travesty in Bulgaria, BBC News, Turkey, but excluded Germany and Greece for which no data was December 16, 2002, http://news.bbc.co.uk/2/hi/health/2579865.stm. available). See Jim Mansell, Martin Knapp, Julie Beadle-Brown 8 CPT report at para. 26. and Jeni Beecham, Deinstitutionalisation and community living 9 Stanev at para. 209. — outcomes and costs: report of a European Study 26 (2007). 10 CPT Report at para. 27. My estimate of upwards of 2.5 million is based on the fact that the 11 Id. European Union’s 27 countries constitute around 502 million people, 12 Amnesty International, Bulgaria: Far from the eyes of society: and that the number of people in the Council of Europe (which Systematic discrimination against people with mental disabilities comprises 47 member states including all EU member states) is (2002), available at http://www.amnesty.org/en/library/info/ around 800 million, and that countries in former Soviet Union have EUR15/005/2002. higher rates of institutionalization than western European countries 13 CPT Report at para. 32. many of which are undergoing a de-institutionalization process. 14 Id. at para. 29: “[t]he daily expenditure for food per resident 22 Stanev at para. 121. averaged 1.50 BGL and could go up to 2 BGL when there were 23 Id. donations.” According to the history section of www.xe.com, in 24 Id. at para. 122. December 2002 1.5 BGL was the equivalent to 0.89 US dollars. 25 Id. 15 In doing so, the CPT invoked Article 8(5) of the European Convention for the Prevention of Torture and Inhuman or Endnotes continued on page 72

7 Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making

By Robert D. Dinerstein*

Introduction To paraphrase one commentator, with Article 12 “on the books,” 4 n deceptively simple language, Article 12 of the United now comes the hard part. Nations Convention on the Rights of Persons with Dis In this essay, after providing some background on Article 12 Iabilities (“CRPD”), Equal Recognition before the law, and its relationship to core values immanent in the CRPD as a provides that “States Parties shall recognize that persons with whole, I set out some of the characteristics of guardianship — the disabilities enjoy legal capacity on an equal basis with others primary form of substituted decision making employed around 1 in all aspects of life.” If, as is clear from the deliberations that the world — and its alternatives. I then explore the concept of produced this article, Article 12’s use of the term “legal capacity” supported decision making and some of the ways in which it includes not simply the capacity to have rights (or passive capacity) has, or might function. Finally, I discuss some of the beginning but also the capacity to act or exercise one’s rights, an impor- efforts to come to terms with the meaning of supported decision tant question that arises is how to address the circumstances of making in which States Parties, non-governmental organizations, individuals with disabilities who may not be able to exercise and the Committee on the Rights of Persons with Disabilities are their legal capacity without some kind of assistance or interven- engaged. Early indications are that there continues to be sub- tion. Article 12(3) addresses this question in language that once stantial confusion, at least on the part of States Parties, over the again seems straightforward and meaning of supported decision uncontroversial: “States Parties making, to say nothing of the shall take appropriate measures fitful process some countries are to provide access by persons “…Article 12 was one of experiencing in changing their with disabilities to the support laws to provide for this form they may require in exercising of assistance to individuals with 2 their legal capacity.” Yet this the most hotly contested disabilities. I will conclude with use of the word “support,” and some observations about steps the related concept of supported articles to be considered people with disabilities, NGOs, decision making, represents noth- policy-makers, and others might 3 ing less than a “paradigm shift” during the treaty take to hasten States’ embrace of away from well-established but supported decision making and increasingly discredited notions make the exciting promise of the of substituted decision making. deliberation process.” CRPD a reality for people with Rhetorical identification of the disabilities. shift from substituted to supported decision making, however, is one thing; understanding what these terms mean, and fully implementing a regime truly Article 12 and its Importance oriented toward supporting rather than supplanting the decision- As Amita Dhanda5 and others6 have documented, Article making rights of people with disabilities, is quite another matter. 12 was one of the most hotly contested articles to be considered during the treaty deliberation process. In addition to the controversy surrounding the provision of support, the nature of substituted decision-making arrangements, and the kinds of * Robert D. Dinerstein is professor of law, director of the clinical “due process” protections that should be in place with respect program (1988-96 and 2008-present), and director of the Disability to legal capacity, a key dispute was whether there needed to be Rights Law Clinic (2005-present) at the American University a distinction between the legal capacity for rights and the legal Washington College of Law. He specializes in the fields of clinical capacity to act.7 After much back-and-forth discussion, an alter- education and disability law, especially mental disabilities law native draft, and a last-minute footnote that purported to reject (including issues of consent/choice, capacity, and guardianship), the concept of legal capacity to act on linguistic grounds, the the Americans with Disabilities Act, Civil Rights of Institutionalized States Parties adopted Article 12 and its commitment to recog- Persons Act, legal representation of clients with mental disabilities, nizing legal capacity to the fullest extent.8 the interaction between disability and the criminal justice system, and disability and international human rights. 8 Article 12’s emphasis on legal capacity and the choice- The importance of Article 12’s insistence on the recogni- making that underlies the concept, as well as its statement that tion of legal capacity of people with disabilities also must be “persons with disabilities have the right to recognition every- understood in the context of the historical treatment of people where as persons before the law,”9 resonates with other impor- with disabilities and their presumed inability to make decisions tant provisions of the CRPD. The Preamble to the Convention about their lives. Society assumes that adults of typical intel- recognizes “the importance for persons with disabilities of their ligence, psychosocial functioning, and sensory ability are able individual autonomy and independence, including the freedom to engage in all aspects of life — deciding where to live, whom to make their own choices,”10 and adds that “persons with (or whether) to marry, how to spend one’s money (or to whom disabilities should have the opportunity to be actively involved to leave it), for whom to vote — on an autonomous basis, with in decision-making processes about policies and programmes, whatever assistance they choose to seek out and consider in their including those directly concerning them.”11 Article 3 of the decision making. But for adults with disabilities, the picture has CRPD proper, General Principles, includes “respect for inher- been and continues to be quite different. States have assumed ent dignity, individual autonomy including the freedom to make that the mere status of having an intellectual or psychosocial one’s own choices, and independence of persons” and “full and disability (or some sensory disabilities21) provides a sufficient effective participation and inclusion in society.”12 Article 5’s call basis to presume that the individual is unable to participate fully for equality and non-discrimination emphasizes that “all persons and autonomously in society, in other words, that the individual are equal before and under the law” and that States may need lacks the legal capacity to exercise his or her rights. People with to provide reasonable accommodations to ensure that equal- disabilities were objects of pity, not people with self-respect.22 ity and non-discrimination are achieved.13 Article 19, Living In this mode of thinking, people with disabilities need protec- independently and being included in the community, provides that tion, not rights. Guardianship is the primary mechanism through “States Parties . . . recognize the equal right of all persons with which states have provided this protection; it is a mechanism disabilities to live in the community, with choices equal to others” that, at least in its most complete form, the CRPD, and Article and must ensure that “[p]ersons with disabilities have the oppor- 12, seeks to limit significantly.23 tunity to choose their place of residence and where and with whom they live on an equal basis with others. . . .”14 Article 23, From Guardianship to Supported Decision Making Respect for home and the family, requires non-discrimination “against persons with disabilities in all matters relating to mar- Guardianship is a form of surrogate decision making, usually riage, family, parenthood, and relationships, on an equal basis imposed after a court proceeding, that substitutes as decision with others” and ensures that people with disabilities of mar- maker another individual (the guardian) for the individual in riageable age have the rights to marry and found a family.15 question (called variously the ward or the allegedly incapacitated Article 26, Habilitation and Rehabilitation, requires States Parties person). Full or plenary guardianship may or may not provide to adopt measures to enable people with disabilities to achieve protection to the individual with a disability — there are numer- and maintain “maximum independence” and “full inclusion and ous examples of guardians who have taken advantage of, ignored, participation in all aspects of life.”16 Plainly, if an individual or otherwise failed to serve the interests of the person they were with disability is deemed not to have legal capacity, the person’s supposedly protecting — but even when it is functioning as 24 ability to make choices, achieve maximum independence and be intended it evokes a kind of “civil death” for the individual, who fully included in the community is fatally compromised. is no longer permitted to participate in society without media- tion through the actions of another if at all. Plenary guardianship The requirement in Article 12(3) that States Parties provide falsely assumes that incapacity for individuals with disabilities is access to whatever supports people with disabilities need to exer- an all or nothing proposition; that where found it exists in all areas cise their capacity reflects the critical insight that even people of an individual’s life; and that, once found to exist the individual with the most significant disabilities have legal capacity and are (especially one with an intellectual disability) will not regain covered by the CRPD. The provision builds on the statement in the capacity at some later time. It fails to recognize that people with Preamble that “recogniz[es] the need to promote and protect the disabilities, like people without disabilities, have areas of varying human rights of all persons with disabilities, including those who capacity, in different areas of their lives, and at different times.25 require more intensive support.17 Article 12(4) expands on the desired characteristics of support by providing that, among other In recent years, some states have begun to move away from things, capacity-related measures “respect the rights, will, and plenary guardianship as providing more protection than the indi- preferences of the person” and “are proportional and tailored to vidual with disability needs, and as being far from the least restric- 26 the person’s circumstances. . . .”18 Article 12 is not the only place tive manner in which to provide it. Alternatives such as durable in the CRPD where support in one or more forms (including powers-of-attorney, advance directives, health care proxies, personal assistance) appears; Articles 19 (Living independently representative payee regimes, direct bank deposit systems, and and being included in the community), 20 (Personal mobility), other modalities can provide more targeted assistance to the 24 (2)(d), (e) (Education), among others, all include references individual and at the same time avoid the stigma and indignity to the need to provide support to people with disabilities.19 The of the individual being determined incompetent (or lacking in salience of support is a concrete expression of the social, inter- capacity) for all purposes. Even when some might believe that active model of disability that animates the entire Convention some form of guardianship is appropriate, limited or partial and sees disability as not a thing in and of itself but rather as a guardianship is preferable to plenary guardianship in that the product of the interaction between an individual and his or her court specifically identifies those areas in which the guardian is built and attitudinal environments.20 needed and the individual retains full decision-making capacity in all other areas of his or her life. Other reforms have focused 9 “The paradigm shift reflected in the move from substitute to supported decision making aims to retain the individual as the primary decision maker but recognizes that an individual’s autonomy can be expressed in multiple ways….” on increasing the level of due process that a state must provide with a disability. “What the Convention requires is that the before a guardianship can be imposed (e.g., right to a hearing, support should be based on trust, be provided with respect and legal representation, elevated standard of proof, right to confront not against the will of the person with disabilities.”29 Countries witnesses and present one’s own witnesses, right to appeal, and such as Sweden (through its use of the “god man”30), a number provision for periodic review) and have established that the of provinces in Canada,31 and Germany 32 have made extensive guardian should use the standard of “substituted judgment” use of supported decision-making arrangements to greater or when acting on the individual’s behalf — that is, the guardian lesser degree. should strive to determine what decision the individual would Inclusion Europe, an organization that advocates for the make if he or she could do so rather than make the choice that human rights of individuals with intellectual disabilities, has the guardian believes is in the individual’s best interest. issued a Position Paper in which it identifies eight key elements Important as these reforms of guardianship have been, how- of a system of supported decision-making: ever, they still accept the predominance of a legal regime that • Promotion and support of self-advocacy. locates decision making in the surrogate or guardian and not • Using mainstream mechanisms for the protection of the in the individual being assisted. In contrast, supported decision best interests of a person. Accessibility and accommodation making, which Article 12 embraces, retains the individual as the are important. primary decision maker, while recognizing that the individual • Replacing traditional guardianship by a system of sup- with a disability may need some assistance — and perhaps a ported decision-making (recognizing that there needs to be great deal of it — in making and communicating a decision. The a transition period from guardianship to support) paradigm shift reflected in the move from substitute to supported • Supporting decision-making. One should look to a formal decision making aims to retain the individual as the primary system of support with registered supporters only for decision maker but recognizes that an individual’s autonomy can “essential and important decisions of legal relevance.” For be expressed in multiple ways, and that autonomy itself need not many everyday decisions, informal support networks are be inconsistent with having individuals in one’s life to provide sufficient and should be used wherever possible. support, guidance and assistance to a greater or lesser degree, so • Selection and registration of support persons. Jurisdictions long as it is at the individual’s choosing. need a registration system to reassure those who come into contact with persons with disabilities that the supporters are Supported Decision-Making authorized to assist them. Such a system can also facilitate Supported decision-making can be defined as a series of rela- the training individuals will need. tionships, practices, arrangements, and agreements, of more or • Overcoming communication barriers. Augmentative and less formality and intensity, designed to assist an individual with alternative means of communication must be used when a disability to make and communicate to others decisions about necessary. the individual’s life. Some of the above alternatives to guard- • Preventing and resolving conflicts between supporter and ianship could be part of a supported decision-making regime, supported person. though, to the extent they involve the individual with a disability • Implementing safeguards. These safeguards must ensure that 33 identifying someone else as authorized to speak for him or her, there is a level of proportionality in the support provided. they can move into a form of substituted decision-making (albeit Michael Bach has identified three common elements to one that is less restrictive of the individual’s liberty than guard- supported decision-making models in Canada: (1) they are ianship). A purer form of supported decision-making would rely based on a set of guiding principles that emphasize the person on peer support (for example, ex-users of psychiatric services with disability’s autonomy, presumption of capacity, and right for people with psycho-social disabilities), community support to make decisions on an equal basis with others; (2) they rec- 27 networks and personal assistance, so-called natural supports ognize that a person’s intent can form the basis of a decision- (family, friends), or representatives (pursuant to a representa- making process that does not entail removal of the individual’s 28 tion agreement ) to speak with, rather than for, the individual decision-making rights; and (3) they acknowledge that individuals

10 with disabilities will often need assistance in decision-making decision-making. Tunisia reported that it permits guardianship through such means as interpreter assistance, facilitated com- on the grounds of “insanity, mental impairment or profligacy.”39 munication, assistive technologies and plain language.34 The State said nothing about whether it provided for supported decision-making or, if not, what its plans were for moving Supported decision making thus permits vindication of toward adoption of such a scheme. The report on Tunisia by Article 12’s imperative that all people with disabilities retain the International Disability Alliance noted that “Tunisia does their legal capacity, even those who may need significant and not understand supported decision-making,”40 and another non- intensive support to effectuate it. But whether countries move governmental organization, Atlas Council, also was critical of toward adopting it in lieu of substituted decision-making regimes Tunisia’s compliance with Article 12.41 Tunisia’s response to the depends in the first instance on how they interpret their practices Committee’s List of issues (which included questions regarding with respect to Article 12 and how treaty bodies and non-govern- the application of legal capacity, the kinds of guardianship, and mental organizations respond to those interpretations. whether there were any measures to move toward supported decision making) showed no greater understanding of the issue. Implementing Supported Decision-Making under In its Country Report, Spain, in Paragraph 53, claimed to be in Article 12: The Hard Part Begins compliance with Article 12(3)’s requirement of providing access Under Article 4 of the CRPD, States Parties are obligated “to to supports because it had guardianship statutes!42 It reported adopt all appropriate legislative, administrative and other mea- that a finding of incapacity could be made on the basis that sures for the implementation of the rights” in the CRPD and “to the person could not act “unaided.”43 It proposed to change its take all appropriate measures, including legislation, to modify or terminology from deprivation of legal capacity to modification abolish existing laws, regulations, customs and practices that con- of legal capacity, maintaining that this change in nomenclature 35 stitute discrimination against persons with disabilities.” To the would constitute compliance with the CRPD.44 The non-govern- extent a state provides only for plenary guardianship and makes mental organization CERMI45 stated more directly that Spanish no provision to assist people laws did not provide for sup- with disabilities to obtain the ported decision-making.46 Once supports they need for decision- again, the Committee’s list of making, their laws would seem “To the extent a state issues identified guardianship in clear violation of Article 12. practices as a cause for concern Article 34 of the CRPD provides only for plenary under Article 12; it requested created an expert committee, Spain to report on the number the Committee on the Rights of people under guardianship of Persons with Disabilities guardianship and makes no and the number of rulings mod- (“the Committee”), to review ifying an individual’s capacity and comment upon the activi- provision to assist people to act; to explain how an indi- ties of States Parties to the vidual subject to guardianship CRPD.36 Pursuant to Article with disabilities to obtain was sufficiently protected given 35 (1), States Parties must file the absence of statutory lan- with the Committee “a com- guage addressing the guardian’s prehensive report on measures the supports they need potential undue influence on taken to give effect to its obli- or conflict of interest with the gations under [the CRPD] and for decision-making, their ward; and to report on any on the progress made in that measures designed to replace regard” within two years after laws would seem in clear substituted decision-making the CRPD enters into force with supported decision-mak- 47 for that country.37 To date, ing. Spain’s response essen- the Committee has met for six violation of Article 12.” tially indicated that it is the sessions, with a seventh sched- court’s responsibility to protect uled for April 16-20, 2012.38 the interest of the individual 48 The Committee has adopted under guardianship. Concluding Observations on two countries — Tunisia (at its Notwithstanding these disappointing state reports, the good Fifth Session) and Spain (at its Sixth Session) — and has news is that the Committee’s Concluding Observations for both received reports from 26 other countries (or sub-country entities) Tunisia and Spain reflect its understanding of Article 12 and its as of the upcoming Seventh Session. At the Seventh Session, the commitment to keep the focus on supported decision-making. Committee expects to adopt Concluding Observations on Peru, At its Fifth Session, with regard to Tunisia’s compliance with and will adopt a list of issues for Argentina, China and Hungary. Article 12, the Committee stated that it was “concerned that no Thus, the work of interpreting and implementing the CRPD is measures have been undertaken to replace substitute decision- in its very early stages. making by supported decision making in the exercise of legal The States Parties reports to the Committee from Tunisia and capacity” and went on to recommend that Tunisia review its Spain reflect that those countries’ governments may not truly guardianship laws “and take action to develop laws and policies understand the difference between substituted and supported to replace regimes of substitute decision-making by supported 11 decision-making.”49 It added that relevant public officials and Nations High Commissioner for Human Rights’ Thematic Study other stakeholders should receive training on this issue. At its on enhancing awareness and understanding of the CRPD sets out Sixth Session, the Committee made the same recommendation to clear (if not uncontroversial) views about Article 12’s reach.61 Spain in its Concluding Observations regarding the review of state More recently, the European Commissioner for Human Rights’ guardianship laws and their replacement by supported decision report, Who Gets to Decide?, calls on member states of the making (adding that the latter “respects the person’s autonomy, Council of Europe to abolish mechanisms for full incapacitation will and preferences.”).50 In preparation for the upcoming and plenary guardianship and adopt supported decision-making Seventh Session, in which it expects to issue its Concluding standards.62 Entities as disparate as a Surrogate Court judge in Observations on Peru, the Committee propounded among its list New York City63 and the Inter-American system’s Committee for of issues a question that asked the state to: indicate the number the Elimination of All Forms of Discrimination Against Persons of people with disabilities under guardianship (as a percentage with Disabilities64 have cited to Article 12 as persuasive authority of all people with disabilities in the country): provide informa- in examining, respectively, a guardianship proceeding and the tion on the legal criteria for guardianship and any procedures meaning of the Inter-American disability convention. Litigation for challenging decisions ordering it; and clarify the meaning of brought before domestic courts and human rights commissions the concept of people “unable to look after themselves due to a and courts; conferences and workshops featuring experts from mental or physical disability.”51 around the world; foundations supporting international disability rights; non-governmental organizations (including those Furthermore, at least some of the countries who have filed producing alternative reports for states reporting to the CRPD’s reports but that have not yet been on the Committee’s agenda do Committee); and, perhaps most importantly, people with disabil- seem to recognize that their existing legislation or practice is at ities themselves are important resources for assisting states that odds with Article 12. For example, Argentina has reported that truly want to understand what supported decision making really its legislation does not comport with Article 12 because it does means and why it is critical if Article 12 is to be implemented. not provide for supported decision-making.52 Hungary reported on a statute that adopted provisions abolishing guardianship in In addition, as the Committee itself has recognized, it is crit- favor of supported decision-making, but noted that the statute ical that states provide training for policy-makers and relevant did not come into force.53 Both Australia54 and Austria55 con- stakeholders (including people with disabilities themselves, as tend that substituted decision making is used as a last resort. well as governmental officials, health care personnel, and the Ireland has identified legal capacity as a crucial issue to address business community, who come into contact with people with in connection with its efforts to ratify the CRPD, recognizing disabilities) on the meaning of supported decision-making — that its 1871 Lunacy Regulations are in dire need of attention.56 training that is concrete and practical as well as grounded in a solid philosophical and legal framework of autonomy, equality Outside of the CRPD process, other countries are making and non-discrimination. The reports of states that think they strides toward addressing their laws for protecting the legal capac- are providing supported decision making through guardianship ity of individuals with disabilities. According to the website of suggest that there is much training work to accomplish. But Mental Disability Advocacy Centre (“MDAC”), an organization even if supported decision-making is a relatively new concept that closely monitors developments in Europe in the area of legal within international human rights, it has been operating in capacity, Bulgaria, which only recently ratified the CRPD, has some countries, such as Canada, for over 20 years. There is formed a task force on legal capacity law reform.57 The Czech wisdom to be tapped. Republic recently enacted (February 20, 2012) a new civil code that introduces supported decision making and views restriction The responsibility for implementation of the CRPD is not on legal capacity as a last resort. According to MDAC, the Czech limited to the actions of States Parties. Article 33’s requirement Republic is the first country to enact legal capacity reform based that States Parties establish national implementation and monitor- on the CRPD.58 ing mechanisms, with participation by civil society (including people with disabilities and their representative organizations), provides an opportunity for individuals and groups to keep a Conclusion: Next Steps watch on states’ compliance with the Convention, and can provide To be sure, the above actions are nascent, and, in some cases, an important source of information to the Committee. Finally, seem to represent a “two steps forward, one step back” approach for those states that adopt the Optional Protocol,65 the filing of to the legislative and regulatory change needed to implement individual complaints can serve to encourage compliance with Article 12. Nevertheless, states interested in complying with the CRPD.66 Article 12, or at least assessing the extent to which their existing legislation falls short of its mandate, can look to a variety Enacting appropriate state legislation, and monitoring compli- of sources for inspiration in addition to the efforts the above ance with the CRPD, will not transform decision-making regimes states are undertaking. Even before the CRPD was adopted, the from substituted to supported decision-making overnight, but they Montreal Declaration on Intellectual Disabilities, issued in 2004, are a start. The human rights of people with disabilities demand called for supported decision making for people with intellectual that we not delay in making sure the paradigm shift represented disabilities.59 As noted above,60 the International Disability by Article 12 becomes a reality. Alliance has issued a Legal Opinion on Article 12. The United

Endnotes on page 72 12 When Treatment is Torture: Protecting People with Disabilities Detained in Institutions

By Eric Rosenthal & Laurie Ahern*

organization engaged for nearly twenty years in documenting, exposing, and challenging abuses against people with disabilities. The protection of people with disabilities has been profoundly influenced, in recent years, by the adoption and widespread ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD was adopted in December 2006,1 entered into force in May 2008,2 and has now been ratified by 112 countries.3 Before the adoption of the CRPD, the European Court was often very deferential to medical justifications for treatment. In the 1993 case of Herzcegfalvy v. Austria, for example, the ECtHR ruled that the long-term detention of a man in prolonged physical restraints did not violate the European Convention because such treatment was a form of “medical necessity.”4 More recent cases from the European and Inter-American human rights systems have recognized that poor conditions of confinement can constitute inhuman or degrading treatment.5 In the January 2012 case of Stanev v. A child held at an institution in Kulina, Serbia. © Disability Rights International Bulgaria, the ECtHR found that Mr. Stanev was improperly detained for seven years in a dilapidated facility that lacked adequate food, running water, access to Introduction toilets, privacy, or almost any form of meaningful activity. hroughout the world, people with disabilities are subject to mistreatment in psychiatric hospitals, orphanages, nurs- Ting homes, and other institutions. Much of this abuse is a product of neglect and lack of care — poor, unhygienic conditions, a lack of treatment, and outmoded service systems that “The protection of segregate people from society. In some circumstances, however, pain and suffering is a direct consequence of treatment practices people with disabilities whose stated purpose is to provide treatment, care, or protection. There is a growing recognition that pain inflicted in the name of has been profoundly treatment may violate international law. In some circumstances, it rises to the level of torture. influenced, in recent This article describes these developments and suggests challenges that lie ahead. The authors draw on insights from years, by the adoption our work with Disability Rights International (DRI — for- merly Mental Disability Rights International or MDRI), an and widespread ratification of the UN Convention * Eric Rosenthal, JD, is the founder and Executive Director of Disability Rights International (DRI). Laurie Ahern is the President of DRI. She is the co-founder and former co-director of the National on the Rights of Persons Empowerment Center, a federally-funded technical assistance center dedicated to transforming mental health service systems to a recovery- with Disabilities.” oriented and rights-driven approach. 13 “To date, neither the European nor Inter-American systems have recognized these forms of treatment for people with disabilities as torture, and the ECtHR in particular remains deferential to practices with a therapeutic purpose.”

According to the ECtHR, these conditions amounted to “degrad- Protections against torture and ill-treatment are linked ing” treatment — but not torture.6 To date, neither the European — both prohibited under article 7 of the ICCPR and arti- nor Inter-American systems have recognized these forms of cle 15 of the CRPD. These protections are absolute — treatment for people with disabilities as torture, and the ECtHR allowing for no exceptions.11 These rights cannot be sus- in particular remains deferential to practices with a therapeutic pended, even in times of war, political instability, or public purpose. emergency.12 This level of protection is crucial for people with disabilities in any country that may cite the lack of A 2008 report by former UN Special Rapporteur on Torture resources as an excuse for inadequate treatment. The lack Manfred Nowak examines the implications of the CRPD and points of resources, development, or services available to people with the way to more significant and robust protections for people with disabilities cannot justify torture or ill-treatment.13 disabilities.7 The current UN Special Rapporteur on Torture, Juan Méndez, has implicitly supported the approach taken by Nowak Both torture and ill-treatment require state action — the in his stand against the use of solitary confinement of people with “consent or acquiescence of a public official or other person mental disabilities.8 acting in an official capacity . . . .” Governments “have to take positive measures to ensure that private persons or entities do The CRPD can help guide the application of existing human not inflict torture or cruel, inhuman or degrading treatment or rights law to people with disabilities — even though it was not punishment on others within their power.”14 Former UN Special intended by the United Nations to create new rights under inter- Rapporteur on Torture Manfred Nowak stated that it is the national law.9 Article 15 of the CRPD tracks the International responsibility of governments to regulate health care institu- Covenant on Civil and Political Rights (ICCPR) in prohibiting tions, and thus the state can be held responsible for “doctors, torture and ill-treatment, adding that governments must take health professionals, and social workers, including those work- action to protect persons with disabilities “on an equal basis with ing in private hospitals . . . .”15 Governments must “exercise others.” The CRPD has not changed the definition of torture or ill- due diligence to prevent, investigate, prosecute and punish such treatment, so it is essential to look to the existing legal framework. non-State officials or private actors.”16 Another common element for torture or ill-treatment is that Core Requirements of International Law the pain or suffering must reach a threshold level of severity to As defined by article 1 of the Convention Against Torture trigger protections under international law.17 International law (CAT), torture is: recognizes that the severity of suffering is subjective, however, “…any act by which severe pain and suffering, whether and factors such as a person’s age, health, or disability must be 18 physical or mental, is intentionally inflicted on a person taken into consideration. for such purposes as obtaining from him or a third person For a practice to be considered torture, it is also necessary information or a confession, punishing him . . . or to demonstrate elements of “intent” and “purpose.” Meeting intimidating or coercing him or a third person, or for any these elements presents a challenge in a social or medical reason based on discrimination of any kind, when such context, because service providers are assumed to be acting pain or suffering is inflicted by or at the instigation of or out of a beneficent intent with the purpose of curing, helping, or with the consent or acquiescence of a public official or protecting individuals with disabilities.19 Treatment is a proper 10 other person acting in an official capacity.” and legitimate goal. Acting in this manner is often thought to For a practice to constitute torture, it must meet each of shield service providers from liability for torture — even if pain CAT’s four elements: (1) severe pain, (2) intent, (3) purpose, and suffering results. Our experience demonstrates that such and (4) an act or omission of a government authority. Where assumptions are not justified or supported by international law. a practice does not rise to the level of torture, it may still constitute ill-treatment (a term encompassing “cruel, inhuman or degrading treatment or punishment”), prohibited under article 16 of CAT.

14 The Link Between CAT and CRPD importance of mainstream human rights treaties in protecting For people with disabilities in a medical or social service people with disabilities. context, the critical language in CAT’s definition of torture is that DRI’s first report in 1995 challenged abusive conditions in pain may not be induced to “coerce” or for a purpose “based on Uruguay’s psychiatric institutions as inhuman and degrading discrimination of any kind.” This is important because people treatment.24 DRI’s 2000 report on Mexico brought world atten- with disabilities are often subject to involuntary or coercive treat- tion by generating unprecedented international press coverage ment — particularly in mental health facilities. The protection is on these issues.25 After being the subject of this embarrassing also broadly relevant to people subject to treatment in institutions. attention, the government of Mexico led the effort to draft a new Many countries offer care only in the segregated environment of UN Convention on the Rights of institutions. The CRPD is now Persons with Disabilities. available to serve as a guide to what constitutes improper “coer- The first time DRI identi- cion” or “discrimination” under “DRI’s campaign against fied a practice as torture was international law. in 2005 with the publication of Behind Closed Doors: Under the CRPD, “discrimi- torture has provided an Human Rights Abuses in nation on the basis of disability” the Psychiatric Facilities, is an act which “has the purpose opportunity to examine how Orphanages and Rehabilitation or effect of impairing or nul- Centers of Turkey (2005). The lifying the recognition, enjoy- the protection applies to report documented “unmodi- ment, or exercise, on an equal fied” electro-convulsive therapy basis with others, of all human (ECT). ECT is a common (if rights….”20 The CRPD details people with disabilities — controversial) treatment for ways in which government poli- depression. Unmodified ECT cies — even if intended to help and to see how the CRPD’s entails the use of electric shock — may discriminate against without anesthesia or muscle them unlawfully. This includes, influence has helped to relaxants. According to Turkish for example, a protection authorities, some 10,000 people against segregation from soci- were subject to unmodified ECT ety by placing individuals with broaden understanding of in Turkey every year. Within disabilities in institutions (such months after the release of the orphanages, psychiatric facili- what constitutes torture.” report, the government termi- ties, or nursing homes). Article nated this practice. 19 of the CRPD recognizes the right to “live in the community DRI’s report on Turkey has with choices equal to others.” been its most successful challenge to torture, but a subsequent report on Serbia had the most influence on the international The CRPD also clarifies what constitutes improper coercion. understanding of torture. Torment not Treatment: Serbia’s One of the core principles of the CRPD is “[r]espect for inher- Segregation and Abuse of Children and Adults with Disabilities ent dignity, individual autonomy, including the freedom to (the Serbia Report) was published in 2007. The report docu- make one’s own choices, and independence of persons.”21 In ments the detention of children with disabilities in cribs, some the health care context, care must be provided “on the basis tied down permanently in physical restraints. of free and informed consent.”22 The existence of a disability cannot be used to deny this right. Article 12 of the CRPD pro- The Serbia report challenges the prolonged physical restraints vides innovative protections to ensure that people with mental as torture. Even if the stated intent for using restraints is to or physical disabilities enjoy “legal capacity,” including the protect the individual, any mental health professional would right to make legal decisions on an equal basis with others. The have to know that long-term restraints inflict severe pain. CRPD requires governments “to provide access by persons with Serbian authorities claimed to be acting to protect their patients, disabilities to the support they may require in exercising their but DRI called on the international community to reject this legal capacity.”23 stated purpose as a justification. Physical restraints cause suffering well beyond social isolation or seclusion by limiting any form of movement. DRI’s report cited research on the dangers Lessons from DRI’s Campaign Against Torture of prolonged restraints: psychological trauma, physical effects DRI’s campaign against torture has provided an opportunity of muscle atrophy, stunted growth, deformities, organ-failure, to examine how the protection applies to people with disabilities and even death.26 — and to see how the CRPD’s influence has helped to broaden understanding of what constitutes torture. DRI was founded in Manfred Nowak’s Response: A Path-Breaking Report 1993 at a time when the rights of people with disabilities had on Torture and Disability been overlooked by the international human rights community. In an era before the CRPD, DRI sought to demonstrate the In December 2007, the Office of the High Commissioner for Human Rights (OHCHR) convened a meeting of experts to

15 examine the issue of torture and disability, less than a year after Torture at the Rotenberg Center in Massachusetts the CRPD was adopted. The Committee included members of DRI has drawn on Nowak’s report to challenge abusive the UN Committee Against Torture, human rights experts, and practices in “situations of powerlessness” around the world, representatives of disability organizations. DRI presented the including the Judge Rotenberg Center (JRC) in the United Serbia Report along with video of children held in long-term States. JRC is perhaps unique in the world because it has devel- restraint and detention. The official report of this meeting stated: oped techniques of “behavior modification” for children and Many participants agreed that the situation presented adults with disabilities that include the intentional infliction in the video constituted torture as provided in Article 1 of pain through electric shocks, long-term restraints, seclu- of CAT. Further, some noted that situations like the one sion, social isolation. DRI published its findings in Torture in the video were not exclusive to Serbian institutions not Treatment: Electric Shock and Long-Term Restraint in and that it was important to start applying the torture the United States on Children and Adults with Disabilities at protection framework fully to the treatments and condi- the Judge Rotenberg Center (2010; updated 2011). DRI filed tions inflicted on persons with disabilities.27 its report with the Special Rapporteur Against Torture as an “urgent appeal.” This reception of DRI’s report indicates a shift among human rights thinking from the perspective represented by the European JRC has vexed disability rights activists in the United States Court in Herzcegfalvy, which did not recognize the prolonged use for more than three decades. The facility claims that aversive of restraints as any human rights violation. Nowak’s final report treatment is “necessary” because some people with disabilities concluded that “there can be no therapeutic justification for the will not respond to any other form of treatment. Time after time, prolonged use of restraints, which may amount to torture or ill- US courts have upheld aversive treatment at JRC because par- treatment.”28 Nowak’s report cites DRI’s worldwide findings — ents claimed that their relatives had a “right” to this treatment or including DRI’s reports on Turkey and Serbia.29 education under US civil rights law. By stating that the prolonged use of restraints “may” consti- The challenge to aversive treatment as torture is in some tute “torture or ill-treatment,” Nowak avoided classifying this ways easier and in some ways harder than in other contexts. The practice categorically. Circumstances of the case matter.30 The stated intent is to cause pain. Unlike a traditional mental health Special Rapportuer’s analysis recognizes that the stated intent context, there is no need to find implied intent. On the other of the treating professional to provide care is no defense for a hand, the stated purpose of pain is to correct or alleviate the dis- practice that meets the elements of torture. “This is particularly ability. DRI challenged this justification on two grounds. There relevant in the context of medical treatment of persons with are less intrusive and painful alternatives to aversive treatment. disabilities,” says the report, “where serious violations and dis- The great majority of professionals agree that this treatment is crimination against persons with disabilities may be masked as dangerous and unnecessary. DRI also called on Nowak to adopt ‘good intentions’ on the part of health professionals.”31 Nowak a broader position and reject the doctrine of medical necessity. adds: “the requirement of intent in Article 1 of the CAT can Even if pain were an effective treatment, the protection against be effectively implied where a person has been discriminated torture must create an upper limit on the amount of pain that can against on the basis of disability.” be involuntarily induced on any person. Nowak also clarifies the purpose requirement: Nowak responded to DRI’s urgent appeal by expressing concern to the US Department of State. During an interview Whereas a fully justified medical treatment may lead to on ABC News, Nowak stated that the pain inflicted on children severe pain or suffering, medical treatments of an intru- and adults detained at the Rotenberg Center constitutes torture. sive and irreversible nature, when they…aim at correcting “I have no doubts about it. It is inflicted in a situation where or alleviating a disability, may constitute torture or ill- the victim is powerless…. [A] child, in the restraint chair, being treatment if enforced or administered without the free subject to electric shocks, how more powerless can you be.”35 and informed consent of the person concerned.32 The US State Department has never issued a public response While Nowak leaves open what is a “fully justified treat- to Nowak. The Justice Department is still in the process of ment,” he points to what is not: “Torture, as the most serious investigating the Rotenberg Center more than two years after the violation of the human right to personal integrity and dignity, urgent appeal. The US National Council on Disability, the highest presupposes a situation of powerlessness, whereby the victim is federal advisory body on disability, cited DRI’s report calling under the total control of another person. Persons with disabili- the practice torture, and asked Massachusetts authorities to bring ties often find themselves in such situation, for instance when the practice to an end. The director of JRC, Mathew Israel, was they are deprived of their liberty in prisons or other places, or forced to step down after he was indicted for misleading a grand 33 legal guardians.” Nowak makes clear that “it is often circum- jury during an inquiry into a scandal at the institution. Finally, stances external to the individual that render them ‘powerless,’ Massachusetts’s regulatory authorities have banned the use such as when one’s exercise of decision-making and legal capac- of electricity and all severe aversive treatments on any new ity is taken away by discriminatory laws or practices and given admissions after October 30, 2011.36 to others.”34 The new regulations do not protect people already detained at JRC. But they stem the flow of new abuses and they represent a victory for disability rights supporters in Massachusetts after

16 decades of effort. Coming shortly after DRI’s report and con- position DRI took in the case of JRC: that the protection of torture demnation by the Special Rapporteur Against Torture, the timing creates an upper limit of pain that can be induced by the state — of the new regulations is a rare case in which an allegation of whatever the stated purpose may be. torture under international law contributed to protecting citizens in the United States. Conclusions Manfred Nowak’s report outlines the principles to guide how Further Support from Special Rapporteur torture and ill-treatment can be understood to protect people Juan Méndez with disabilities in light of the CRPD. By validating claims of When Nowak’s term as Special Rapporteur concluded, he torture made by DRI, Nowak has helped give specificity to those was followed by Juan Méndez. Special Rapporteur Méndez principles. In the case of prolonged restraints in Serbia, Nowak has not explicitly re-examined the issues analyzed by Nowak shows how intent to cause pain can be implied without specific in the context of treatment for people with disabilities. Méndez evidence of the motivations of treating professionals. Moreover, adopted a position on the prolonged use of seclusion, however, this stated therapeutic purpose of protecting people in their care that compliments Nowak’s approach. does not shield a practice from being labeled as torture. Méndez found that “any imposition of solitary confinement In the Serbia and JRC cases, the powerlessness of children beyond 15 days constitutes torture or cruel, inhuman or degrad- and adults with disabilities detained in institutions plays a role in ing treatment or punishment depending on the circumstances.”37 determining that these individuals were subject to coercion. This In the case of juveniles or people with mental disabilities, how- factor allowed Nowak to call into question claims of “therapeutic ever, Méndez finds that solitary confinement of any duration purpose” in cases where severe pain and suffering had been constitutes cruel, inhuman or degrading treatment under article inflicted — and thus find torture. 16 of CAT. Article 4 of CAT requires governments to “ensure that all In certain circumstances, solitary confinement can rise to the acts of torture are offences under criminal law.” Recognizing level of torture — such as its use for the purpose of punishment.38 practices as torture ensures that health authorities and service While the “purpose” of punishment is relevant, there are also providers can no longer blame the system for its inadequacies. circumstances where purpose does not explicitly figure into a situ- They face personal risk in perpetuating practices that they know ation of torture. A practice may rise to the level of article 1 torture to induce severe pain. The implications of this recognition are “[w]here conditions of solitary confinement are so poor and the enormous for people detained in institutions throughout the regime so strict that they lead to severe mental and physical pain or world. Health, social service, and human rights authorities need suffering.”39 This situation hinges on the severity of pain and not to be sensitized to the fact that people detained in facilities are on the stated purpose of the authorities. Poor conditions may be inherently at-risk of torture. Recognizing abuses not just as caused by a lack of resources, and strict regimes may be imposed inhuman and degrading, but also as torture, will help gain the by authorities who claim to be acting for the safety or therapeutic attention needed to bring these abuses to an end. benefit of the subject. This situation appears consistent with the

Endnotes: When Treatment is Torture: Protecting People with Disabilities Detained in Institutions 1 United Nations Convention on the Rights of Persons with died after he was beaten, placed in physical restraints, forcibly Disabilities, Dec. 13, 2007 U.N. GAOR, 61st Sess., U.N. Doc. medicated, and left without medical supervision. 2006 Inter-Am Ct. A/RES/61/106 [hereinafter CRPD]. H.R. (serc. C) No. 149 (July 4, 2006) at ¶150. 2 Press Release, Department of Public Information, With 20 6 Stanev v. Bulgaria, ¶ 212, Application no. 36760/06, Ratifications, Landmark Disability Treaty Set to Enter in Force on January 17, 2012. 3 May, U.N. Press Release HR/4941 (Apr. 3, 2008), available at 7 Special Rapporteur on torture and cruel, inhuman or degrading http://www.un.org/News/Press/docs/2008/hr4941.doc.htm. treatment or punishment, Report transmitted by note of the 3 U.N. Enable, http:///www.un.org/disabilities/ (last visited Secretary-General, U.N. Doc. A/63/175 (Jul. 28, 2008) (by Manfred February 6, 2012). As of this date, the CRPD was signed by 153 Nowak) [hereinafter Nowak Report]. countries and ratified by 110. The Optional Protocol has been 8 Special Rapporteur on torture and cruel, inhuman or degrading signed by 90 countries and ratified by 63. The United States signed treatment or punishment, Report transmitted by note of the the CRPD on July24, 2009. Secretary-General, para. 78, U.N. Doc. A/66/268 (Aug. 5, 2011) 4 ¶ 4., App. No. 10533/83, E Ct. H.R. Sept. 24, 1993 (“[m]easures (by Juan Méndez) [hereinafter Méndez Report]. taken out of therapeutic necessity cannot be regarded as inhuman 9 See Frédéric Mégret, The Disabilities Convention: Human and degreading treatment.”). Rights of Persons with Disabilities or Disability Rights, 30 Human 5 See Eric Rosenthal & Clarence Sundram, International Human Rights Quarterly 494, 502 (describing how the convention “in stat- Rights in Mental Health Legislation, 21 New York Law School ing the obvious, is also effecting change”). Journal of International and Comparative Law 469, 512 (2002) 10 UN Convention Against Torture, art. 1(1). (reviewing international case law on inhuman and degrading treatment). The most important case from the Inter-American Court is Ximines-Lopes v. Brazil, in which the Court found a violation of Endnotes continued on page 74 the right to life as well as inhumane treatment. Mr. Ximenes-Lopes

17 The Convention on the Rights of Persons with Disabilities in the Post-Lisbon European Union

Jennifer W. Reiss*

Introduction recent development in European law, less heralded, but no less path-breaking than the ATreaty of Lisbon, was the ratification by the European Union (EU) of its first human rights treaty, the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Concluded as a mixed agreement, the CRPD’s pioneering monitoring mechanisms demand a high level of cooperation from both the EU and its Member States. As the Treaty of Lisbon fundamentally changed the frameworks by which the European Union’s institutions operate,1 the EU (at the time, still the European Community) formally participated in the negotiation of its first international human rights treaty, the CRPD.2 But the CRPD is a breakthrough in more ways than one: the CRPD is the first United Nations human rights treaty of the 21st century;3 it adopts a modern “social model” of disability4 to explicitly recognize the legal rights of the world’s largest marginalized 5 6 group, and in a break from its predecessor treaties, Signing of the UN Convention on the Rights of Persons with Disabilities, 2007. the CRPD contains novel provisions for implementa- Source: UN Photo/Paulo Filgueiras tion and monitoring,7 which portend a “progressive[] reconfigur[ation] of the structure and process of human rights oversight.”8 hoped, will be facilitated by these organizational centers. The CRPD thus revolutionizes governments’ accountability to the The CRPD provides for a treaty monitoring body (the international community. Committee on the Rights of Persons with Disabilities) with an international Conference of States Parties to monitor periodic This unusually activist stance from the UN on monitoring State reports and to issue general recommendations, and it and implementation has already grabbed the attention of aca- 10 is supplemented by an Optional Protocol under which it can demics and policy-makers. In Europe, however, the questions receive individual or collective complaints.9 But these traditional posed by the CRPD go far deeper than merely how to more functions and institutions are underpinned by the requirement effectively translate treaty commitments into practice. The con- to establish national “focal points” to facilitate and monitor clusion of the CRPD by both the EU and independently by its steps taken by national and sub-national organs to fulfill the Member States as a mixed agreement generates questions about Convention. This requirement — a first in international human the nature and future of European integration in the context of rights law — effectively charges a named government body expanding EU authority and Member State rejection of formal 11 with oversight of CRPD compliance. The CRPD also requires constitutionalism. How will the EU and Member States imple- cooperation with non-governmental organizations, which it is ment Convention duties in areas of shared competence? As the Commission begins to implement a Code of Conduct under the Convention,12 the practical effectiveness of the Convention within * Jennifer W. Reiss is an associate attorney at White & Case LLP. the EU is at stake. Unless the current Code is revised to provide An earlier version of this paper was drafted while the author was an a concrete formula by which responsibility is divided and action associate of the Center for Human Rights and Global Justice, New taken, the CRPD will remain merely an empty promise of equal York University School of Law. LL.M., Cambridge University, 2010; rights for the disabled. J.D., Harvard Law School, 2011; B.A., University of Pennsylvania, This article proceeds in three primary parts: section one 2007. Many thanks to Fernanda Nicola, Daniela Caruso, and the briefly describes the substance of the CRPD, section two situates Brief staff for helpful comments on drafts, and also to Gráinne de its adoption in the context of European Union law, and section Búrca for advice on an earlier version this article. 18 “[T]he CRPD is in essence a bill of rights for the disabled community, reaffirming that impairments do not negate fundamental protections accorded to persons by virtue of their basic human dignity.”

three recounts and critiques the Code of Conduct which ostensibly participation in public life, among others — as well as more governs how the EU will fulfill its obligations. specific concerns of the disabled community, including: accessibility, independent living, rehabilitation, and personal mobility. The last section of the convention includes articles dealing Provisions of the Convention on the Rights of with logistical issues: data collection, international cooperation, Persons with Disabilities reporting, and monitoring.14 Substantively, the CRPD obligates signatories to go beyond the mere provision of non-discrimination legislation and address Without negating the applicability of pre-existing human 15 the full panoply of civil, political, economic, and social rights rights instruments, the CRPD is in essence a bill of rights for through the lens of disability. Underlying principles animating the disabled community, reaffirming that impairments do not the Convention explicitly include individual autonomy, and “full negate fundamental protections accorded to persons by virtue and effective participation and inclusion in society.”13 Article 4 of their basic human dignity. In this sense, one could argue that of the CRPD requires active and comprehensive state engage- the CRPD should require little accommodation in national legal ment in the human rights of disabled persons. This obligation systems. Presumably, signatories like the EU, which are already is then supplemented by specific provisions in Articles 5 to 30, active in protecting the human rights of its citizens, have gener- which touch on traditional elements of the human rights agenda ally applicable laws in place. The difficulty lies in the disability- — de facto equality, the right to life, judicial access, freedom specific provisions — the core of the Convention — which are from torture (or cruel, inhuman or degrading punishment), designed to mainstream disabled persons and address the existing privacy, rights to home and family, education, employment, and human rights gap engendered by their exclusion from the general population. Governments will have to review nearly the entire corpus of existing law for lacunae ignor- ing the needs of the disabled, from signage on buildings and making public information available through assistive technologies to specialized training for social services employees and the provision of cultural materials and sports activities in accessible for- mats. Indeed, the CRPD would be superfluous if it did not alert governments to, and compel action on those dimensions of human rights protection they have thus far failed to address from a disability perspective. However, the sheer pervasiveness of the neglect the CRPD addresses makes its implementation substantially more complex than other human rights instruments.

All-wheel minibus used for public transport in the mountain valleys of Switzerland, 2011. Source: Flickr user Kecko

19 Adoption by the European Union experimenting with inventive modalities for managing shared Added to the immense task described above are the multiple competences that may be importable into the mixed agreement layers of responsibility and accountability in the EU’s supra- context. national system — where Member States have exclusive legal For example, Council regulations now require Commission competences, the EU has exclusive legal competences, and there observation of bilateral air service agreements, and encourage is a vast interstitial space of shared competences — as well as the acting State to include standardized clauses drafted by the the notion of legal clarity becomes more than a desirable end of Commission in conjunction with the Member States.22 In multi- CRPD obligations, but essential to its implementation. lateral agreements “disconnection” clauses have been added not- In brief, powers — or coming that EU law on point prevails petences — can be exclusive over the international agreement or shared (whether internal to inside the Union, but does not the EU or in its external rela- affect individual Member State 23 tions with non-member states).16 “One must remember obligations. Another option According to Article 2(2) of the is the so-called Open Method Treaty on the Functioning of the that delineating powers of Coordination (OMC) a ‘soft European Union (TFEU), in areas law’ mechanism which stresses of shared competence the Member decentralized, voluntary, mutual States are only free to act to the in the case of the CRPD learning via the setting of guide- extent that the EU has not done lines, timetables, and benchmarks so. There is also a lesser form of means so much more for achieving generalized goals, “supplementary” competence for often announced by the European the EU to support or coordinate than horse-trading in the Council, which are then trans- Member State actions, provided lated into specific national poli- for in Article 2(5) TFEU. It should cies tailored to circumstances in be noted that the TFEU explicitly bland ‘Eurospeak’ of a Member States. The intention is includes the principles of “sincere that civil society and stakehold- cooperation” and “mutual respect” Brussels bureaucrat. It ers are involved in this debate in the exercise of delineated com- and initial policymaking. These petences, meant to reinforce the directly translates into policies are then subject to peer essentiality of loyalty between the review with the objective of EU and the Member States for exchange of best practices and effective action in a cooperative political responsibility thus gradual harmonization of federal structure.17 EU objectives without resort to and — more importantly legislative or regulatory dictates Concluding treaties like the in sensitive policy areas.24 CRPD as “mixed” agreements — i.e. jointly by the EU and its — accountability to fill With that context in mind, Member States — has been the appended to the Council Decision norm when some of the mat- one of the last true gaps concluding the CRPD on behalf of ters covered by the agreement the European Union is a declara- fall outside the EU’s competence, tion of the powers of the Union vis in European human 25 or because in respect of matters à vis the Member States. Many for which competence is shared, of the CRPD’s obligations clearly the Member States have chosen rights law.” engage shared and supplementary to act under their own powers Union competences, particularly rather than through the Union.18 in terms of CRPD Articles 9 and Mixed agreements are necessary 20 on accessibility and personal to maintain the practical effectiveness of a cooperative fed- mobility, respectively. Ostensibly then, this document should be eralist system,19 but they are also politically useful given the the foundation for any further exploration of dividing powers inherent volatility of this governance style.20 Thus far, mixed under the Convention. Unfortunately, it is not very helpful. The agreements have tended to involve discrete issues, like humani- powers of the Union are very general ones, relatively apparent tarian aid, nuclear safety, and participation in the Cartagena from a plain reading of the CRPD. The EU specifies exclusive Protocol on Biosafety.21 Because it does not impose a strict competence regarding its own public administration and shared competence structure on the Commission and Member States, or supplemental competence in areas where it is provided for in mixed agreements offer the space to experiment with creative the TFEU, such as transport, discrimination on the grounds of dis- 26 modes of governance — especially when dealing with convo- ability, employment and vocational training. luted shared competences. Indeed, the Union has already begun The Decision does include an additional appendix to “illustrate” existing Union legislation relevant to matters covered by

20 the Convention, including seventeen items on accessibility, nine implementation provisions of the CRPD, the United Nations on employment and social inclusion, eight on mobility, five on has engaged itself in a quest for continued effectiveness for access to information, five on data collection, and three on rel- the international human rights regime. In the Convention’s evant aspects of international cooperation. However, (1) this list- Code of Conduct, the EU had a similar chance to innovate, ing may or may not be comprehensive and (2) interested parties develop new governance mechanisms, and enhance its ability are left to investigate each of the forty-seven acts independently to fulfill its growing responsibilities in the human rights field. to assess the extent of the EU and Member States’ comparative Unfortunately, the Code of Conduct leaves much to be desired. undertakings. Moreover, the document is somewhat biased in The document is preoccupied foremost with management emphasizing the EU as the predominant actor. Although it might within the UN monitoring context but not truly with the divi- have been appropriate to include some discussion of what is sion of responsibilities between the levels of governance. clearly Member State competence as a counter-point to elucidate Coordination meetings may the declaration of the EU’s be convened on the subject competence, there is no of any type of competency such explicit discussion of prior or concurrent to UN what might be exclusively committee meetings, with the province of the Member “If the EU is serious about referrals on subjects of either States.27 shared or exclusive Union Many of these instru- its obligations under the competence to a Disability ments have as their legal High Level Group. In the basis in Article 114 TFEU Convention, the current Code event of Member State — the European ‘commerce competence over a given clause’ empowering the EU subject, “coordinated posi- to adopt harmonizing legisla- of Conduct is not enough. tions” may be expressed by tion in support of the internal either the EU Presidency, market.28 This is noteworthy The plight of the disabled is an appointed Member State, because the article is sub- or by mutual consent the ject to extensive qualifica- not going to be ameliorated Commission, who will also tions pursuant to political speak in cases of exclusive concerns of the Member Union competence.30 In States, which further com- by streamlined procedures in shared competence, deter- plicates the question of who mining who will make state- is responsible for attend- New York or Geneva.” ments on behalf of the EU is ing to the needs of disabled an issue of “the preponder- consumers. Comprehensive ance of the matter,” a term implementation will clearly which is left undefined.31 take time, resources, and ultimately, political capital within the Only in the event of deadlock on shared competence combined Commission. When seen in that context, the opaquely announced with a pressing UN deadline is there provision for anything division of competences becomes somewhat understandable. but the same vague standards suggested by the EU documents However, one must remember that delineating powers in the case concluding the CRPD. Disagreements are referred to relevant of the CRPD means so much more than horse-trading in the bland Council Working Groups designated by the Presidency and as ‘Eurospeak’ of a Brussels bureaucrat. It directly translates into a last resort, to the Permanent Representatives Committee, who political responsibility and — more importantly — accountability will vote on the matter in accordance with the EU voting rules to fill one of the last true gaps in European human rights law. assigned to the subject.32 Delineating competences means that the paraplegic knows where If the EU is serious about its obligations under the Convention, to turn when she is denied access to public transport, it means that the current Code of Conduct is not enough. The plight of the dis- the schizophrenic can petition to be cared for by his family, rather abled is not going to be ameliorated by streamlined procedures than locked in an institution, and it means that autistic children in New York or Geneva. A better Code would not skirt the issue can no longer be marginalized or excluded from a real education of competences, but instead establish precise circumstances as a burden to the public. There are palpable consequences of the under which the procedures for managing competences are path the EU decides to take. triggered and initial steps are outlined to move from obligation to legislation. And to do so, it would adopt a discursive focus: The Code of Conduct establishing pathways for information sharing and consultation, In late 2010, the Council, Commission, and Member States but couching it in the firmer legal approach adopted by the EU’s adopted a Code of Conduct with the primary purpose of describing existing coordinating Regulations. the function of the Commission as the focal point for imple- For example, the key provision in a revised Code should mentation of the CRPD (in accordance with Article 33(1) stipulate that the entity to which an issue of compliance is first 29 of the Convention). With the inventive monitoring and presented — whether the Member States or the Commission

21 “[T]he fulfillment of citizen-centered governance depends in large part on the cooperative ethos and notion of mutual responsibility suffusing Europe’s chosen style of federalism. The EU’s institutions must collaborate.”

— shall notify all appropriate focal points33 either of (1) the the probability of compliance with the substantive provisions, as action proposed by that body to address compliance in accor- well as buttressing the establishment of the local focal points so dance with an express competence or (2) the concern that key to the Convention’s innovative approach. compliance would be better served by action at another level of A further delineation of areas of competence — complete governance. In the latter case, a proposal or opinion on further with existing affected legislation and proposed additional acts conduct should be appended. This procedure would have to have in both the EU and Member States — is useful if the EU is seri- some appropriate time limitation. ous about effectively implementing the CRPD. In other words, CRPD focal points of nations affected by the proposed without a dualist-style strict division of powers, the onus is on action can then craft a response to the notification. If there is the EU and Member State institutions to behave themselves: to agreement between the Commission and the Member States agree on the extent of the responsibilities on each side, ensure in competency or method, the notifying focal point would be that the network of responsibilities is comprehensive, and stand authorized to proceed. If there is disagreement, the initial noti- by the agreed responsibilities. A precise declaration of compe- fication would act as a binding agreement to enter into mutual tences keeps both sides honest. That said, it may not be realistic discussions on the issue. Efficiency and effectiveness would be to create a straight recital of competences when the legal impact served by forcing participation in the cooperative procedure, so of the CRPD is so pervasive, but something more than the cur- neither the Commission nor the Member States can shirk diffi- rent Code is clearly warranted. cult questions. It also provides a forum for information sharing on better methods and unintended consequences. Discussions Conclusion could trigger notification to and response from the European Parliament to increase democratic participation and the breadth The Treaty of Lisbon is part of an ongoing constitutional of expertise available. process between the European Union and Member States. Increasingly, those “two levels of government are [seen as] There should also be clarity in the procedures regarding what complementary elements of one system” existing “in permanent would happen if negotiations deadlocked. The CRPD obliga- interdependency,” which places the interests of individual citi- tions are obviously ongoing, and thus to be a good global citizens — rather than the state — at the center of its constitutional zen, the EU could not just leave the issue unresolved, however universe.37 Seen in that light, the concurrent advent of Lisbon politically prudent that may be. The EU’s judicial cooperation and the CRPD is powerful. As the international human rights 34 regulations seem to provide for a final resolution in favor system continues to mature and recognize a fuller conception of of the Commission in such cases by replacing the open-ended individual dignity, perhaps unconsciously, the European Union 35 supervision provided for by earlier laws. A fairer and more is moving in a direction that aligns concrete political institutions definitive solution may be to provide for referral to the Court of with that vision. Nevertheless, the fulfillment of citizen-centered Justice of the European Union for an Advisory Opinion on the governance depends in large part on the cooperative ethos and Union powers in controversy after some extended time (such a notion of mutual responsibility suffusing Europe’s chosen style provision would also respond to a potential critique of lack of of federalism. The EU’s institutions must collaborate. judicial oversight, without necessarily encumbering innovation). The conceivable existence of a permanent deadlock in negotia- This obligation is especially profound in external relations tions between Member States and the Commission was a key agreements like the CRPD. In establishing the concept of “focal point that the Court of Justice left unresolved after the case of points”, the UN has recognized that clarity of responsibility and Commission v. Sweden.36 coordination of national action within international organizations is key to effectiveness: mere general mandates and reporting Finally, to be prudent, a revised Code of Conduct would are insufficient to ensure accountability. Although Lisbon include review and expiry provisions, with perhaps a five-year improves coordination on external action with the new unitary limit and explicit provision to send the review report to the UN role of High Representative, a coordination problem remains CRPD Committee for consideration. If anything, such proce- outside the area of common foreign and security policy.38 dures should be welcomed at the United Nations as improving Legislating mutual consultation in the management of shared

22 competences — particularly in agreements like the CRPD where the touchstone of the Convention on the Rights of Persons with responsibilities are difficult to specify outright — is one key ele- Disabilities itself, and that should be the ultimate end of crafting ment in the equation of deepening integration whilst respecting its place in EU law. difference. Respecting and celebrating differences is of course

Endnotes: The Convention on the Rights of Persons with Disabilities in the Post-Lisbon European Union 1 Treaty of Lisbon amending the Treaty on European Union and Doc. A/AC.265/2006/CRP.5 (14 Aug. 2006). Other relevant UN the Treaty establishing the European Community, 13 Dec. 2007, Studies and Reports are accessible at http://www2.ohchr.org/ 2007 OJ (C 303) 1. Further references will be made to the con- english/issues/disability/documents.htm. For an overview of the solidated versions of the Treaty on the European Union [18 May various monitoring mechanisms in the CRPD, see Michael Ashley 2008, 2008 OJ (C 115) 13] and the Treaty on the Functioning of the Stein & Janet E. Lord, Monitoring the Convention on the Rights European Union [18 May 2008, 2008 OJ (C 115) 47] incorporating of Persons with Disabilities: Innovations, Lost Opportunities, and the Lisbon Treaty changes [hereinafter TEU (AA) (‘as amended’) Future Potential, 32 Hum. Rts Q. 689 (2010). and TFEU respectively]. Similarly, for clarity’s sake, this paper 8 Id. at 690. adopts the post-Lisbon nomenclature; the ‘European Union’ (and 9 Optional Protocol to the Convention on the Rights of Persons derivations thereof) will be substituted for reference to all precursor with Disabilities, G.A.Res. 61/106, UN GAOR, 61st Sess. Supp. organizations unless absolutely necessary. No.49, UN Doc. A/RES/61/106/Annex II, at 65 (13 Dec. 2006) 2 See generally, Gráinne de Búrca, The European Union in the [entered into force 3 May 2008]. Negotiation of the UN Disability Convention, 35 Eur. L. Rev. 174 As of August 2011, the Optional Protocol has 90 signatories with (2010). 62 ratifications — not including the EU, although there is a pending 3 Convention on the Rights of Persons with Disabilities, proposal to sign. See Commission Proposal for a Council Decision G.A.Res. 61/106, UN GAOR, 61st Sess. Supp. No.49, UN Doc. Concerning the Conclusion by the EC of the CRPD, COM (2008) A/RES/61/106/Annex II, at 65 (13 December 2006) [entered into 530 final (Feb. 2008). force 3 May 2008; hereinafter CRPD]. As of August 2011 the 10 See, e.g., Stein & Lord, supra note 7; Presentation by Gerard CRPD has 149 signatories with 103 ratifications; the EU and Quinn to the Parliament of New Zealand, 19 Feb. 2009, http:// all EU Member States have signed, and the EU ratified on 12 www.odi.govt.nz/documents/convention/20090219-gerard-quinn- December 2010. See UN Enable, Convention and Optional Protocol address-comvoices-breakfast.doc (last visited Oct. 11, 2010); Signatures and Ratifications, http://www.un.org/disabilities/ European Disability Forum, EDF Contribution to the UNOHCHR countries.asp?navid=12&pid=166 (last visited 19 Aug. 2011). Thematic Study to Enhance Awareness on the Structure and Role 4 For an overview of the social model of disability and its of National Mechanisms for the Implementation and Monitoring contrast to the traditional medical model, see Michael Ashley Stein, of the CRPD (September 2009) www.def-feph.org (last visited Oct. Disability Human Rights, 95 Cal. L. Rev. 75, 85-93 (2007). 11, 2010). 5 Gerard Quinn, A Short Guide to the United Nations Convention 11 Council Decision 2010/48/EC, 2010 O.J. (L 23) 35. The on the Rights of Persons with Disabilities, 1 Eur. Y.B. Disability L. Commission is designated as the “focal point” for coordination 89, 89-90 (2009). under the CRPD. Id., Art. 3. See Delia Ferri, The Conclusion of 6 These include, the Convention on the Prevention of Genocide the UN Convention on the Rights of Persons with Disabilities by (1948), the International Convention on the Elimination of the EC/EU: Some Reflections from a “Constitutional” Perspective all Forms of Racial Discrimination (1965), the International (University of Catania Online Working Paper No. 4, 2010) avail- Covenant on Civil and Political Rights, International Covenant of able at http://www.lex.unict.it/cde/quadernieuropei/serie_speciale/ Economic Social and Cultural Rights (both 1966), the Convention diversita_culturale.asp. on the Elimination of Discrimination against Women (1979), the 12 Council of the European Union, Code of Conduct between the Convention against Torture (1984), the Convention on the Rights of Council, the Member States and the Commission setting out internal the Child (1989), the International Convention on the Protection of arrangements for the implementation by and representation of the the Rights of All Migrant Workers and Members of their Families European Union relating to the United Nations Convention on the (1990) and the International Convention for the Protection of All Rights of Persons with Disabilities, Doc. No. 16243/10 (Nov. 29, Persons from Enforced Disappearance (2006). 2010) available at http://register.consilium.europa.eu/pdf/en/10/ 7 CRPD, supra note 3, Arts. 33-40. For a primer on traditional st16/st16243.en10.pdf [hereinafter Code of Conduct]. monitoring systems for UN human rights treaties, and critiques 13 CRPD, supra note 3, Art. 3(a), (c). thereof see Philip Alston & James Crawford eds., The Future of 14 For a more detailed analysis see Anna Lawson, The United UN Human Rights Treaty Monitoring (2000); see also Off. UN Nations Convention on the Rights of Persons with Disabilities: High Comm. for Hum. Rts [OHCHR], Expert Paper on Existing New Era or False Dawn? 34 Syracuse J. Int’l L. & Comm. 563, Monitoring Mechanisms, Possible Relevant Improvements and 590 et. seq. (2007). Possible Innovations, UN Doc. A/AC.265/2006/CRP.4 (16 Jan. 15 CRPD, supra note 3, Art. 4(4). 2006); UN Dep’t of Econ. & Soc. Affairs, National Institutional Frameworks and Human Rights of Persons with Disabilities, UN

Endnotes continued on page 75

23 The Conflict Surrounding Universal Access to HIV/AIDS Medical Treatment in South Africa

By Kaila C. Randolph*

were living with HIV/AIDS.3 Africa continues to be the continent most highly affected by the epidemic, accounting for 22.9 million of all persons living with HIV/AIDS in 2010.4 South Africa is one of the worst impacted countries in the world, with more than 5 million people living with HIV/ AIDS.5 By refusing to support the provision of free antiretroviral (ARV) treatment for all infected individuals, South African government officials are major obstacles to efforts to stem the pandemic.6 Refugees in South Africa are further disadvantaged because medical professionals often refuse to provide them treatment.7 Access to healthcare and medical treatment are fundamental human rights protected under international law.8 Recognition of this right can be found in Article 25 of the Universal Declaration of Human Rights which states, “Everyone has the right to a standard of living Today, 34 million people are living with HIV/AIDS worldwide, whereas over 22 million of adequate for the health and well-being of him- those infected are residing in Africa. South Africa, one of the worst countries impacted by the self and of his family, including food, clothing, pandemic, hosts over 5 million people living with HIV/AIDS. Source: Wikimedia Commons housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other Introduction lack of livelihood in circumstances beyond his control.”9 Despite very individual has the human right to life, a principle these protections, former President Thabo Mbeki and his admin- found in every international human rights treaty, con- istration established an HIV/AIDS policy that denied access Evention, and national constitution. Nonetheless, what to treatment to individuals with HIV/AIDS. After much con- can persons with HIV/AIDS do when their government denies demnation and a shift in political power in the last two years, the them access to medical treatment? What can refugees do when South African government finally developed an advanced policy they are denied health care, simply based on their identity as for HIV/AIDS prevention and treatment; however, healthcare foreigners? Consider the case of Paula Chirundu, a 34 year-old professionals continue to refuse to provide treatment to refugees refugee from Zimbabwe, living in South Africa. After she tested on account of their status as foreigners. Healthcare profession- positive for HIV in 2005, she was referred to Hillbrow Hospital als’ refusal to provide ARV treatment violates the rights of in Johannesburg, where health professionals illegally refused to refugees under domestic law; whereas the government’s failure provide her antiretroviral medications because she was a refugee to enforce such laws violates the right to access healthcare under 1 and did not have citizenship documentation. both domestic and international law. 2 Human immunodeficiency virus (HIV), which causes An analysis of the HIV/AIDS pandemic in South Africa acquired immunodeficiency syndrome (AIDS) is one of the reveals that refugees’ rights to access adequate mental and most dangerous and infectious diseases to plague the global physical health care, as protected by international treaties and human population. In 2010, an estimated 34 million people the South African Constitution, are regularly violated by medical professionals who refuse to provide treatment. South Africa is a signatory state to the International Covenant on Economic, * Kaila C. Randolph is an LL.M. candidate (expected 2012) at Social and Cultural Rights (ICESCR), Article 12 of which obli- Europa-Universität Viadrina and a former Executive Editor of the gates States Parties to ensure the physical and mental health Florida A & M University Law Review. The author wishes to thank of every human being within their territory. Equally impor- Europa-Universität Viadrina and Meagan L. Johnson, Esq. for invalu- tant, South Africa is also a signatory state to the International able comments and suggestions through the drafts of this article. 24 Covenant on Civil and Political Rights (ICCPR), which provides regarding refugee rights among healthcare professionals, reduce in Articles 6(1) and 26, respectively, that all persons within the xenophobia and discrimination, and cease the identity-based territory of a State Party have the inherent right to life and are conflict in South Africa. entitled to equal protection of the law without discrimination. South Africa is also a party to the 1951 Convention on the Status Refugees and the Continued Fight of Refugees, which guarantees that refugees exercise their fun- for Medical Treatment damental rights and freedoms without discrimination and also be afforded the same treatment as nationals pursuant to Article 20. “Xenophobia is still here. Only now it lives at the hospital.” — Sefu, Johannesburg14 The Government of South Africa is also bound by domestic 15 legal obligations to remedy unequal access to ARV treatment. Since the departure of the Mbeki administration, the The Bill of Rights of the Constitution of the Republic of South Government of South Africa undertook new efforts to combat Africa states that everyone has the right to medical treatment.10 HIV/AIDS with its “Strategic Plan for South Africa 2012-2016,” The Refugee Act of 1998 ensures that refugees are guaranteed administered under the guidance of the South African National the same rights as South African nationals under the Bill of AIDS Council. Under the Strategic Plan, the Council is work- Rights of the South African ing to reduce the number of Constitution.11 In 2007, the new HIV infections by at least South African Department of fifty percent, and to decrease Health released a statement the impact of HIV/AIDS on reasserting that foreigners have “However, despite the society by expanding access the right to ARV treatment to ARV treatments to at least in South Africa regardless of efforts of the South African eighty percent of all persons 16 their legal status, and should infected. The World Health be provided free healthcare government to strengthen Organization reported that if they lack the necessary finan- within Sub-Saharan Africa, cial resources to attain health- the number of individuals care on their own.12 Finally, their health system and receiving treatment for HIV/ as a State Party to the African AIDS successfully rose from Charter on Human and Peoples’ remove barriers to access 2,950,000 in 2008 to approxi- 17 Rights, South Africa is commit- mately 3,910,000 in 2009. ted to protecting the rights and healthcare, vulnerable However, despite the efforts freedoms recognized within of the South African govern- the Charter, without distinc- ment to strengthen their health tion based on race or ethnicity. groups, such as refugees, system and remove barriers These rights include the right to access healthcare, vulner- to life, the right to health, and continue to face difficulties able groups, such as refugees, the right to non-discrimina- continue to face difficulties in tion.13 Thus, the South African in receiving treatment.” receiving treatment. government, which funds the According to Article 27 free ARV medications, has of the Constitution of the international, regional and domestic legal obligations to prevent Republic of South Africa, “(1) Everyone has the right to have discriminatory treatment of refugees in the provision of medical access to – (a) health care services, including reproductive treatment. To do this, the Government of South Africa must inves- health care; (2) The state must take reasonable legislative and tigate abuses and establish a working dialogue between health other measures, within its available resources, to achieve the professionals and refugees to stem the spread of HIV/AIDS. progressive realization of each of these rights; and (3) No one The intent of this article is to illustrate the conflict surrounding may be refused emergency medical treatment.” In Minister of the HIV/AIDS epidemic in South Africa and to provide recom- Health v. Treatment Action Campaign (TAC), the Constitutional mendations to the government regarding the steps necessary Court of South Africa asserted that the equal accessibility to to achieve universal access to medical treatment. Part Two AIDS medical treatment is a socio-economic right guaranteed 18 illustrates how xenophobia and misinformation by medical pro- by the Constitution. In TAC, the complainants alleged that fessionals results in discrimination towards refugees with HIV/ the restrictions on the provision of ARV drugs to HIV-positive AIDS, thereby violating domestic and international legal obliga- pregnant women violated the right to healthcare services of oth- 19 tions. Part Three analyzes how the refusal to treat refugees has ers under sections 27 and 28 of the Constitution. The Court become a conflict based on identities and assesses what potential relied on the reasoning in South Africa v. Grootboom, finding methodologies the government could develop to ensure univer- that the Constitution obligates the State to protect economic 20 sal access to ARV treatment. Part Four notes the importance rights, such as equal access to health-care. Despite the dif- of resolving and managing this conflict to prevent continued ficulties in meeting such obligations, the Constitution requires hostilities between refugees and health professionals, result- the State to protect these rights within their available resources 21 ing in HIV/AIDS discrimination. Finally, Part Five presents and ensure enforcement. Thus, the Court held that the South concluding conflict resolution measures to increase education African government has the obligation to enforce the right to 25 access healthcare, and take the necessary legislative measures to professionals exhibit ill-treatment towards patients based on ensure accessibility of ARV medications.22 their foreign identity, by withholding treatment or demonstrat- ing any form of discrimination motivated by hostility towards The right to equal-access for medical treatment was expanded foreigners.32 In 2011, SAMP conducted a study investigating to include individuals with refugee status under the Refugee Act the existence of medical xenophobia in the South African public of 1998 (Act). Once individuals are granted refugee status, they health system finding that medical xenophobia is manifested by are provided identification cards to be shown at local hospitals the following: (1) patients are required to show identification and clinics.23 Pursuant to the Act, refugees enjoy the same rights documentation and proof of residence status prior to treatment, guaranteed by the Bill of Rights of the Constitution. Therefore, however, those lacking documentation are denied treatment; (2) refugees are guaranteed access to medical care.24 In a response health professionals refuse to communicate with patients in a to reports that a large number of refugees were being refused common language or allow the use of translators; (3) treatment treatment by medical professionals, the Department of Health is sometimes accompanied with xenophobic statements, insults released a Revenue Directive to all hospitals and clinics asserting and other verbal abuse; (4) non-South African patients are the healthcare rights of refugees with or without an identification required to wait until all South African patients have received card to medical treatment under the Act.25 The Revenue Directive medical attention, even if they have been waiting longer for emphasized refugees’ right to access both basic healthcare and treatment; and, (5) refugees and asylum seekers have such dif- ARV treatment, whether or not they had an identification card. ficulty accessing ARV for HIV in public hospitals that many are Refugees are exempt from paying for ARV treatment services, forced to rely on NGO treatment programs.33 For instance, as Dr. irrespective of the location or level of medical institution (i.e. Bernard Uzabakirilo, a medical practitioner at the Ekhuruleni public or private clinics).26 Hospital outside of Pretoria, explains: South Africa’s international legal obligations under the ICESCR When a refugee comes to the hospital they have to also require the government to uphold the right to healthcare for all, present their documentation to prove their refugee including efforts aimed at prevention, treatment, and the coor- status, but the staff at the registration point don’t [sic] dination of programs ensuring everyone medical service and recognize the legitimacy of their identification cards medical attention in the event of illness.27 The Committee on the because they haven’t been properly educated.34 ICESCR has examined the right to health under the Covenant, and determined that there are four components of accessibil- Thus, rather than be registered as a refugee at the local ity: non-discrimination in accessibility; physical accessibility hospital or clinic, the individual is registered as an illegal immi- for all persons within a safe physi- grant — and thus not permitted to cal reach to medical care; economic receive free ARV treatment — and accessibility and affordability for is required to pay a consultation fee all, including socially disadvantaged prior to receiving medical assistance, groups; and information accessibility “Refugees are also often ranging from $290 to $2,450, where all persons have the right to depending on the refugee’s medi- seek and receive information regard- harassed, ridiculed and cal condition.35 In addition to the ing health issues.28 The Committee costliness of treatment, the language maintains that state obligations also persecuted by health barrier between refugees and health- include acceptability, where medical care professionals frequently delays personnel must be respectful of the or denies treatment. Dr. Uzabakirilo culture of the individuals, minorities, care workers, when explains, “When refugees phone and other vulnerable groups seeking or come to the hospital and can’t medical treatment.29 Accordingly, seeking ARV treatment speak English they are made to sit pursuant to the ICESCR, the South down and wait for a translator. I African government must ensure that at local hospitals.” have seen patients who are made to refugees are not being discriminated wait for eight hours.”36 Currently, against on any grounds, that they the Department of Health does not have physical access to local hospitals and clinics, that they provide translators; thus, refugees seeking medical assistance are properly being informed of their rights to health services as must provide their own interpreters. Because of the costliness of refugees (including information on prevention and treatment), interpreters, many of these refugees cannot afford to pay for a and that ARV treatments are economically affordable given that translator to assist them in the long wait for medical attention.37 many refugees are unemployed or lack the financial means to Refugees are also harassed, ridiculed and persecuted by pay for treatment. Equally significant, the government is also health care workers, when seeking ARV treatment at local hos- required to ensure that medical officials are respectful of refu- pitals.38 For example, Eric, a 33 year old refugee from Burundi, gees seeking healthcare services. explained that xenophobic attitudes among health professionals Nevertheless, the right to medical treatment of HIV-positive are widespread, and many refugees are moved to the back of refugees is often infringed, as a result of xenophobic30 atti- the line awaiting ARV treatment, ignored, or refused medica- tudes of health professionals, thereby inhibiting their ARV tion.39 Said, a refugee from the Akasia refugee camp in Pretoria, treatment.31 According to the Southern African Migration reported to Human Rights Watch: Programme (SAMP), medical xenophobia occurs when health

26 “The government fails to fulfill its legal obligations under the Constitution and international treaties when it does not hold accountable health professionals and government officials that allow unlawful discrimination against refugees in the provision of ARV treatment.”

I went to the hospital yesterday; I was The AIDS Conflict of South Africa sick. I called an ambulance but it didn’t and its Refugees come, so someone gave me a ride. At In an effort to appropriately analyze the hospital they told me, “this is not the discord between health care workers your country, we can’t treat you,” and and refugees, a conflict resolution analyti- sent me away. I left the hospital and cal framework may prove useful. Conflict went to another clinic. One doctor, a resolution is a conception of law in action female doctor, was saying, “Just treat where human behavior is modified to avoid him,” but some others were saying, potential lawsuits so that an agreement “Don’t treat him.” Some of them said can be made between parties without sig- I was a human being and deserved nificant expense or time.45 Such conflict treatment, and others fought her right prevention and management strategies are in front of me. Eventually they gave thus used to promote peaceful coexistence me medicine. I have been in South between groups of people, find peaceful Africa for 7 years as a recognized ways to achieve resolutions, and facilitate refugee…. I used to only go to private an ongoing dialogue in meeting a com- hospitals where I paid for treatment. I mon goal. An analysis through the con- never had a problem there. Only later flict resolution framework of the unequal when I started going to public hospitals healthcare provided to refugees may aid the 40 would I be treated like this. identification of power dynamics between The United Nations High Commissioner the relevant parties (government, health- for Refugees (UNHCR) has also reported care workers, and refugees), and the con- cases where HIV/AIDS positive refugees flict prevention and management methods who initially began ARV treatment in their being used to fight unequal access to ARV home countries, were refused treatment treatment. 41 in South African clinics. According to Xenophobic health care professionals the UNHCR senior regional HIV and When refugees are incorrectly characterized as refusing to abide by their aforementioned public health coordinator, Gloria Peutras, illegal immigrants by xenophobic healthcare legal obligations to treat refugees is a contin- these cases involved nurses and doctors professionals, they are prohibited from receiving uous disagreement dividing the government, who were misinformed about the right of free ARV treatment and thus required to pay health care professionals and refugees. This refugees to receive free ARV treatment, substantial fees for medical assistance. Source: disagreement has created an identity-based MappingPathways.blogspot.net displaying xenophobic attitudes and pro- conflict: where differences between groups 42 viding treatment to South Africans only. are divided along ethnic, political, religious, It is important to distinguish that the poor education of medical or cultural lines and regard the people’s need for dignity, recogni- professionals regarding the rights of refugees is distinct from tion, safety, and a healthy lifestyle, or control.46 When healthcare xenophobia. Such misinformation is a result of many factors, workers refuse to treat HIV-positive refugees because they are including a lack of resources, failure of healthcare administra- not South African and speak a foreign language, the physical tors to inform medical workers regarding refugee rights to ARV and mental health of refugees is threatened, and the risk that the treatment, and the government’s failure to enforce the laws. As virus will be spread is increased. The conflict surrounding access 43 a result, many refugees succumb to treatment interruption out to ARV treatment exists as a result of hostile perceptions and of fear of intimidation or rejection. Jonathan Whittall, program attitudes towards refugees, and the internal desire to preserve director for Médécins Sans Frontiéres (MSF) asserted that such resources for South African nationals only. The government “often . . . MSF personnel will have to accompany refugees to fails to fulfill its legal obligations under the Constitution and 44 clinics to ensure they are given medical attention.” international treaties when it does not hold accountable health

27 professionals and government officials that allow unlawful dis- First, South African health professionals must abide by their crimination against refugees in the provision of ARV treatment. Constitution, the Refugee Act of 1988, and other binding legal instruments that guarantee refugees the right to medical access and ARV treatment. Equally important, the government is Conflict Prevention, Management obligated to enforce these laws against non-compliant health and Resolution of the HIV/AIDS Epidemic administrators and hospitals. Secondly, the government should For South Africa’s new government to meet its human construct more health care facilities near refugee camps, with rights obligations towards refugees, the government must better an objective of prevention and treatment. The institution of these inform medical professionals about the healthcare rights of refu- facilities will not only encourage refugees to seek treatment, but gees, establish preventive measures, and produce and manage will also encourage HIV-positive individuals to remain on treat- solutions. Such efforts will assist in rectifying existing conflict ment, providing them medications, psychological therapy, and between xenophobic or misinformed health care professionals follow up communications with health specialists. and refugees. Conflict prevention may be direct or structural in nature. Direct conflict prevention involves the implementa- Although the construction of health facilities near refugee tion of measures that avoid short-term escalation of a potential camps would be time consuming and costly, the government has conflict.47 Structural conflict prevention establishes long-term access to financial resources that may be utilized for such objec- methods that focus on the true underlying causes of the con- tives. For example, in 2011 the government received $548.7 flict.48 In order to combat the increased spread of HIV/AIDS, million from the United States President’s Emergency Plan for 51 the Government of South Africa could approach the core prob- AIDS Relief (PEPFAR), the U.S. government’s international lem of medical access for refugees with structural conflict pre- strategic plan to assist countries that have been devastated by the 52 vention methods in order to address the underlying xenophobia HIV/AIDS epidemic. Between 2004 and 2011, South Africa or misinformation of healthcare workers. received more than $3 billion to support HIV/AIDS prevention, treatment and care programs.53 Through the use of PEPFAR, Once the government recognizes that structural conflict reso- South Africa may appropriate funding to the construction of lution can address the ongoing discrimination against refugees, health facilities near refugee camps and meet the Act’s inter- 49 officials should then manage the conflict. The government national objective in providing treatment, care and prevention could manage the conflict by facilitating an open dialogue programs. The establishment of these facilities would not only between the government, health officials, and NGOs that work meet the government and PEPFAR’s objectives, but would also with refugees, all of whom share a common interest in increased relieve South Africa of seeking governmental funding for such access to ARV treatment. Representatives from the Department programs elsewhere. of Health could work in coordination with NGOs in collecting data of refugees denied ARV treatment as a result of xenophobia. Furthermore, the South African government should develop Collection of reliable data will facilitate open dialogue between and continue an interactive dialogue between refugees and all parties. Sensitization of public officials and healthcare pro- healthcare professionals. Refugees should be informed of their viders to the circumstances of refugees could further combat human right to access medical treatment, and that the egregious underlying xenophobia. refusal by hospitals is unlawful. In addition, medical practitioners must understand that refusing treatment to refugees is illegal. The process of conflict management is necessary to create The government ought to work in conjunction with human rights a strong foundation for more effective and productive conflict NGOs in providing informational workshops regarding these 50 resolution through both accommodation and cooperation. rights at refugee compounds, and anti-discrimination and toler- ance seminars at local hospitals. Finally, the government should make every effort to properly and expeditiously investigate filed complaints initiated by refugees, when a hospital refuses treatment. Such inquiries will provide the government a proper assessment of the challenges still facing ARV treatment and how South Africa can improve strategies targeting universal access. Although the Southern region of Africa has a substantial influx of refugees, documenting approximately 146,000 persons at the end of 2010,54 the government should utilize funding appropriated for combating HIV/AIDS, such as PEPFAR funds, in incorporating the aforementioned workshops, seminars and other methods within their prevention and treatment programs. Such methods practiced in numerous hospitals and refugee camps will undoubtedly reach the large number of health officials and refugees affected by the identity-based conflict and decrease the lingering xenophobic attitudes currently hindering ARV treatment.

Patients wait in line for ARV treatment at a local South African clinic. Source: Insight/Panos Pictures 28 Conclusion may systematically begin using conflict management methods, South Africa has a history of neglecting to provide ARV such as constructive open dialogues between the parties, result- treatment to infected persons. Today, refugees are repeatedly ing in a solution that meets everyone’s common positive objec- rejected at local hospitals and HIV/AIDS clinics. Further resis- tive: reducing the spread of HIV/AIDS through universal access tance to de-escalating this conflict, which is based on identities to ARV treatment. and needs, is dangerous given the statistical evidence of HIV- The South African government should take the following positive persons living in South Africa, and among asylum- measures to resolve the conflict: (1) agree to take action and seekers. With so many refugees residing in South Africa, it is enforce the Constitution and aforementioned human rights obli- not only necessary to treat native South Africans to prevent the gations upon health administrators and hospitals; (2) guarantee spread of the virus, but all persons, regardless of their ethnicity security in that refugees will not be turned away from treatment, or nationality. by conducting investigations and follow-up inquiries with hos- Attention should be given to removing the barriers that pitals, and thereby imposing fines, should examinations reveal refugees face in obtaining ARV treatment in South Africa. The that health professionals are methodically discriminating against hostile attitudes by xenophobic healthcare professionals towards refugees; (3) assert that the interests of preventing the spread of refugees, the government’s lack of authoritativeness in tackling HIV/AIDS is of equal importance with those who are infected; the issue, the resulting effects, and the common need for health- and (4) demonstrate that the refugees’ fundamental need for care resources, demonstrate a clash in the common goal among ARV treatment is recognized. Only through effective collabora- all actors involved to combat HIV/AIDS. If the discourse is tion between the Government of South Africa and healthcare approached with conflict-prevention measures, the government professionals, will refugees enjoy the equal access to ARV treatment required under both domestic and international law.

Endnotes: The Conflict Surrounding Universal Access to HIV/AIDS Medical Treatment in South Africa 1 “Treatment Interrupted” in Welcome to South Africa? A Special 9 Universal Declaration of Human Rights, G.A. Res. 217A (III), Report on the Systematic Abuse of Immigrants, Equal Treatment art. 25, para. 1, U.N. Doc. A/810 (Dec. 10, 1948). Magazine of the Treatment Action Campaign, June 2008, at 11. 10 “(1) Everyone has the right to have access to: (a) health care 2 “HIV is a lentivirus, and like all viruses of this type, it attacks services, including reproductive health care; (b) sufficient food the immune system. Lentiviruses are in turn part of a larger group and water; and, (c) social security, including, if they are unable of viruses known as retroviruses. The name ‘lentivirus’ literally to support themselves and their dependents, appropriate social means ‘slow virus’ because they take such a long time to produce assistance. (2) The state must take reasonable legislative and other any adverse effects in the body. They have been found in a number measures, within its available resources, to achieve the progressive of different animals, including cats, sheep, horses and cattle. realization of each of these rights. (3) No one may be refused emer- However, the most interesting lentivirus in terms of the investigation gency medical treatment.” S. Afr. Const., 1996 art. 27, § 1, 2. into the origins of HIV is the Simian Immunodeficiency Virus 11 Refugees Act 130 of 1998, ch. 5, art. 27 (b) (S. Afr.). (SIV) that affects monkeys, which is believed to be at least 32,000 12 Leslie Odendal, Rights for Foreign Nationals, in Equal years old.” The Origin of Aids and HIV and the First Cases of Aids, Treatment Magazine of the Treatment Action Campaign 11 Avert, http://www.avert.org/origin-aids-hiv.htm (last visited Apr. (Sept. 2010). 22, 2011). 13 The African Charter on Human and Peoples’ Rights holds that 3 Key Facts on Global HIV Epidemic and Progress in 2010, every person within the territory of a state party is entitled to the World Health Org., http://www.who.int/hiv/pub/progress_ enjoyment of the rights and freedoms enumerated in the Charter, report2011/global_facts/en/ (last visited Feb. 17, 2012). without distinction of his or her race, ethnicity, color, gender, 4 HIV/AIDS in Africa, Avert, http://www.avert.org/hiv-aids- language, religion, political opinion, national and social origin, africa.htm (last visited Feb. 17, 2012). fortune, birth or other status. African Charter on Human and 5 The Henry J. Kaiser Family Found, U.S. Global Health Policy Peoples’ Rights art. 2, June 27, 1981, OAU Doc. CAB/LEG/67/3 Fact Sheet 1 (2010), http://www.kff.org/hivaids/upload/3030-15.pdf. rev. 5, 21 I.L.M. 58 (1982). Article 4 guarantees that every person 6 Antiretroviral therapy (ART) is the medical treatment of HIV/ has the right to life; Article 16 provides that every individual has AIDS through the use of at least three antiretroviral drugs (ARV) to the right to the enjoyment of physical and mental health and that decrease the progression of the HIV virus. Antiretroviral Therapy, state parties must take the appropriate and necessary measures in World Health Org., http://www.who.int/hiv/topics/treatment/en/ protecting such health by ensuring medical treatment to the ill; and, index.html (last visited Apr. 22, 2011). Article 20 holds that all individuals shall be equal and enjoy the 7 See Jonathan Crush and Godfrey Tawodzera, Medical same respect and obtain the same rights as one another. The Charter Xenophobia: Zimbabwean Access to Health Services in South also obligates individuals to honor the right to non-discrimination, Africa 12, 26-27 (2011), http://www.queensu.ca/samp/ guaranteeing that all persons respect one another without prejudice. sampresources/samppublications/policyseries/Acrobat54.pdf. Id. art. 4, 16, 20, 28 June 27, 1981. 8 See Universal Declaration of Human Rights, G.A. Res. 217A 14 No Healing Here: Barriers to Obtaining Health Care, Human (III), art. 25, para. 1 , U.N. Doc. A/810 (Dec. 10, 1948); see Rights Watch (Dec. 07, 2009), http://www.hrw.org/en/node/86959/ International Covenant on Economic, Social and Cultural Rights, section/8#_ftn166. G.A. Res. 2200A (XXI), art. 12, para. 1, 2(c), (d), U.N. Doc. A/6316 (Dec. 16, 1966). ; see International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 6, para. 1, 21 U.N. Doc. A/6316 (Mar. 23, 1976). Endnotes continued on page 76

29 Interview with Oliver Lewis, Executive Director of the Mental Disability Advocacy Center

Human Rights Brief: Please describe your background, and how you came to be involved in the field of disability rights in general, and mental health advocacy in particular? Oliver Lewis: The Freudian answer is that my mother is a psychiatrist for people with intellectual disabilities, and as a kid I spent some of the summer vacations in Brentry Hospital, a mental asylum in Bristol which was built in 1898 and closed in 2000. I used to sit in the occupational therapy department and ‘play’ with the ‘patients’. As a child I saw the de- institutionalization process, and saw how people inside the system can play a key role in transitioning to a more humane system. Years later, I studied law at the London School of Economics, where I met Professor Jill Peay (she had just arrived at LSE and I was in her first criminal law class). Jill has researched at the interface between mental health and law and I found all of this fascinating. People tend to think that this ‘mental health law’ is narrow and obscure, but it’s not at all. The rights of people with disabilities cut across so many legal areas: constitutional and administrative law, family law, social security law, health law, criminal law, property law, contracts and torts, international human rights law, public international law. Not to mention other domains such as public policy, political and moral philosophy and sociology. HRB: Please provide a brief overview of the mission and vision of the Mental Disability Advocacy Center (MDAC). O.L.: MDAC was set up ten years ago to advance the rights of children and adults with intellectual disabilities or psycho-social disabilities. We achieve this through three organisational objectives: O.L.: MDAC works on these areas because they represent six of the most ingrained areas of human rights violations, so 1. Creating a body of progressive jurisprudence; they’re all quite challenging! If I picked one that is particularly 2. Instigating law reform; challenging, it would be the right to legal capacity. This sits at 3. Empowering people with disabilities and promoting the core of what we do, because essentially we’re battling against participatory politics. centuries of history where people have been labelled as incom- We’re an advocacy organisation and work with disabled petent and useless. Medicine and law have conspired to label people’s NGOs, to carry out hard-edged advocacy such as people and then them their autonomy, their money, their homes. strategic litigation, parliamentary and governmental advocacy. They have been legally transported into remote institutions We also work at the UN and European and African regional where they are injected with chemicals to keep them quiet. This levels in various ways to advance the international legal and is done in the person’s ‘best interests’, under the watch of doc- policy frameworks. tors, and with the approval of judges. In a sense, the other human rights areas which we work on flow from this conceptualization HRB: Your website mentions six human rights areas that of a person with disabilities as sub-human. So we are fighting MDAC works on. In your view, is there one in particular that against segregated schooling, against congregated institutional presents a unique set of challenges?

30 warehousing, against torture and ill-treatment, against denial O.L.: The CRPD is a human rights text. As such it is a result of legal aid and access to justice, against political exclusion. of intense negotiation and ultimately of horse-trading and political compromise. The CRPD really does express rights in a fresh HRB: At present, are there any particular regional human and different way, and innovates by, for example, establishing rights systems — or perhaps any individual countries — that national implementation and monitoring mechanisms. That said, stand out in their approach and deserve recognition for their a number of provisions which have given rise to intense debate. advances in the field of mental health advocacy? For example some people argue that Article 14 read together O.L.: There are numerous examples of promising practice with Articles 12 and 25(d) of the CRPD mean that no-one can which tend to be initiatives by people with disabilities or their ever be subject to forced psychiatric interventions (medication families which are grassroots, under-valued and in policy terms, usually injected, electroshock, or physical restraints and seclu- unevaluated. The trouble about small scale innovations is that sion). Others justify such treatment for people lacking capacity they are rarely scaled up by government, because of compet- to make healthcare decisions need to have access to healthcare ing interests: some governments are more than happy to let the on an equal basis with others, whether they have disabilities or initiatives happen but are not willing to invest in scaling them not, and one might assess ‘capacity’. Given that nothing will up (despite financial and social benefits), some governments change if the medical fraternity digs in its heels, I think the UN are more concerned about unions than people with disabili- Committee on the Rights of Persons with Disabilities should ties, some devolve responsibility to municipalities which can reach out to the psychiatric community, and bring them into the be more interested in local employment figures than they are discourse and provide clearer guidance. There are logistical and in the right to live in the community. And many governments political hurdles to overcome, but it is possible. are not providing financial investments even into monitoring HRB: Your article in this issue of the Brief ends with a call to human rights implementation: let alone adequately fulfilling action for people to get involved. If you were addressing those of their human rights obligations. No country is perfect. People our readers who are contemplating a career in disability rights, often point to Sweden or Canada as examples of fantastic laws what might you suggest? and practices. Undoubtedly what happens in those countries is measurably better than what happens in other places, but talk to O.L.: There are lots of things you can do: volunteer at a people with disabilities, talk to people from ethnic minorities, local disability organisation, be active at the political level, do talk to transgender people from those countries: things are not a course to get up to speed with international developments, all rosy and we must guard against generalities of ‘good country’ come to MDAC’s summer school or come and intern with us or and ‘bad country’! another NGO! HRB: Referring to the Convention on the Rights of Persons Lindsay Roberts and Christopher Tansey, J.D. candidates at with Disabilities (CRPD), are there any places where you feel the American University Washington College of Law, conducted it falls short of offering the sort of promotion and protection this interview via email for the Human Rights Brief. MDAC considers significant and necessary?

31 Statement by Claudio Grossman, Chairperson of the Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, before the 66th Session of the United Nations General Assembly

Chairperson, Distinguished Delegates, Colleagues and Friends, Madagascar and Djibouti, which will be considered as a matter of priority at the next session beginning on October 31. The It is an honor to address this General Assembly, now for the Committee also deeply regrets that only two States have submit- third time, in my capacity as Chairperson of the Committee ted initial reports during the past year and that 30 States parties against Torture. I am pleased to be in the company of my col- have yet to present their initial report, many of which are more league Malcolm Evans, Chairperson of the Subcommittee on than a decade overdue. The Committee calls upon these States Prevention of Torture as well as with the Special Rapporteur parties to promptly submit their overdue initial reports so that we on Torture, Juan Mendez. Our joint presence here today under- can initiate a dialogue contributing to the realization of the goals scores the ongoing cooperation between the Committee, the set forth in the Convention. Subcommittee and the Special Procedure of the Human Rights Council, and contributes to enhancing the understanding of our The Committee is also very concerned that at least 65 States complementary and mutually reinforcing work. parties currently have overdue periodic reports, thereby imped- ing the monitoring functions of the Committee you established For each of us this occasion is an essential opportunity to to ensure compliance with the Convention. We all know that law engage in a dialogue with you, member States of the United needs to be taken seriously, and that the Convention’s obligations Nations, who adopted the Convention against Torture in 1984. We have been voluntarily assumed by States parties. These past due look forward to hearing your views as to how we can achieve full periodic reports should be submitted to the Committee without realization of the objectives of the Convention, which today has further delay. 149 States parties. Today’s dialogue complements and continues the Geneva-based annual meetings that the Committee holds with In an effort to assist States parties to comply with their States parties as well as the State technical consultation held in Convention obligations, the Committee introduced an optional Sion, Switzerland, on May 12-13, 2011, concerning the Treaty reporting procedure in 2007. This procedure, referred to as the Body Strengthening Process, to which I will refer later. list of issues prior to reporting (or LOIPR), consists of a list of issues transmitted to States parties prior to their submission I intend to cover several issues in my presentation today. of a report. The replies to the LOIPR become the States par- First, I will inform you about new developments since last year ties’ periodic report. This new procedure, also adopted by the concerning the Committee’s work, including critical issues aris- Human Rights Committee in October 2009 and the Committee ing under the Committee’s individual complaints mechanism. on Migrant Workers in 2010, provides numerous benefits: (i) Second, I will report on how the Committee is effectively it simplifies the process as State parties now need only submit addressing its increased workload by utilizing the additional one report rather than two as previously required when States resources and meeting time provided by this General Assembly had to submit replies to list of issues in addition to the periodic under Resolution 65/204. Third, I will touch upon the initiative report; (ii) it assists States parties in preparing timely and more of the High Commissioner for Human Rights to strengthen the focused reports; (iii) it enriches the dialogue; and (iv) it results treaty body system. Finally, I will refer to serious challenges in more specific recommendations. Moreover, through the currently facing the Committee. Committee’s advance identification of key issues of concern, With regard to all of the Committee’s activities over the past including recommendations of other UN human rights mecha- year, you have before you for your consultation the Committee’s nisms when appropriate, the LOIPR procedure has the broader annual report (A/66/44) as of June 2011. potential of strengthening coherence and follow-up to treaty bodies’ recommendations. I am pleased to report that States par- Chairperson, Distinguished Delegates, ties have reacted favourably to this new procedure. To date, the As you are aware, the Committee is mandated under the Committee has completed a first cycle of four years and trans- Convention against Torture to consider States parties’ reports mitted 75 LOIPRs to States parties with reports due in 2009, (article 19), to examine individual complaints (article 22), to 2010, 2011 and 2012. With the assistance of the Secretariat, undertake confidential inquiries (article 20), and to conduct the Committee will evaluate and improve this procedure going other activities, including the adoption of General Comments, to forward, taking into account the suggestions of States parties and facilitate and ensure full realization of the Convention. civil society organizations. The examination of initial and periodic reports under article Concerning reports, I would like to bring to your attention 19 through dialogue with States parties constitutes a core activity that the treaty body system as a whole is facing serious difficul- of the Committee. The Committee continues to have serious ties, especially with regard to the inadequate capacity of UN concerns about reporting delays. The Committee welcomes Conference Services to process and translate documents in a the submission of new initial reports during the past year by timely fashion as well as the insufficient human resources within

32 Informe de Claudio Grossman, Presidente del Comité Contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes, ante el 66º Período de Sesiones de la Asamblea General

Presidente, Distinguidas delegadas y delegados, colegas y una actividad central del Comité. El Comité sigue seriamente amigos, preocupado por el elevado número de informes atrasados. El Comité acoge con satisfacción la presentación de nuevos informes Me honra dirigirme a esta Asamblea General, por tercera vez, iniciales durante el año pasado por Madagascar y Yibuti, los que en mi calidad de Presidente del Comité contra la Tortura. Me com- serán considerados como un asunto prioritario en la próxima ses- place estar en compañía de mi colega Malcolm Evans, Presidente ión que inicia el 31 de octubre. El Comité lamenta profundamente del Subcomité para la Prevención de la Tortura, así como con el sin embargo que sólo dos Estados hayan presentado informes ini- Relator Especial sobre la Tortura, Juan Méndez. Nuestra pres- ciales durante el año pasado y que 30 Estados parte aún no hayan encia conjunta hoy aquí resalta la cooperación existente entre presentado sus informes iniciales, muchos de los cuales llevan la Comisión, el Subcomité y los procedimientos especiales del más de una década de retraso. El Comité hace un llamado a estos Consejo de Derechos Humanos y contribuye a mejorar la com- Estados parte para que presenten pronto sus informes iniciales prensión de nuestro trabajo colectivo y su complementariedad y para que así podamos entablar un diálogo que contribuya a la refuerzo mutuo. realización de los objetivos enunciados en la Convención. Para cada uno de nosotros esta ocasión es una oportunidad El Comité también está muy preocupado de que a lo menos esencial para entablar un diálogo con ustedes, los Estados miem- 65 Estados parte actualmente tengan informes periódicos atrasa- bros de las Naciones Unidas, que aprobaron la Convención contra dos, impidiendo con ello las funciones de supervisión del Comité la Tortura de 1984. Esperamos escuchar sus opiniones sobre que ustedes establecieron para garantizar el cumplimiento de cómo podemos lograr la plena realización de los objetivos de la la Convención. Todos sabemos que el derecho debe tomarse Convención, que hoy cuenta con 149 Estados parte. El diálogo de con seriedad, y que las obligaciones de la Convención han sido hoy complementa y continúa las reuniones anuales en Ginebra voluntariamente asumidas por los Estados parte. Estos informes que el Comité lleva a cabo con los Estados parte, así como la periódicos deben presentarse al Comité sin demora. consulta técnica de Estados celebrada en Sion, Suiza, el 12 y 13 de mayo de 2011 en relación al Proceso de Fortalecimiento de los En un esfuerzo por ayudar a los Estados parte a cumplir Órganos de Tratados, al que me referiré más adelante. con sus obligaciones de la Convención, el Comité introdujo un procedimiento de información opcional en el 2007. Este pro- Tengo la intención de cubrir varios temas en mi presentación cedimiento, conocido como la Lista de Cuestiones Previas al de hoy. En primer lugar, informaré sobre nuevos acontecimientos Informe (o LOIPR, por sus siglas en inglés), consiste en una desde el año pasado respecto a la labor del Comité, incluyendo lista de temas que se transmiten a los Estados parte previo a su aspectos críticos relativos al mecanismo de denuncias individuales. presentación de un informe. Las respuestas a las LOIPR pasan a En segundo lugar, explicaré cómo el Comité ha abordado eficaz- ser parte del informe periódico de los Estados parte. Este nuevo mente el aumento en el volumen de trabajo utilizando los recursos procedimiento, que fue adoptado también por el Comité de y tiempo de reunión adicionales proporcionados por esta Asamblea Derechos Humanos en octubre del 2009 y el Comité sobre los General en su resolución 65/204. En tercer lugar, tocaré el tema Trabajadores Migrantes en el 2010, proporciona numerosas ven- de la iniciativa del Alto Comisionado para los Derechos Humanos tajas: (i) simplifica el proceso, pues, ahora los Estados parte sólo para fortalecer el Sistema de Órganos de Tratados. Por último, me necesitan presentar un informe en lugar de dos, como se requería referiré a los graves desafíos que actualmente enfrenta el Comité. con anterioridad cuando los Estados debían presentar respuestas a Con respecto a todas las actividades del Comité durante el año una lista de preguntas además del informe periódico; (ii) ayuda a pasado, tienen ante ustedes para su consulta el informe anual de los Estados parte a preparar informes más centrados y oportunos; Comité (A/66/44) de junio del 2011. (iii) enriquece el diálogo; y (iv) resulta en recomendaciones más específicas. Además, ya que el Comité identifica cuestiones clave Presidente, distinguidos delegados, de interés, incluyendo las recomendaciones de otros mecanismos Como ustedes saben, el Comité tiene el mandato conforme de derechos humanos de la ONU cuando corresponde, el proced- a la Convención contra la Tortura de examinar los informes de imiento LOIPR tiene el potencial adicional de fortalecimiento de los Estados parte (artículo 19), de examinar denuncias individu- la coherencia y seguimiento de las recomendaciones de todos los ales (artículo 22), llevar a cabo investigaciones confidenciales órganos de tratados. (artículo 20) y realizar otras actividades, incluida la adopción de Me complace informar que los Estados parte han reaccionado observaciones generales, para facilitar y garantizar la plena real- favorablemente a este nuevo procedimiento. A la fecha, el Comité ización de los objetivos de la Convención. ha completado un primer ciclo de cuatro años y transmitido 75 El examen de los informes iniciales y periódicos en virtud del LOIPRs a los Estados parte cuyos informes estaban programados artículo 19 a través del diálogo con los Estados parte constituye para el 2009, 2010, 2011 y 2012. Con la asistencia de la Secretaría,

33 the Secretariat in the Office of the High Commissioner for situations where there are well-founded indications that torture Human Rights (OHCHR). I encourage member States to reflect is being systematically practiced in the mentioned State party. In on the implications for the treaty body system in the absence of this context, I would appeal to the nine States that have declared the allocation of significant additional resources. that they do not recognize the competence of the Committee provided for by article 20 of the Convention to withdraw their Contrary to the mandatory State reporting mechanism under reservation. article 19, State party acceptance of the individual complaints procedure under article 22 of the Convention is optional. The The fourth measure taken by the Committee on account Committee regrets that, thus far, only 65 of the 149 States parties of the additional resources and meeting time provided by this have made the necessary declaration accepting the Committee’s General Assembly was to accelerate its work on the General competence in this regard, and it calls upon the remaining 84 Comments initiated during the Committee’s 44th session in States parties to declare their acceptance. The individual com- May 2010. The Committee had adopted a first draft, which was plaints procedure is an important tool for achieving the goals of posted on the Committee’s website for comments after the May the Convention by enabling victims of torture to present their 2011 session. Many comments were received. The Committee cases before the international community. It also allows the will soon prepare a second draft at the upcoming session and Committee to apply the Convention to real-life situations, thereby aims to adopt the final text at the following session in May assisting State parties in fulfilling their obligations. Since last 2012. This draft General Comment explains and clarifies the year, the Committee has considered the merits of 17 cases. obligations of States parties under article 14 of the Convention to “ensure in its legal system that the victim of an act of torture In addition to widespread ratification, another critical issue obtains redress and has an enforceable right to fair and adequate for the individual complaints mechanism is the need for full compensation, including the means for as full rehabilitation as compliance with Article 14 obligations to provide remedies to possible.” The substantive obligations of redress include five victims of torture and other cruel, inhuman or degrading treat- forms of reparation: restitution, compensation, rehabilitation, ment or punishment. Under the Convention, States parties must satisfaction and guarantees of non-repetition. The draft also ensure that such victims obtain redress. refers to the procedural obligations, the implementation of the I will now turn to how the Committee is addressing the right to redress through legislation, effective mechanisms for increased workload by utilizing the additional resources and complaints and investigations, and access to mechanisms for meeting time provided by this General Assembly. obtaining redress. It also enumerates possible obstacles to the right to redress and indicates what States parties should include The first measure taken by the Committee was to increase in their reports to the Committee for the monitoring of this right. the number of reports it examines at each session, from six to nine for the November session and to eight for the May session. The Committee has also been discussing a document regard- This will reduce greatly the backlog of reports pending before ing facts and evidence, designed to address important issues the Committee and ensure that reports are examined with mini- such as the weight that should be accorded to domestic deter- mum delay primarily attributable to translation into the working minations and the proper standard of proof. It also discusses languages, another process which depends on the allocation of the standard of reasonableness, state control or acquiescence, resources. This increase in the number of reports examined at the exhaustion of domestic remedies, the introduction of new each session, in conjunction with the optional reporting proce- evidence, and due process guarantees. dure that the Committee continues to develop, will improve the I want to emphasize the importance of General Comments effectiveness and efficiency of examining reports. with regard to the Convention. They are prepared to promote and Second, the Committee increased the number of individual facilitate implementation of the provisions of the Convention complaints reviewed at each session. In the last session, the and to assist States parties in understanding and fulfilling their Committee decided 12 individual cases on the merits as compared obligations. to 5 at its previous session. Here, too, however, the Committee Chairperson, Distinguished Delegates, must rely on a Secretariat which lacks the resources required to significantly increase the number of cases ready for the Now let me turn briefly to the consultation process launched Committee’s consideration. The problems caused by the lack of by the High Commissioner for Human Rights to strengthen the resources are compounded by the growing number of complaints treaty body system, an initiative which the Committee fully sup- submitted to the Committee. At this time last year, 101 petitions ports and in which it has had the opportunity to participate and were pending before the Committee. Currently, there are 106 make proposals. despite the twofold increase in the number of cases examined by The growth of the treaty body system, which has doubled the Committee at the last session. The Committee’s increasing in size in recent years, has not been matched with equivalent workload reflects the positive development that individuals deem resources. Although treaty bodies are continuously working to it important to seek justice through the Committee’s complaint ensure that their working methods are efficient and effective, procedure. States parties should play a leading role in finding such as the Committee’s new LOIPR reporting procedure that permanent solutions to these resource and workload issues so as to assists States parties with their reporting obligations and achieves ensure full realization of the objectives of the Convention. better outcomes under the consideration of States reports, there Third, the Committee dedicated more time to its impor- is further room for improvement. However, measures that lead tant article 20 confidential procedure. When information is to increased efficiency do not necessarily reduce costs: making submitted under this procedure to the Committee, it examines our work more implementable at the national level requires more 34 el Comité está evaluando este procedimiento, tomando en cuenta las de recursos se ven agravados por el creciente número de denuncias sugerencias de los Estados parte y organizaciones de la sociedad civil. planteadas ante el Comité. Por estas fechas el año pasado, había 101 peticiones pendientes ante el Comité. Actualmente existen En cuanto a informes, me gustaría llamar la atención de todos 106, a pesar del aumento al doble del número de casos examinados ustedes en cuanto a las graves dificultades que enfrenta el sistema por el Comité en la última sesión. La creciente carga de trabajo del de órganos de tratados en su conjunto, especialmente con respecto Comité es positiva en cuanto demuestra un incremento de perso- a la capacidad insuficiente de los Servicios de Conferencias de las nas que consideran que es importante buscar justicia a través del Naciones Unidas para procesar y traducir documentos de manera procedimiento de denuncia del Comité. Los Estados parte deberían oportuna, así como los insuficientes recursos humanos en la desempeñar un papel en la búsqueda de soluciones permanentes a Secretaría de la Oficina del Alto Comisionado para los Derechos los problemas de falta recursos y mayor carga de trabajo para ase- Humanos (ACNUDH). Insto a los Estados miembros a reflex- gurar el pleno alcance de los objetivos de la Convención. ionar sobre las consecuencias de esta insuficiencia en el Sistema de Órganos de tratados . En tercer lugar, el Comité dedicó más tiempo al importante procedimiento confidencial del artículo 20. Cuando se presenta A diferencia del mecanismo obligatorio de informes por los información conforme a este procedimiento, el Comité examina Estados parte conforme al artículo 19, la aceptación de los Estado situaciones donde existan indicios fundados de que se está com- parte del procedimiento de denuncias individuales conforme al etiendo tortura sistemáticamente en el Estado parte en cuestión. artículo 22 de la Convención es opcional. El Comité lamenta En este contexto, hago un llamado a los nueve Estados que han que, hasta ahora, sólo 65 de los 149 Estados parte han formulado declarado que no reconocen la competencia del Comité prevista la declaración necesaria para aceptar la competencia del Comité en el artículo 20 de la Convención para que retiren sus reservas. en este respecto, y exhorta a los restantes 84 Estados parte a que declaren su aceptación. El procedimiento de denuncias individu- La cuarta medida adoptada por el Comité, en vista de los ales es una herramienta valiosa para alcanzar los objetivos de la recursos y tiempo adicionales proporcionados por esta Asamblea Convención al permitir a las víctimas de torturas o tratamientos General, fue acelerar su labor en el proyecto de Observación inhumanos presentar sus casos ante la comunidad internacio- General iniciado durante la 44 Sesión del Comité, en mayo de nal. También permite a la Comisión aplicar la Convención a 2010. El Comité aprobó un primer texto del proyecto, el que fue situaciones específicas, lo que ayuda a los Estados parte en publicado en el sitio Web del Comité para recibir comentarios el cumplimiento de sus obligaciones. Desde el año pasado, el luego del período de sesiones de mayo de 2011. Se han recibido Comité ha hecho un examen de fondo de 17 casos. numerosos comentarios. El Comité preparará un segundo texto del proyecto en el próximo período de sesiones y tiene como Además de ratificación generalizada, otro tema crítico para el objetivo aprobar el texto definitivo en el siguiente período de mecanismo de denuncias individuales es la necesidad del pleno sesiones en mayo de 2012. Este proyecto de Observaciones cumplimiento de las obligaciones del artículo 14 de proporcio- Generales explica y aclara las obligaciones de los Estados parte nar reparaciones a las víctimas de tortura y otros tratos o penas en virtud del artículo 14 de la Convención para asegurar que “su crueles, inhumanos o degradantes. Conforme a la Convención, legislación garantice a la víctima de un acto de tortura la repara- los Estados parte deben asegurar que las víctimas obtengan plena ción y el derecho a una indemnización justa y adecuada, incluidos reparación por las violaciones infligidas. los medios para su rehabilitación lo más completa posible”. Las Ahora me referiré a cómo el Comité está utilizando los recursos obligaciones sustantivas de reparación incluyen cinco formas de adicionales proporcionados por esta Asamblea General el año pasado. reparación: restitución, indemnización, rehabilitación, satisfac- ción y garantías de no repetición. El texto del proyecto también La primera medida adoptada por el Comité fue aumentar el se refiere a las obligaciones procesales, la implementación del número de informes que examina en cada período de sesiones de derecho a la reparación por vía legislativa, mecanismos eficaces seis a nueve para el período de sesiones de noviembre y a ocho de denuncia e investigación y acceso a mecanismos para obtener para el período de sesiones de mayo. Esto reducirá significativa- reparaciones. También enumera posibles obstáculos al derecho a mente el número de informes pendientes ante el Comité y asegu- la reparación e indica lo que los Estados parte deben incluir en sus rará que los informes sean examinados con un retraso mínimo, informes al Comité para el cumplimiento pleno de este derecho. atribuible principalmente a la traducción a los idiomas de trabajo, que es otro proceso que depende de la asignación de recursos. El Comité también ha estado discutiendo un documento con Este aumento en el número de informes examinados en cada respecto a los hechos y las pruebas, diseñado para resolver cues- período de sesiones, junto con el procedimiento de información tiones importantes tales como el peso que debe darse a decisiones opcional que el Comité continúa desarrollando, mejorará la efica- internas y criterios adecuados de prueba. También analiza el cia y eficiencia del examen de los informes. estándar de razonabilidad, control estatal o aquiescencia, el agota- miento de los recursos internos, la introducción de nuevas pruebas En segundo lugar, el Comité incrementó el número de denun- y las garantías al debido proceso. cias individuales atendidas en cada período de sesiones. En el último período de sesiones el Comité emitió 12 decisiones de fondo Quiero hacer hincapié en la importancia de las Observaciones en casos individuales, en comparación con las 5 del período de Generales con respecto a la Convención. Son preparadas para pro- sesiones anterior. Aquí también, sin embargo, el Comité depende mover y facilitar la aplicación de las disposiciones de la Convención de una Secretaría que carece de los recursos necesarios para y para ayudar a los Estados parte a comprender y cumplir con sus aumentar significativamente el número de casos preparados para obligaciones. ser examinados por el Comité. Los problemas causados por la falta Presidente, distinguidos delegados,

35 investment, more means of cooperation with States and more to States where there are substantial grounds for believing that time. During the consultations aimed at strengthening the treaty they are in danger of being subjected to torture; and “rendition” body system, there has been great support to rationalize and of suspects to countries that continue to use torture as a means of focus the reporting obligation of States parties. For that matter, investigation and interrogation. Deplorable conditions of deten- the new reporting procedure pioneered by the Committee has tion are still the general rule. Forced disappearances continue been positively received by the States parties. The use of mod- to deny persons their basic legal safeguards, and rehabilitation ern technologies was considered including video conferencing or redress is rarely provided to victims of torture or their fami- to reach broader audiences and enhance the possibilities to lies. These failures to realize the obligations laid down in the promote the values of the Convention to the general public. Convention should strengthen our resolve. Achieving the goals Other avenues discussed to improve the system included strict of the Convention is doable. Let us recommit ourselves to the page limitations on documents adopted by Committees as well full realization of those goals. as those submitted by States parties, better time management Distinguished delegates, colleagues and friends: Sometimes during the dialogue, and more focused recommendations which we talk in abstract terms about torture. Statistics and normative would, in turn, enhance the reporting procedure and cooperation challenges dominate the discussion on numerous occasions. between treaty bodies and States parties. It would be useful to Often we lose the human dimension by resorting to language that continue this discussion in the present forum, as the members fails to fully capture the absolute horror of torture. We should States have an obligation to provide adequate resources for the not, however, lose sight of the fact that we are dealing with system they created to perform effectively. I look forward to women, men and children. The system that you have created, continuing our interaction with the High Commissioner and all through the Convention against Torture, recognizes that crucial stakeholders in this process, including member States. dimension. The Committee’s work reflects this foundation. Distinguished Delegates, Colleagues and Friends Allow me to share with you a recent case before the Thanks to the work of the international community, the Committee. In that case, the complainant claimed that she unequivocal and absolute prohibition of torture and cruel, would be imprisoned and tortured if returned to her country, in inhuman or degrading treatment or punishment is set forth in violation of article 3 of the Convention. Among other things, she numerous international and regional instruments including the had been arrested and, while in detention, subjected to torture, Universal Declaration of Human Rights and specifically in the beatings and multiple rapes due to her religious and political Convention against Torture, for which the supervisory organ, the activities. The Committee noted the claims and evidence submit- Committee against Torture, was created. This framework affirms ted by the complainant and the arguments of the State party, as that there is no legal vacuum that would allow questioning the well as the recent reports by seven United Nations experts and prohibition. These developments have been essential to advance, by the United Nations High Commissioner for Human Rights with legal legitimacy, the values of human dignity embodied in on the human rights situation in the country concerned. In the those treaties and conventions. Over the years the Committee light of the information before it, the Committee found that it has achieved important successes such as the transformation was impossible to identify particular areas of the country which of countries’ legal norms including the incorporation of the could be considered safe for the complainant and concluded that definition of torture, investigating and punishing perpetrators there were substantial grounds for believing that the complain- of torture, and excluding confessions extracted through torture ant was at risk of being subjected to torture if returned to her from legal proceedings. These developments show the powerful country. The State party against whom the complaint was filed impact of the Convention. fully complied with the decision, giving a person the chance at a new life. Despite these important developments, we cannot affirm that torture has decreased. As I mentioned in my first report to In 1984, with the adoption of the Convention against Torture, the General Assembly, the Committee’s work over the last two you created a system that made this possible. You have contrib- decades shows that we continue to witness failures to imple- uted to the realization of its goals by saving numerous lives. ment the Convention’s provisions and the Committee’s recom- It is our shared legal duty to now achieve the full realization mendations; refusals to adopt a clear definition of torture, to of the Convention. On behalf of the Committee against Torture, criminalize torture and establish adequate penalties; failures to I thank you for your attention. investigate alleged cases of torture; impunity for perpetrators of acts of torture; expulsion, return and extradition of persons New York, 18 October 2011

36 Ahora permítanme hablar brevemente sobre el proceso de la Asamblea General, la labor del Comité durante las últimas consultas iniciado por la Alta Comisionada para los Derechos dos décadas demuestra que seguimos presenciando la falta de Humanos para fortalecer el Sistema de Órganos de Tratados, una aplicación plena de las disposiciones de la Convención y las iniciativa que el Comité apoya plenamente y en la que ha tenido recomendaciones del Comité; el rechazo a adoptar una clara la oportunidad de participar y hacer propuestas. definición de tortura para tipificar como delito la tortura y esta- blecer sanciones adecuadas; la no investigación de presuntos El crecimiento del Sistema de Órganos de Tratados, que se ha casos de tortura; impunidad de los autores de actos de tortura; duplicado en tamaño en los últimos años, no ha coincidido con un expulsión, devolución y extradición de personas a Estados incremento de recursos equivalente. Aunque los órganos de tratados donde hay razones fundadas para creer que están en peligro de trabajan continuamente para asegurar que sus métodos de trabajo ser víctimas de tortura; y entrega ilegal de sospechosos a países sean eficientes y eficaces, tales como los nuevos informes LOIPR que continúan el uso de la tortura como medio de investigación del Comité que ayudan a los Estados parte con sus obligaciones de e interrogación. Condiciones de detención deplorables siguen presentar informes y lograr mejores resultados en el examen de los siendo la norma general. Desapariciones forzadas niegan a las informes presentados por los Estados, todavía hay más espacio para personas garantías jurídicas básicas, y rara vez se proporciona mejorar. Sin embargo, no necesariamente la incorporación de medi- una rehabilitación o reparación rara a las víctimas de tortura das que conducen al aumento de la eficiencia reducen los costos: o sus familiares. Estos fracasos en cumplir las obligaciones incrementar la ejecución de nuestro trabajo a nivel nacional requiere establecidas en la Convención deben fortalecer nuestra deter- más inversión, más medios de cooperación con los Estados y más minación. Es posible alcanzar los objetivos de la Convención. tiempo. Durante las consultas encaminadas a fortalecer el Sistema Comprometámonos a la plena realización de sus objetivos. de Órganos de Tratados, ha habido gran apoyo para pensar en cómo centrar la obligación de informar de los Estados parte. Por eso, el Distinguidas delegadas y delegados, colegas y amigos: a veces nuevo procedimiento de informes aplicado por el Comité ha sido hablamos en términos abstractos sobre la tortura. Las estadísticas y recibido positivamente por los Estados parte. Se ha considerado los desafíos normativos dominan el debate en numerosas ocasiones. el uso de tecnologías modernas, incluyendo las videoconferencias, Muchas veces perdemos la dimensión humana por recurrir a un len- para llegar a una audiencia más amplia e incrementar las oportuni- guaje que no logra asir plenamente el horror absoluto de la tortura. dades de promover los valores de la Convención ante el público en Sin embargo, no debemos perder de vista el hecho de que estamos general. Otras vías discutidas para mejorar el Sistema incluyen el tratando con hombres, mujeres y niños. El sistema que ustedes han establecimiento de estrictas limitaciones al número de páginas de creado, a través de la Convención contra la Tortura, reconoce esa documentos adoptados por los Comités y de los presentados por dimensión crucial. La labor del Comité refleja este fundamento. los Estados parte, mejor manejo del tiempo durante el diálogo Permítanme compartir con ustedes un caso reciente ante el y recomendaciones más específicas que, a su vez, mejorarían el Comité. En dicho caso, la peticionaria alegó que sería encarce- procedimiento de presentación de informes y cooperación entre los lada y torturada si se le enviaba de vuelta a su país, en violación Organos de Tratados y los Estados parte. Sería útil continuar este del artículo 3 de la Convención. Entre otras cosas, ella había sido debate en el presente foro, pues los Estados miembros tienen la detenida y, durante la detención, sometida a torturas, palizas y vio- obligación de proporcionar recursos adecuados para que el sistema laciones múltiples debido a sus actividades políticas y religiosas. La que crearon funcione eficazmente. Espero continuar nuestra inter- Comisión tomó nota de los alegatos y pruebas presentadas por la acción con la Alta Comisionada y todas las partes interesadas en denunciante y de los argumentos del Estado parte, así como de los este proceso, incluidos los Estados miembros. informes recientes de siete expertos de las Naciones Unidas y de la Distinguidos delegados, colegas y amigos Alta Comisionada de Naciones Unidas para los Derechos Humanos sobre la situación de los derechos humanos en el país en cuestión. Gracias a la labor de la comunidad internacional, la clara y En vista de la información presentada, el Comité concluyó que era absoluta prohibición de la tortura y otros tratos o penas crueles, imposible identificar determinadas zonas del país que podrían ser inhumanos o degradantes ha quedado establecida en numero- consideradas seguras para la denunciante y concluyó que había sos instrumentos internacionales y regionales, incluyendo la fundadas razones para creer que la denunciante corría riesgo de ser Declaración Universal de Derechos Humanos y, específica- sometida a torturas si era devuelta a su país. El Estado parte contra mente, en la Convención contra la Tortura, para la que se creó un el que se presentó la denuncia cumplió totalmente con la decisión, órgano de supervisión, el Comité contra la Tortura. Este marco dándole a esta persona la oportunidad de una nueva vida. asegura que no exista un vacío legal que permita cuestionar la prohibición. Este desarrollo ha sido esencial para avanzar, con En 1984, con la adopción de la Convención contra la Tortura, legitimidad jurídica, los valores de la dignidad humana consa- ustedes crearon un sistema que hicieron esto posible. Así, ustedes han grados en los tratados y convenciones. El Comité ha logrado contribuido a la realización de sus objetivos salvando muchas vidas. éxitos importantes en distintas oportunidades tales como la Es nuestro deber jurídico compartido lograr ahora la plena transformación de normas jurídicas internas, incluyendo la realización de la Convención. incorporación de la definición de tortura, investigación y castigo de autores de tortura y la exclusión de procesos judiciales de En nombre del Comité contra la Tortura, les agradezco su confesiones obtenidas mediante el uso de la tortura. Estos acon- atención. tecimientos demuestran el impacto de la Convención. Nueva York, 18 de octubre de 2011 A pesar de estos avances, no podemos afirmar que la tortura ha disminuido. Como mencioné en mi primer informe a

37 International Legal Updates

North America & the Caribbean (IASC) Operational Guidelines on the prosecution of perpetrators. The organi- Protection of Persons in Situations of zation continues to push for the passage The Situation of Women and Girls Natural Disasters. Though there is not yet of anti-violence legislation that penalizes in Haiti Exemplifies the Difficulties data available on the number of sexual assailants, as well as public safety officials of Post-Natural Disaster assaults post-earthquake, HRW predicts who do not enforce the law. the numbers have increased due to new Protection of Human Rights Despite the advancements, Haiti’s vulnerabilities. Other human rights orga- Almost two years after a catastrophic preventative and responsive efforts are nizations have found potential correla- earthquake devastated Haiti, killing more falling short and the government is not tions between levels of hunger, survival than 220,000 people and leaving more than fulfilling its obligations. The 2011 revi- or transactional sex, and an increased risk a million people displaced, over 600,000 sion of the IASC Operational Guidelines for gender-based violence. The recovery people still remain in makeshift tent provides that, “often, negative impacts on efforts are failing to protect and provide cities, displaced within their own country. the human rights concerns after a natu- for women who are made more vulnerable Disasters such as this leave a population ral disaster do not arise from purposeful by life in the tent camps. vulnerable to disease and diminished per- policies but are the result of inadequate sonal security due to lack of infrastructure, Despite the earthquake, Haiti’s human planning and disaster preparedness, inap- rule of law, and effective public works. rights obligations remain the same. Haiti propriate policies and measures to respond While deprivation of human rights may is a party to several international human to the disasters, or simple neglect.” While unfortunately be inevitable in extreme rights treaties that create binding obliga- the political and economic realities facing natural disasters, prevention of human tions on the government to improve wom- Haiti may render the government unable rights abuses post-disaster is essential to en’s health, including maternal and repro- to protect human rights as it should, it is protecting especially vulnerable groups. ductive health, such as the International an important lesson that protecting human In Haiti, it was the existing inadequate Covenant on Civil and Political Rights, rights before a disaster is the best remedy human rights protections for women and Convention on the Rights of the Child, the to ensure them after one. girls that aggravated their vulnerability American Convention on Human Rights, to increased sexual assault, gender based and the Inter-American Convention on the New National Defense Authorization violence, and sex in exchange for basic Prevention, Punishment and Eradication Act Authorizes Indefinite Detention needs post-earthquake. The grim situation of Violence Against Women. Moreover, of U.S. Citizens faced by women and girls in Haiti indicates the ratification of these international that where human rights protections are not instruments demonstrates the State’s ack On October 26, 2001 President Bush sufficient, natural disasters only intensify nowledgement of its responsibility to exer- enacted the Patriot Act authorizing indefi- existing abuses. cise due diligence and undertake state nite detention of non-U.S. citizens, allowing actions to effectively address forms of dis- suspected terrorists to be detained without Before the earthquake, Haiti’s protec- crimination and violence against women. trial until the War on Terrorism ended. On tion of women and girls was troubling. January 11, 2002, the first group of twenty The Inter-American Commission on Human Where the Government made pre-earth- detainees arrived at Guantanamo Bay’s Rights reported, “forms of discrimination quake efforts to meet these obligations, Camp X-Ray, where they were housed against women have been a fixture in the it provided women some post-earthquake in open-air cages with concrete floors. history of Haiti, both in times of peace and protection. The Ministry of Women created Later that month, President Bush declared in times of unrest and violence.” Human a five-year plan to improve the lives of detainees’ status as unlawful enemy com- Rights Watch (HRW) reports that according women and girls throughout Haiti. The batants, which disqualified them from to the UN, between 2004 and 2006 up to Ministry partnered with women’s NGOs, prisoner-of-war protection under Article 50 percent of girls living in conflict zones and UN Agencies to create the Concernation Five of the Geneva conventions (though in Port-au-Prince were victims of wide- Nationale Contre Les Violence Faites Aux protections are still afforded under Article spread or systematic rape, sexual violence, Femmes (Concertation Nationale). While Three). Human rights advocates argue that or ‘gang’ rape. A survey of the area found the earthquake greatly affected these this system of indefinite detention cir- that an estimated 35,000 women and girls efforts, the Concertation Nationale cre- cumvents the rule of law, and fails to were sexually assaulted between February ated some effective plans and legislation prosecute terrorist suspects efficaciously, 2004 and December 2006. that aim to improve conditions for women. while wrongfully detaining hundreds. Yet The Concertation Nationale helped to pass “Experience has also shown that pre- on the eve of the ten-year anniversary of the 2005 decree making rape a crime and existing vulnerabilities and patterns of the first detainees arriving at Guantanamo establishing a policy that all victims of discrimination usually become exacerbated Bay, President Obama signed the indefi- sexual aggression can receive medical in situations of natural disaster,” states nite detention of alleged terrorists into law, certification of sexual violence in order The Inter-Agency Standing Committee’s despite his previously voiced reservations. to ensure that evidence is present for the

38 On December 31, 2011, President “enemy combatant” and are not entitled to as drug rehabilitation centers throughout Obama signed the National Defense legal representation. the country. Authorization Act (NDAA), or H.R. 1540, For the past ten years, the indefinite Despite the aims of these clinics, lesbian, for the 2012 fiscal year. Congress passes detention system created by the Patriot gay, bi-sexual, transgender, and inter-sex this act annually to monitor the budget for Act has created a tenuous human rights (LGBTI) individuals in Ecuador actually the Department of Defense, but this year situation for foreign nationals. The NDAA enjoy more profound de jure recognition the bill included highly controversial new now extends the danger of human rights of their rights than do their counterparts provisions that allow indefinite military violations to U.S. citizens, and in the pro- in other countries in Latin America. For detention of U.S. citizen terrorist suspects, cess violates their constitutional rights. example, Ecuador was the first country in and requires the detention of suspected The Fourth Amendment of the United the Americas, and the third in the world, to foreign enemies. The provisions also apply States Constitution grants citizens liberty include sexual orientation as a protected to any person who supports or aids “bel- from unreasonable seizures of their person, category in its Constitution in 1998. In ligerent” acts against the United States, while the Fifth Amendment guarantees 1997, the country’s Constitutional Tribunal whether the person is apprehended abroad that one cannot be deprived of life, liberty, overturned section one of Article 516 of or on domestic soil. or property, without due process of law. the Penal Code, which criminalized sexual U.S. citizens may now be joining the The Sixth amendment provides every U.S. activities between persons of the same 171 detainees who remain at Guantánamo citizen the right to a fair trial in front of a sex. Article 68 of the 2008 Constitution Bay, most of whom have never been jury with the assistance of counsel. The formally recognized same-sex civil unions charged with a crime and do not know NDAA provisions openly violate these under the law, and Article 11 reiterated when they will face trial, if at all. Many constitutional rights and perpetuate the the freedom of all peoples from discrim- of the detainees were subjected to forced use of the facilities at Guantanamo Bay, ination. Article 66 also guaranteed all disappearances in secret CIA custody prior now open to the U.S. citizens they pur- Ecuadorians the rights to physical, moral, to being brought to Guantánamo, as well ported to protect. President Obama issued and sexual integrity of person, as well as as to torture or other cruel, inhuman or a statement saying “I want to clarify that freedom of expression of sexual orienta- degrading treatment; held incommuni- my Administration will not authorize the tion. Finally, Article 212 of the Penal Code cado in solitary confinement for extended indefinite military detention without trial criminalizing hate speech, sanctions those periods. Exactly what “interrogation tech- of American citizens . . . doing so would who incite hate against any other person niques” have been used and what condi- break with our most important traditions for reason of their sex, sexual orienta- tions the detainees were subjected to in and values as a Nation.” Unfortunately, a tion, or sexual identification, among other CIA custody remains classified. presidential statement alone is not binding characteristics. on future administrations’ interpretation The Obama administration maintains However, the de facto situation of of the NDAA. What will be left when that the law is merely a codification of LGBTI rights and protections against the Obama Administration is gone is a existing standards and that U.S. citizens discrimination and even violence is com- law that authorizes human rights abuses are exempt. While U.S. citizens are in fact pletely contradictory to the law. These and constitutional violations in the country exempted from the mandatory detention “intense rehabilitation” clinics employed and worldwide. requirement of section 1032 of the new methods prohibited under the United law, section 1031 offers no exemption for Anna Naimark, a J.D. candidate at the Nations Convention against Torture and American citizens from the discretionary American University Washington College Other Cruel, Inhuman or Degrading authorization of the U.S. Government to of Law, covers North America for the Treatment or Punishment and the Inter- indefinitely detain them without charge Human Rights Brief. American Convention to Prevent and or trial. Though supporters and critics dis- Punish Torture. Ecuador is a state-party to agree on whether the new law is a positive both of these conventions, and to the United Latin America step, they agree that it will mean much Nations Convention on the Elimination of more than maintaining the status quo. All Forms of Discrimination against Women Instead, the law enshrines military authority Shutting Down Clinics that and the Inter-American Convention on the to detain and imprison civilians anywhere ‘Cure Homosexuality’ in Ecuador Prevention, Punishment, and Eradication in the world, without formal charges or In January 2012, three Ecuadorian of Violence against Women — conventions trial. The power to detain is so broad that non-governmental organizations posted whose principles are violated by abuses U.S. citizens may now be taken by the a petition on Change.org, asking the which were taking place at these clinics. military from any “battlefield.” In sup- Ecuadorian Ministry of Health to close Twenty-four year-old Paola Ziritti came port of the bill, Senator Lindsey Graham “ex-gay” clinics. The petition received forward after being held against her will explained that it will “basically say in law over 100,000 signatures, sending a strong in a clinic for two years, and reported that for the first time that the homeland is part message to the Ecuadorian government the clinic staff would routinely sexually of the battlefield” and that people can be from the international community. Until and physically assault her. She spent sev- imprisoned without charge or trial whether January, lesbians in Ecuador were being eral months handcuffed and was regularly American citizens or not. Senator Graham tortured and sexually abused in approxi- doused with urine and water. Other women elaborated that if a U.S. citizen is “thinking mately two hundred clinics that claimed have reported being raped or threatened about helping al-Qaeda,” then they are an they could “cure” people of their homosex- with rape, handcuffed, deprived of food uality. The clinics generally masqueraded 39 and water, and forced to dress like pros- require the return of land appropriated President Santos signed these regula- titutes, according to Tatiana Velasquez, a by armed groups to its rightful inhabit- tions on December 20, 2011. They were representative of Taller de Comunicación ants, and to financially compensate the 3.7 drafted in response to questions about Mujer, one of the organizations that peti- million internally-displaced persons (IDPs) how the reparations provisions would tioned the Ministry of Health to shut and other victims of violence since 1985. actually be enforced, and they establish down the clinics. Taller de Comunicación Santos’ government chose 1985 as the ear- more detailed assistance measures for the Mujer, along with Fundación Causana liest date to which people could cite claims victims. The three main components of and Artikulación Esporádika, have worked because of that year’s symbolic importance the regulations are restitution payments to with clinic victims since at least 2005. in the country’s history — on November 6, victims (up to US $11,900 each, over However, information about the situation 1985, members of the now-defunct M-19 the next ten years), administrative proce- of the LGBTI community in Ecuador is guerilla group stormed the Palace of Justice dures to enroll in the victims’ fund, and difficult to find, as homosexuality is still in Bogotá. The event ended in the death of safeguards for vulnerable populations to taboo in Ecuadorian society and is rarely eleven of the twenty-five Supreme Court prevent gross human rights violations in discussed. Despite efforts by the LGBTI Justices, all thirty-five participating M-19 the future. The amount of each restitution community to assert itself, as evidenced members, and nearly fifty army soldiers. payment will be determined partly by the most recently by the July 2011 pride severity of the violence suffered by the The Victims Law was generally parades in Quito and Guayaquil, the coun- victim during the civil war, but also by greeted with support and enthusiasm by try’s two largest cities, the relative strength the types of positive steps the victim or the Colombian and international com- of the Catholic Church, as well as the the victim’s family has taken since then to munities, as evidenced by UN Secretary machismo which permeates the culture, rebuild his or her life. For example, higher General Ban Ki-moon’s presence at the may be barriers to successfully lobbying payments will be given to those who have signing ceremony. In accordance with the for the closure of these clinics. During the already invested in their education or that Basic Principles, the Victims Law strictly 2008 constitutional referendum, conserva- of their children, or who promise to do so defines victims as unarmed civilians who tive Catholic clergy and evangelical church in the future. This provision is in keeping suffered violations of international human leaders allied themselves with the “No” with the Basic Principles as well. rights and humanitarian law during the vote in protest over the legalization of armed conflict. If the victim is deceased, A special office has been created same-sex civil unions. Furthermore, apart immediate family members may make a to assist IDPs in establishing their land from the religious belief that homosexual- claim on behalf of the victim. No armed claims. Civil society organizations in ity is a moral wrong, many people believe combatants can apply to the victims’ fund Colombia have reported that citizens were that homosexuality is also a curable dis- for compensation, except for former child not only forced to flee because of the ease, as evidenced by the prevalence of soldiers. The law also outlines the general violence, but were also forcibly evicted these torture clinics. principles that will guide the restitution from their land in many cases. This land Regardless of outside influences and process, including dignity, equality, good was then cultivated to finance the armed prevailing societal beliefs about homo- faith, and due process. Article 28 of the conflict. President Santos hopes to return sexuality in Ecuador, the Ecuadorian law details a list of victims’ rights during over five million acres of land to displaced Government has a legal obligation to the restitution process, including, among persons in the next few years. Concerns continue to close these clinics. Whether others, the right to truth and justice, family remain, however, about the possibility of Ecuadorian or international bodies take reunification, and lives free of violence. renewed violence against victims returning action, the practices these clinics employed The Victims Law also complies with the to their land — since Santos took office are illegal and a violation of the rights of Basic Principles by describing the process in August 2010, over twenty leaders of the women who were trapped in them. victims must go through in order to make farmers attempting to reclaim stolen land their restitution claims, and the social have been murdered and only six people services available to victims during and have been arrested in these killings to Colombia Takes a Step toward after this process. The Basic Principles date. Despite explicit warnings by the Justice with its Victims Law provide for access to justice and repara- Colombian government that such violent Colombia is continuing its work toward tions for harm suffered. In recognition of acts will no longer be tolerated, no changes lasting peace by addressing the needs the fact that giving detailed accounts of have been made to the penal code and the of the victims of the country’s decades- the violence victims experienced would be Victims Law does not directly address this long armed conflict. On June 10, 2011, emotionally taxing, the Colombian govern- new violence. Therefore, only time will tell President Juan Manuel Santos signed ment will provide counseling services for if the Victims Law can truly provide the the Victims and Land Restitution Law those who file restitution claims. Special justice it promises. (Victims Law), which complies with the consideration is given to IDPs and vulner- Christina Fetterhoff, a J.D. candidate United Nations’ Basic Principles and able populations like the indigenous and at the American University Washington Guidelines on the Right to a Remedy and Afro-Colombians, as well as human rights College of Law, covers Latin America for Reparation for Victims of Gross Violations defenders and union organizers. Finally, the Human Rights Brief. of International Human Rights Law the law includes specific measures for land and Serious Violations of International resettlement, which are presented in more Humanitarian Law (Basic Principles) of detail in the corresponding regulations. 2005. The goal of the Victims Law is to

40 Middle East and North Africa either orally, in writing or in print, in the motivated” crimes against the people of form of art, or through any other media of Yemen. This statement of immunity formed Page Not Found: The Tunisian his choice.” (emphasis added). According the substantive part of a Gulf Cooperation Internet Agency’s Appeal to to General Comment 34, which describes Council (GCC) brokered deal between Eliminate Censorship the UN Human Rights Committee’s inter- Saleh and the new Yemeni parliament. pretation of Article 19, parties to the The International Covenant for Civil and On August 15, 2011, a Tunisian appellate ICCPR must protect Internet-based forums Political Rights (ICCPR) requires signatory court upheld a May 2011 order requiring and “take all necessary steps to foster the states to ensure that victims of violations of the Tunisian Internet Agency (ATI) to censor independence of these new media and to the ICCPR, such as those allegedly com- Internet access for all Tunisians. The ATI ensure access of individuals thereto.” mitted by Saleh during the recent Yemeni intends to appeal the decision to the Tunisian revolutions, have access to an effective Court of Cassation, the country’s highest The planned censorship list put forth remedy. The parliament’s decision to neu- court. Under new leadership after the by the Tunisian court contravenes both the tralize Yemeni citizens’ ability to prosecute January 2011 revolution, the ATI opened letter of the treaty and its interpretation President Saleh in exchange for his voluntary Tunisia up to the Internet fully for the by the Committee. General Comment 34 abdication of power represents a violation of first time in the country’s history. The reads Article 19 to include all information Yemen’s obligations to provide an effective ATI is using the resources at its disposal including “political discourse, commen- remedy for violations of the ICCPR. to advocate for freedom of expression via tary on one’s own or public affairs,” even the Internet and against Internet censor- if it is “deeply offensive.” The military As part of the January agreement, Saleh ship. The Agency encountered resistance is a legitimate arm of the government ended his career as President and trans- on two fronts: from the Tunisian courts, and often a political force itself, and the ferred power to Vice President Abd-Rabbu which ordered the ATI to block all porno- order to censor anti-military statements Hadi. Hadi went on to run unopposed in graphic material, and from the Tunisian on Facebook seems to fall squarely within the February 2012 election, winning 99% military, which ordered the agency to cen- the definition of permissible political of a vote in which barely 64% of the citi- sor certain politically objectionable sites discourse under Article 19. Additionally, zenry participated. The new immunity law and Facebook pages. If the ATI loses its the censorship of pornographic materials protects Saleh and his aides from prosecu- pending appeal, the agency will, pursuant may contravene the prohibition against tion for their role in widespread violence to judicial order, block a classified list of censoring even “deeply offensive” material, against civilians peacefully protesting the websites deemed morally objectionable although in practice more conservative inter- government since February 2011, resulting that the government can update at will. pretations may find certain pornography in the death of around 2,000 civilians and The creation and enforcement of such a to be a form of gender discrimination and military defectors. Protesters calling for censorship list would violate Article 19 of therefore subject to restriction to prevent constitutional and governmental reform the International Covenant on Civil and public morals. Even under such a reading, suffered from armed attacks, arbitrary Political Rights (ICCPR). Judicial censor- the General Comment makes clear that arrests, torture, and forced disappearances. ship of the Internet in Tunisia combined removing all individual choice and giving the The immunity also extends to public pros- with the political agenda advanced by the government total control over the regulation ecution of crimes committed by Saleh and military would together represent a de of pornography would constitute “unfettered his aides over the course of his 33-year facto state of censorship not much differ- discretion” in violation of Article 19. rule, including the government’s contro- ent from the one present under the regime versial use of artillery against the Huthis The classified list of censored materials of ousted former President Ben Ali. in Northern Yemen during the period of proposed under the court order is a trou- unrest Yemen experienced between 2004 Under the Ben Ali regime, the ATI bling and immeasurable step backwards and 2010. While lauded as an efficient blocked culturally and politically objec- for the free society that the new govern- way to put a prompt end to the bloodshed, tionable content using censorship software ment endeavors to build. Tunisia experi- the immunity deal garnered widespread installed at the Internet’s point-of-entry enced its first free election on October Western and GCC support due to concerns into the country. The newly elected legis- 23, 2011, and the inability for its citizens that al-Qaeda, which enjoys a strong pres- lature is facing pressure from progressive to discuss future government formations ence in Yemen, might be strengthened by groups in the country to repeal old statutes and political issues using the Internet as continued unrest. that remain in force, including laws that a forum runs counter to both the goal of proscribe jail time for nonviolent speech building a new democratically engaged The new immunity law violates Yemen’s and structural modifications that effec- nation and Tunisia’s treaty obligations international legal responsibilities under tively give the executive branch total con- under the ICCPR not to confer “unfet- the ICCPR, to which Yemen is a party. trol over the nomination, promotion and tered discretion” to limit freedoms using Article 2 of the ICCPR states that “[e]ach discipline of judges. national laws. State Party undertakes . . . to ensure that any person whose rights or freedoms as Article 19 of the ICCPR, to which herein recognized are violated shall have Tunisia is a party, provides that “Everyone Saleh’s Amnesty: Providing Peace an effective remedy, notwithstanding that shall have the right to freedom of expres- or Preventing Remedy? the violation has been committed by per- sion; this right shall include freedom to On January 21, 2012, the Yemeni par- sons acting in an official capacity.” Thus, seek, receive and impart information and liament passed a law granting President the ICCPR guarantees an effective remedy ideas of all kinds, regardless of frontiers, Ali Saleh immunity for all “politically to any citizen whose rights have been 41 violated, regardless of whether the per- legislative chamber. Given the present state The HRW report details safety and health petrator was acting in his official capac- of internal Yemeni politics making domes- hazards resulting from toxins and dust ity. Despite the political considerations tic change unlikely, a diametric shift at the inhalation, as well as the lack of proper in Yemen, General Comment 31 of the highest level of parliament as the issuing attire and equipment to prevent these haz- Human Rights Committee, which informs body is necessary to ensure compliance ards. Notably, HRW points out that the poor analysis of states’ obligations under Article with Yemen’s international obligations. If safety standards in Zambia’s Chinese-run 2, notes that “[t]he requirement under legislation like this immunity law is used to mines resemble the labor abuses occurring article 2, paragraph 2, to take steps to give parlay citizens’ internationally guaranteed in mines in China. effect to the Covenant rights is unqualified right to redress in exchange for political Zambia’s Mines Safety Department is and of immediate effect. A failure to com- stability, the weight of international legal responsible for enforcing the country’s ply with this obligation cannot be justified commitments would be insignificant in the mining regulations. However, human by reference to political, social, cultural or minds of policymakers and national enti- rights groups report that the department economic considerations within the State.” ties responsible for enforcement. is ineffective, failing to enforce both Amnesty can be a powerful conflict Kyle Bates, a J.D. candidate at the domestic and international labor law in resolution tool, but guidelines published by American University Washington College the Chinese-owned copper mines. While the Office of the High Commissioner for of Law, covers the Middle East and North regulation of all Zambian mines is sub- Human Rights (OHCHR) prohibit broad, Africa for the Human Rights Brief. par, human rights group emphasize that blanket grants of amnesty that infringe on the Chinese-owned mines are some of essential human rights by preventing pros- the worst in the country. International Sub-Saharan Africa ecution of those who “may be responsible” Labor Organization Convention No. 176 for crimes against humanity. The reintegra- concerning Safety and Health in Mines tion of combatants back into society, both Labor Abuses in Zambia’s sets out basic mine safety standards that judicially and socially, is a common obsta- Copperbelt states and employers must follow. Not cle to national repair following intrastate Zambia, known for its mineral wealth and only do Chinese employers fail to comply conflict, and immunity from prosecution is currently Africa’s largest copper producer, with these standards, but they also tend to a customary way to begin reconciliation as has attracted significant Chinese invest- discriminate against employees for affili- discussed by the International Committee ment since 1990. While these investments ation with non-Chinese labor unions even of the Red Cross (ICRC). This comes with have created jobs and increased copper though freedom of association is pro- the explicit exception that such amnesty production, human rights groups decry tected under the International Covenant on should not be used to allow those with the copper mines’ poor labor conditions Economic, Social, and Cultural Rights and command authority and suspected of war that have existed since these investments the International Covenant on Civil and crimes to evade punishment. began. A recent Human Rights Watch Political Rights. Domestically, mine safety (HRW) report examines the labor practices and freedom of association are outlined The new immunity law signed by of Chinese state-owned copper mines, and within the Zambian Industrial and Labour President Saleh contravenes both the let- calls on the Zambian and Chinese govern- Relations Act 269 and the Minimum Wages ter and spirit of the ICCPR, and a fun- ments to take measures to enforce labor and Conditions of Employment Act 267. damental misuse of amnesty as a remedy laws and conform to international labor for any government-sponsored prosecution HRW has called on the Chinese standards. Advocacy organizations like for crimes committed against the people government to convene the Forum on HRW hope that shedding light on these of Yemen. Without making a judgment China-Africa Cooperation to establish violations will ensure that further eco- as to President Saleh’s guilt or innocence mechanisms addressing labor conditions nomic development of Zambia does not by preventing the requisite investigation, and compliance with international human jeopardize the safety of its workers. the Yemeni parliament has acted inconsis- rights standards in foreign investments. tently with international law. The General Observed labor violations in the HRW also recommends that the Zambian Comment notes that failure to investigate Chinese-owned mines include low wages, government improve the functionality of violations of the aforementioned rights, long hours, a lack of safety standards, the Mines Safety Department, and also implicitly folded into the government’s and undercutting of mining unions. While investigate and prosecute mining company blanket grant of criminal immunity, may dangers are inherent to copper mining, officials who intimidate miners into work- constitute a separate breach of the ICCPR. Zambian government representatives admit ing in hazardous areas. that safety conditions in Chinese-owned Internal politics within Yemen make it In response to the HRW report, the copper mines are very poor. For example, unclear as to whether conventional politi- Chinese Non-Ferrous Metals Mining in 2005, mine explosions killed forty-six cal channels of overturning a policy like Corporation (CNM), which operates four Zambian workers, many of whom were this one would even be possible. The copper mines in Zambia, said that “lan- initially unidentified because the mine Supreme Court is effectively controlled guage and cultural differences” could have operators did not keep employee records. by the Executive branch, and one chamber resulted in “misunderstandings.” Since the Contrary to copper mining and processing of the bicameral legislature — the Sura report’s release, however, CNM has prom- standards throughout Zambia, the Chinese- Council — is entirely appointed by the ised to conduct a general investigation, and owned mines often require twelve-hour President. The President’s majority party also to rectify existing malpractices. Yet shifts instead of the eight-hour shifts controls 238 of the 301 seats in the other human rights groups continue to emphasize outlined in Zambian mining standards. 42 the need for involvement of the Zambian the TFG based on Sharia law. Al-Shabaab violence, including rape, violence, and government if labor conditions and standards formed shortly after this defeat as a TFG forced marriage. A lack of permanent are to improve. off-shoot and has been causing havoc ever security measures and preventive efforts since. Recently, the number of uprooted such as adequate lighting at transit cen- Human rights abuses associated with and displaced Somalis has increased ters has impeded efforts to alleviate these Chinese involvement in Africa are not dramatically due to regional instability, human rights violations. limited to Zambia. Recently, China has and extreme drought and famine. Somali sold arms to the Sudanese government, In light of these crises, human rights civilians continue to flee drought and con- some of which have been used to remove advocates emphasize the importance of flict-affected areas to seek assistance across indigenous southerners from their lands TFG’s collaboration with the interna- the border, but have faced repeated and to provide for Chinese development of tional community, as outlined in the 2011 unlawful deportation back to their war-torn oil fields. Additionally, the government Kampala Accord, to assist the transitional country despite obligations under the 1951 of Zimbabwe has become heavily reliant government in holding accountable those Refugee Convention to allow safe haven to on Chinese lending and investment in responsible for humanitarian law viola- asylum seekers escaping violence. exchange for natural resources; human tions. International humanitarian law, also rights advocates note with frustration The severe drought, combined with known as the law of war, is defined in the the detrimental social impact of growing the armed conflict, have led the UN High four Geneva Conventions of 1949, which Chinese alliance with Zimbabwe, allowing Commissioner for Refugees to deem the seek to limit the effects of armed conflict Zimbabwe to continue practices contrary situation in Somalia “the worst humanitarian on civilians and to restrict the methods to international norms and pressure. crisis in the world today.” In 2010, the Office of warfare. These norms are intended to of the High Commissioner for Refugees protect wounded members of the armed The consequences of China’s increased reported that nearly 1.46 million civilians forces, prisoners of war, and refugees in involvement in Africa remain the subject of had been displaced, including 614,000 forced conflict areas. much debate among human rights groups. to flee to neighboring countries. Since this While China’s willingness to build roads One critical component of international crisis declaration, human rights groups have in Gabon, develop mines in Zambia, and humanitarian law is the 1951 Refugee been calling for international relief efforts. buy oil in Sudan has allowed for increased Convention, which requires conflicting Additionally, these groups have criticized economic development, human rights parties to follow the principles of non- Kenyan and Ethiopian forces for violating advocates continue to address the lack discrimination and non-penalization of international humanitarian law standards by of respect for human rights. As Zambia’s civilian conflict victims. The Convention returning refugees to conflict areas. mining industry grows, advocates will also contains non-refoulement provisions continue to make the case that sacrificing Human rights groups have reported that prohibit the forced return of refugees domestic and international labor standards, numerous other human rights violations facing persecution or violence in their along with other human rights, is too big a perpetrated against Somali refugees in countries of origin, which Ethiopia and price to pay to attract foreign investment. addition to forced return, including arrest, Kenya have violated by refusing safe haven deportation, and abuses by military forces to Somali refugees. and police. For example, in violation of Abuse of Somali Refugees in Kenya As abuses against Somali refugees Kenya’s Refugee Act of 2006, Kenyan and Ethiopia are increasingly exposed, the interna- police regularly arrest without cause tional community continues to call on the Since 2010, escalating conflict in south- and extort money from Somali refugees. Somali, Kenyan, and Ethiopian govern- ern Somalia between forces allied with the Furthermore, overcrowding and a con- ments to respect humanitarian law. Human Somali Transitional Federal Government tinued influx of asylum seekers have led rights activists insist that hosts of Somali (TFG) and the Islamist armed group to poor living conditions in the refugee refugees end their unlawful return and al-Shabaab has resulted in thousands of camps. The Dadaab refugee camp in Kenya alleviate overcrowding of refugee camps. civilian casualties and numerous human is currently the largest refugee camp in the Without timely investigation and pros- rights abuses against the refugee popula- world, sheltering around 450,000 refugees ecution of international humanitarian law tion. Human rights groups continue to though it was built to hold only 30,000. violations being perpetrated within and encourage the TFG, the United Nations As a result of camp congestion, vulnerable outside Somalia, however, measures to (UN), the African Union (AU), the groups such as women and unaccompa- improve refugee conditions will prove Kenyan and Ethiopian Governments, and nied children experience little protection. insufficient to address the humanitarian the African Union Mission in Somalia Human rights groups have also received crisis confronting the Somali people. (AMISOM) to take steps to ensure that reports of Kenyan police raping Somali all parties are trained on international refugees and not being held accountable Saralyn Salisbury, a J.D. candidate humanitarian law standards and how to even when the information comes to light. at the American University Washington respond to the increasingly frequent abuses College of Law, covers Sub-Saharan Africa Similar to the refugee situation in committed against refugees. for the Human Rights Brief. Kenya, Somali refugees in Ethiopia face The current conflict between the TFG instability and abuse. When Somali women and Al-Shabaab began in 2006 when the and girls travel to and arrive at refugee TFG, Ethiopian troops, and other military camps in Dolo Ado, Ethiopia, they expe- allies defeated the Islamist Courts Union rience an increased risk of gender-based (ICU), which was a rival administration to 43 Europe to rule that a thirteen-year-old girl such as Election Fraud Protests in Russia N.Ç. engaged in the intercourse willingly, Briefly in January and February 2012, The Case of N.Ç.: A Turkish then what child-victim of sexual violence it appeared the Russian government had Child’s Presumed Consent to stands a chance of obtaining justice in decidedly altered its public policy against Prostitution Turkey? Because the Supreme Court is opposition protests and public demonstra- Turkey’s highest court, N.Ç.’s only alterna- In many countries, when a thirteen- tions. The Russian government allowed tive for recourse is through an international year-old girl is sold as a child prostitute, two successful, peaceful demonstrations to court of human rights. courts presume the girl has been raped. occur on December 10 and December 24, The Supreme Court of Appeals in Turkey International human rights law does 2011, and a third, much later, on February recently found otherwise. Two women, who not permit the assumption of consent by 26, 2012. Human rights organizations and purported to be thirteen-year-old N.Ç.’s a minor to prostitution. Article 34 of the activists looked hopeful and remarked on employers at a local factory in the province UN Convention on the Rights of the Child possible explanations for the policy shift. of Mardin, sold her as a child prostitute to requires that all State Parties undertake to But the government’s arrest of nearly 550 over twenty-six men for a period of seven protect children from all forms of sexual people at election fraud demonstrations on months. Both women have been sentenced exploitation and abuse by taking appro- March 5, 2012 has refuted these hopes. to nine years in prison, but the twenty-six priate national, bilateral, and multilateral The Russian government has ratified men, including teachers, civil servants, measures to prevent child prostitution. several legal documents that protect the and village elders, have received reduced Article 3 of the Optional Protocol to right of its citizens to protest publicly. sentences ranging from one to six years. the UN Convention on the Rights of the Russian Constitution Article 31 states that The men benefited from a legal techni- Child requires that all participating State Russian citizens “shall have the right to cality, namely the old Turkish penal code Parties make sexual exploitation of a child gather peacefully, without weapons, and that was in effect at the time of the rapes a criminal offense, and take measures to to hold meetings, rallies, demonstrations, included a provision allowing reduced establish the liability of legal persons for marches, and pickets.” In customary inter- sentences in cases where the minor committing an offense of child prostitu- national law, the Universal Declaration of consented to the sexual activity. The lowest tion. Neither document mentions or allows Human Rights (UDHR) Article 20 provides court applied the old code, ruled that the consent by a child to rape or prostitution. for freedom of peaceful assembly and asso- girl consented to the intercourse, and sen- Turkey ratified both the Convention and ciation and Article 19 provides for freedom tenced each of the men to a minimum of the Optional Protocol in 1995 and 2002 of opinion and expression. The International five years in prison for statutory rape. The respectively. Covenant on Civil and Political Rights court also agreed to lower the sentences The conventions imply that there is no (ICCPR) Article 21 requires states to rec- of some defendants by between two and basis in international human rights law for ognize the right of peaceful assembly and ten months based on good behavior during the assumption of consent by a minor to provides that “no restrictions . . . be placed the trial. Upon appeal, the Supreme Court acts of sexual violence, and many people on the exercise of this right other than those upheld the lower court’s ruling, and an in Turkey seem to agree. Human rights imposed in conformity with the law and official of the Court defended its applica- activists protested the Supreme Court’s which are necessary in a democratic soci- tion of the old code as an “undebatable rule ruling outside the Palace of Justice in ety in the interests of national security or of law.” The reduced sentences for these Istanbul on Friday, November 4, 2011. public safety, public order, the protection of perpetrators are alarmingly indicative of The Family and Social Policies Minister public health or morals or the protection of the state of children’s rights in Turkey. of Turkey, Fatma Şahin, called the sen- the rights and freedoms of others.” In prac- The new code leaves no room for con- tence “unacceptable and worrying;” the tice, this provision enables governments to sideration of consent by a minor to sexual President of Turkey himself, Abdullah Gul, require protesters to obtain permits prior to intercourse (the age for sexual consent in said the Supreme Court’s ruling made holding public demonstrations. Turkey is fifteen). As such, the new law him “deeply uncomfortable;” and Umit Though not required specifically by seems to be a legal victory for children’s Kocasakal, head of Istanbul’s bar asso- its Constitution, the Russian government rights. However, the alarming fact of N.Ç.’s ciation, said the Supreme Court’s decision requires citizens to obtain a written permit case is not that the courts applied the old was “bloodcurdling.” But Supreme Court from local authorities, such as the local penal code. Courts are often precluded officials simply stated that “this decision is Mayor’s office, before protesting publicly. from retroactively applying new laws. The not definite, it is also not possible for this Applicants must indicate the location and alarming fact of N.Ç.’s case is that all of decision to be changed by making noise.” estimated number of participants, and may the judges on Turkey’s Supreme Court Regardless of the reason for the be subject to a nominal fine if their esti- ruled that N.Ç. consented to sexual inter- Supreme Court’s decision, N.Ç.’s case illu- mates turn out inaccurately low. If Russian course with at least twenty-six men. In minates the reality that the achievement authorities meet resistance when attempting other words, the Supreme Court ruled that of human rights principles must come to disperse demonstrators, resisting pro- a thirteen-year-old girl had the capacity through the law, at the hands of those who testers may be detained for up to 15 days. to consent to child prostitution. If a child administer it. Without the support of a can legally consent to prostitution, then Prior to the March 5 arrests, some society’s judicial authorities, victims of child prostitution in itself is not a violation commentators theorized that the change human rights violations have grim pros- of that child’s human rights unless it is in Russia’s response to public protests pects for justice and restitution. against the child’s will. If a court is willing could conceivably be explained by the 44 permit requirement. Previous protests that Regardless, Vladimir Putin is Russia’s become extremists and terrorists” if they ended in mass arrests either did not have President yet again, and opposition protest- did not bring the approximately 2,000 stu- a permit at all, or had displayed gross ers are being arrested in droves. Perhaps the dents home from Islamic colleges abroad. inconsistencies between the number of next election season will provide renewed During 2011, government authorities shut individuals estimated to participate and hope for the respect of the people’s right down mosques throughout Tajikistan’s cap- those who actually attended, with the lat- to peaceful assembly — but then again, a ital, arrested individuals in their homes for ter exceeding the former by thousands in cynic would say, that seems rather unlikely. teaching unapproved schools of Muslim some cases. Conversely, both December thought, and forced religious groups to pay Rachael Curtis, a J.D. candidate at the demonstrations were sanctioned by the for heavy censoring of literature. American University Washington College Russian authorities after demonstrators of Law, covers Europe for the Human Article 8 of the Parental Responsibility obtained the required permits, and were Rights Brief. Law states, “Parents are obliged…not to carried out peacefully, with no violence let children-teenagers participate in the occurring between police and demonstra- activity of religious organizations.” The tors. The permit requirement theory may South and Central Asia only children exempt from this law are also explain the March 5 arrests, as many those enrolled in state-sanctioned religious of those arrested had refused to leave their Tajikistan’s Parental schools. The Tajik government’s laws vio- demonstration sites even after their protest Responsibility Law: Preventing late multiple articles in the ICCPR, most permits had expired at 9 p.m. Extremism or Violating Rights? notably Article 18. Article 18 provides While protestors’ failures to satisfy per- On August 6, 2011, Tajikistan’s presi- for freedom of “thought, conscience, and mit requirements may explain the gov- dent, Emomali Rahmon, signed the religion” and is one of the ICCPR’s seven ernment’s varied responses to demonstra- Parental Responsibility Law into effect, non-derogable rights. Because the Article tions, other commentators theorized that banning children under the age of eighteen 18 rights are non-derogable, Tajikistan December’s peaceful protests should be from attending religious services except cannot, except under very limited circum- attributed to something less tangible — the funerals. On August 31, police began stop- stances, infringe on these rights. Although political considerations required by the new ping individuals under the age of eighteen the Parental Responsibility Law does not and middle-class demographic participat- from entering mosques to celebrate Eid prevent individuals from self-identifying ing in those protests. Vladislav Y. Surkov, a al-Fitr. The law is exclusively enforced as Muslim or from practicing Islam as an Kremlin official who previously protected against Muslims, who make up 90% of adult, it does violate the Article 18 right Mr. Putin from potentially politically dan- Tajikistan’s population. According to for any individual to “manifest his religion gerous street rallies, stated the protestors Suhaili Hodirou, a spokesperson for the or belief in worship, observance, practice, on December 10 represented “the best part Tajik government’s Office of Human and teaching.” Article 18 also requires that of our society, or, more accurately, the most Rights, “Religious activity is only banned countries “respect the liberty of parents…to productive part.” Yevgeny S. Gontmakher, a up to the age of 18 — beyond that they ensure the religious and moral education of government economic advisor, commented have full rights.” The Tajik government their children in conformity with their own on the remarkability of the protestors’ adopted the Parental Responsibility Law convictions.” The Parental Responsibility demands for political rights rather than in conjunction with an amendment to the Law prevents parents from exercising the economic relief, stating this fact “is a sign Criminal Code created to punish organizers right to educate their children in accordance that Russia is becoming a Western country, of “extremist religious” teaching to create with their religious beliefs. in its own way.” a safer environment for children who the Paragraph 3 of Article 18 allows excep- government says are vulnerable to recruit- Now following the March 5 arrests, tions to the freedom to worship when ment by extremist groups. These provisions another theory must be posited: perhaps restriction is necessary to protect the public violate the freedom of worship provided in the seeming, now probably temporary, interest. However, General Comment 22 Article 18 of the International Covenant on policy shift had nothing to do with permit specifies that these restrictions should be Civil and Political Rights (ICCPR), and, as requirements or protest demographics. interpreted narrowly: limitations may never a party to the ICCPR, Tajikistan is bound to Perhaps instead it was simply and entirely derogate from Article 18’s “fundamental protect the right to freedom of religion, the political. In Russia, political protests are character” but may restrain the freedom to right to peaceful assembly, and the right to renowned for producing violence, but not manifest religious beliefs if the restrictions engage in cultural activities. change. Perhaps permitting the protests are necessary to protect other rights guaran- to occur peacefully was only Vladimir The new laws restricting religious teed in the ICCPR. Permissible limitations Putin’s bone to the people to appease them freedom come during a movement to must meet the specific purpose for which after allegedly rigged parliamentary elec- eliminate unsanctioned religious teaching, the restriction is implemented, be directly tions in December but before his expected which the government suggests leads to related and proportionate to the need it is presidential election on March 4. If so, violent extremism. The President intro- meant to fill, and may not be “applied in a one might argue it was quite an effective duced the new laws after the Tajikistan discriminatory manner.” distraction. No notable protests occurred Defense Minister released a report show- If, as President Rahmon says, the between December 24 and February 26, ing increased juvenile violent crime Parental Responsibility Law is necessary and Human Rights Watch, which moni- rates in 2010. In August 2010, President to prevent religious extremism and ter- tored the protests, continued to write that Rahmon made an announcement to Tajik rorism in Tajikistan, the restriction must the protests occurred peacefully. parents warning that their “children will 45 be directly related and proportionate to but disappeared after Indira Gandhi’s adequate health care facilities, including the possibility of individuals becoming 19-month emergency suspension of the information, counseling, and services in terrorists through religious practice in Constitution ending in 1977. During this family planning.” Article 16 (1)(e) focuses Tajikistan. Because the Criminal Code time, Prime Minister Gandhi’s son, Sanjay, on the disparity of power between spouses, does not specify the meaning of “extrem- implemented a policy of forcible steril- requiring women to have equal rights to ist religious” teaching and the new law ization in an attempt to curb the grow- choose the number and spacing of children restricts most children from attending all ing Indian population. When emergency and to receive necessary information to religious activities, the statute is neither law was lifted, Sanjay’s program stopped, make informed family planning choices. directly related nor proportionate. The and incentivized sterilization programs fell Incentive-based programs violate wom- Parental Responsibility Law is also being out of favor. However, in recent years, en’s access to information and adequate implemented in a discriminatory manner as India’s population reaches 1.2 billion, health services by placing them in a posi- because, thus far, it has only been enforced the federal government’s Family Welfare tion in which they are not empowered against Muslims. The right to freedom Program returned to the practice of incen- to make informed family planning deci- of religion is non-derogable under the tivizing sterilization among men and sions. As currently implemented, the Fund’s ICCPR, and the Parental Responsibility women in rural areas. incentivized sterilization schemes greatly Law does not meet the Comment’s strin- Unlike previous programs, the Rajasthan limit women’s legally protected choice and gent test to allow for limitation on the scheme was the first to outsource surger- oppress, instead of promote, their equal manifestation of religious practice. ies to private clinics. In an attempt to meet rights and advancement. Private individu- its goal of 30,000 sterilizations over a als, who profit from women’s lack of infor- Exchanging Reproductive Justice period of three months, the Fund offered mation, are able to coerce women into get- for a Food Processor: Incentivized private clinics about $308.00 per surgery ting the surgery before they have considered Sterilization in Rajasthan, India and an additional $10.00 per case if a single other options. The provisions in Articles In the summer of 2011, India’s National clinic performed more than thirty opera- 12, 14, and 16 require India, as a party Population Stabilization Fund (Fund) tions a day. By offering such incentives to to CEDAW, to take active steps to ensure instituted a new scheme in Jhunjhunu, the private sector, the Indian government women are provided equal access to health Rajasthan, a rural town west of New Delhi, encourages clinics to “cut corners,” says care services and adequate information, offering incentives for area residents who Abhijit Das of Health Watch Uttar Pradesh. regardless of where they live or how much agreed to undergo sterilization surgery. Utilizing the private sector also puts more money they have. The first step toward Government health officials created a pressure on women to undergo the oper- meeting this international obligation is to sweepstakes program, entering those who ation because clinics have no monetary provide comprehensive information about agree to be sterilized into a drawing to interest in obtaining informed consent, in different forms of contraceptives available, win a TV, mini car, or food processor. providing women with alternative contra- the risks and benefits of each, and about This scheme represents one of a pattern of ceptive options, or in explaining the risks women’s protected right to choose the size programs designed to help India meet its associated with the procedure. Das says and spacing of their individual families. sterilization is the number one contracep- Millennium Development Goal to reduce Megan Wakefield, a J.D. candidate tive method offered in India and that one its birth rate to two children per mother at the American University Washington quarter of people in a recent survey did not by 2015. While the program does perform College of Law, covers South and Central even know about other options (37 percent some vasectomies, incentive programs Asia for the Human Rights Brief. in rural communities disproportionately of Indian women have been sterilized, three affect women: according to the most recent percent use the pill, and five percent use National Family Health Survey, 37 percent condoms). Additionally, under incentive- East, Southeast Asia & Oceania of Indian women have been surgically based sterilization programs, women face sterilized, and one percent of men have an increased risk of medical complications Recent Legal Reforms in Burma had vasectomies. The use of incentivizing, because clinics do not provide the level of Give Hope for Lasting Democratic and often coercive, practices by govern- care necessary to ensure proper health, and Change women often decide to have children at a ment health officials compromise women’s Since President Thein Sein assumed younger age and get sterilized between the health by encouraging women to undergo power in March 2011, Burma’s nominally ages of 22 and 23. At this age, women are this dangerous procedure, often without civilian government has instituted a num- more vulnerable to gynecological problems informed consent, proper health care, or ber of legal reforms drawing the attention and are four times more likely to need a family planning information. By creating of the United Nations (UN) and many hysterectomy later in life. programs that decrease women’s access Western democracies. Observing mem- to quality health care and family plan- CEDAW’s Article 12 requires that state bers of the international community are ning information, India violations Articles parties eliminate health care discrimination considering whether these changes are 12, 14, and 16 of the Convention on against women. The article specifically sufficiently genuine to warrant long-term the Elimination of Discrimination Against provides for access to services, “including engagement with the Burmese govern- Women (CEDAW). those related to family planning.” Article ment and the removal of sanctions against Incentive-based sterilization programs 14 highlights the specific discrimination the country. As evidence of commitment were popular with the Indian govern- rural women face, requiring States to to democratic advancement, they must ment from the 1950s until the mid-1970s ensure that rural women have “access to weigh the significance of changes made 46 by executive and legislative decree over the of fifteen members, including former mili- nevertheless impact the demand for human past six months against nearly 50 years of tary officials, bureaucrats, and academ- rights accountability in Burma. authoritarian rule by military junta. ics. Few details are available about its scope of responsibilities. According to an Burma’s most important legislative Like, Comment, Share: Robust announcement by the Commission, it was action in the past six months has been Domestic and International Debate founded to protect the rights of “citizens amending its Political Party Registration on Thailand’s Lese Majeste Laws described in the constitution.” This man- law. In October 2011, Parliament removed Paving the Way for Reforms date may prove controversial, as Burma’s language that barred participation by par- 2008 Constitution denies citizenship to In November 2011, the government ties that had not run in previous elections, individuals whose parents are not Burmese of Thailand convicted a 61-year-old man and by individuals with past convictions. nationals. The NHRC’s first actions have for insulting the country’s monarchy in The law now allows opposition leader been to call for the release of all remaining four text messages. Under Thailand’s lèse Daw Aung San Suu Kyi to represent her political prisoners and to visit internally majesté law — one of the strictest in the National League for Democracy (NLD) in displaced persons in Kachin, though not world — Ampon Tangnoppakul was sen- April 2012 parliamentary elections. The to investigate allegations of human rights tenced to 20 years in prison, or five years pro-democracy NLD is legally registered abuse by the military there. for each text. Tangnoppakul’s sentence and Suu Kyi is seeking a parliamentary preceded two other highly publicized con- seat in the rural township of Kawhmu, A recent petition submitted to the NHRC victions in December. A Thai-US citizen southwest of Rangoon. Both will reengage will test both the Commission’s mandate was sentenced to 30 months for translating in the political process despite Burma’s and independence, key criteria under the and posting online passages of a banned military junta having refused to hand power Paris Principles’ minimum competency biography of the King. A Red Shirt politi- to NLD after its 1990 electoral victory. requirements for national human rights cal activist was furthermore sentenced The winner of the 48 contested parliamen- institutions. In November 2011, nearly to 15 years for speeches made in 2008. tary seats will nevertheless have limited thirty former doctors, lawyers, and students Thailand has seen an increase from 33 influence among the 498 total elected seats signed a letter requesting reinstatement of lèse majesté cases in 2005 to 478 by 2010. in the upper and lower houses. The military their access to education and practicing These three cases in particular have trig- controls one-quarter of the bicameral leg- licenses. Due to their previous detention as gered international expressions of concern islature, and the President’s party occupies political prisoners, lawyers such as Aung and much domestic debate and activism 80% of the remaining seats. Thein, former legal counsel to Aung San in a struggle for the future of freedom of Suu Kyi, have been banned from resuming Burma’s first parliament in over expression in Thailand in 2012. practice. Though only protecting limited twenty-two years has passed additional rights of citizens, the Burmese Constitution The lèse majesté law is set forth in legal reforms. Late 2011 saw the pas- nevertheless guarantees equal opportunity Article 112 of Thailand’s Criminal Code, sage of a Labor Organization Law and to employment in provision 349, and a which decrees that “whoever defames, Peaceful Assembly and Protection Bill. fundamental right to education in provision insults or threatens the King, the Queen, the The former allows workers to organize 366. The petition is a potential bellwether Heir to the throne or the Regent shall be pun- unions and strike for the first time since to determine how the retired civil servants ished with imprisonment of three to fifteen 1962. The Assembly bill legalizes peace- and scholars will approach allegations of years.” Before 2006, Article 112 had been ful demonstrations after applying for per- rights violations through newly created, used most frequently by political elites as mission from the government with five government-sanctioned channels. a proxy for targeting enemies with dissent- days notice. After fifty years of military ing political views. Any citizen can bring a th rule before President Thein Sein, a retired On the 64 anniversary of its inde- lèse majesté complaint to police, and trials military official himself, skeptics question pendence, Burma can also celebrate the are often closed to the public. Thailand has the effects of these laws in practice. These conclusion of a year that saw it win the been a party to the International Covenant cautious observers also point to reports 2014 chairmanship of ASEAN, a visit on Civil and Political Rights (ICCPR) since of military abuse in Burma’s northern from Secretary Hillary Clinton (the first 1996, Article 19 of which obligates the Kachin state, despite a recent ceasefire by a US Secretary of State in fifty years), country to protect the rights of individuals between the government and ethnic Karen and commitments to discuss expansion of who seek, receive, and impart information rebels, as evidence of reform in name only. humanitarian and other foreign aid from and ideas of all kinds. Nevertheless, support- Furthermore, the government has yet to the Japanese and British governments. ers of Thailand’s constitutional monarchy release as many as 900 political prisoners. While the legitimacy of reforms remains to deny the law’s harsh effect on freedom of be seen, Burma’s newest laws and NHRC Perhaps the best example of the ten- expression. Instead, they cite the need to pro- at least create increased space for activists sion between the government’s persis- tect the monarchy as an institution to justify to take advantage of new rights and pro- tent authoritarian character in the face continued enforcement of Article 112. tect existing, fledgling rights. The NLD, of burgeoning democratic advancements Suu Kyi, and other activists have shown Article 112 is often used in conjunction is Burma’s National Human Rights a willingness to continue to exploit even with the Computer Crimes Act (CCA) of Commission (NHRC). The NHRC was politically motivated change. Whether the 2007 to block lèse majesté content. Under created in September 2011 by Government President or military reneges on demo- this law, 117 judicial orders have blocked Notification No. 34/2011, which bypassed cratic progress, their political engagement 75,000 Internet URL addresses in Thailand legislative approval. The body is comprised and the international attention it draws will since 2007. The CCA’s vague language 47 targets Internet users, their online hosts, a statement calling for amendments to announced plans to spend $12.6m in tech- or other intermediaries related to posting both Article 112 and the CCA. According nology to block online content critical of data ostensibly threatening the “kingdom’s to the Special Rapporteur, the laws are the monarchy. In an effort to diffuse ten- security.” The combined effect of the two overly broad and impose harsh crimi- sions, Thailand’s Truth and Reconciliation laws is to expose a large number of Thais nal sanctions. Such international pressure Commission has announced its support to what some observers, such as Human was met domestically with a December of reforms to Article 112. These changes Rights Watch, criticize as politically moti- “Fearlessness Walk,” where lèse majesté would give lighter sentences for convic- vated prosecutions encouraged by royalist opponents stood silent for 112 minutes. tions and better legal oversight of claims. supporters. This hostile attitude toward Reactions in support of Article 112 were The announcement was publicized at the online intermediaries has led Thai authori- also seen in Bangkok in December, when same time that the National Human Rights ties to warn Facebook users that sharing or protesting Thai royalists defended the law Commission formed a task force to review liking certain messages could expose them in front of the US embassy. In this way, the legality of lèse majesté enforcement. to lèse majesté penalties. The Thai govern- international attention has contributed to The results of the Commission’s report ment has additionally asked Facebook to vigorous debate of lèse majesté within will be available in June 2012. Until then, remove 10,000 pages of what it perceives Thailand. international pressure, domestic debate, to be royal insults. and investigations by impartial govern- Despite criticism, the government’s ment institutions will continue to act as an Thailand underwent its Universal pursuit of convictions under Article 112 engine for change. Periodic Review in early October 2011, show a continuing resolve to politicize when 14 member states recommended Thailand’s monarchy. While Thailand’s Thais-Lyn Trayer, a J.D. candidate at the amending or repealing Article 112. A few Facebook users contemplate the latest American University Washington College days later, UN Special Rapporteur for lèse majesté convictions, Deputy Prime of Law, covers East, Southeast Asia & Freedom of Expression Frank la Rue issued Minister Chalerm Yoobamrung recently Oceania for the Human Rights Brief.

48 Updates from the International and Internationalized Criminal Tribunals

International Criminal Court are already sufficient and ongoing national and national authorities may doubt the proceedings. Finally, the Prosecutor con- seriousness of the OTP’s investigations. As Maximizing the Impact of ICC siders whether ICC proceedings would the prospect of an ICC investigation fades, Preliminary Examinations violate the interests of justice. there are fewer incentives to comply with the ICC’s laws. In this way, prolonged pre- The primary goal of the International In practice, however, the timeline of liminary examinations weaken the Court’s Criminal Court’s (ICC) preliminary exami- preliminary examinations conducted by the ability to deter crimes and encourage nations is to determine whether there are Prosecutor to date has been inconsistent. national proceedings. The lack of even a grounds to launch an official ICC inves- Without a clear and predetermined time- general timeline is difficult for victims and tigation into a situation. As a basis for the line, the Prosecutor has progressed quickly affected communities, who have no indica- decision to open an investigation, prelimi- through all three Article 53(1) steps in tion of how long they must wait for justice, nary examinations have the potential to some situations, while drawing out his or if justice will even come at all. further the Court’s overall goals of end- analysis in others. In part, these discrepan- ing impunity and deterring future crimes. cies are necessary because the time required Preliminary examinations provide a To successfully achieve these goals, pre- to analyze Article 53(1) factors varies based potential avenue for the Court to have liminary examinations require a balanced on the circumstances. In evaluating admis- a greater impact outside the courtroom. approach. On one hand, the Office of the sibility, the Prosecutor must determine The OTP has taken some positive steps Prosecutor (OTP) must adopt a consistent whether there are already national pro- by increasing transparency, but the incon- method of analysis that provides sufficient ceedings covering the same crimes and sistent approach to preliminary examina- information about the investigation to spur individuals that would likely be the focus tions has weakened their credibility and national proceedings and alert potential of an ICC investigation. In the Democratic effectiveness in spurring national proceed- perpetrators of crimes that they could be Republic of the Congo and Uganda, the ings and deterring crimes. By establishing held accountable. On the other hand, the Prosecutor quickly found that no national clear guidelines, a general timeline, and OTP must adapt to a wide variety of cir- proceedings were ongoing and moved to consistently providing updates regarding cumstances and cannot provide informa- the next phase of his analysis. However, the preliminary examinations, the OTP could tion that would raise expectations about preliminary examination in Colombia con- help the ICC achieve its goals of deterring the Court’s involvement, compromise due tinues because some national proceedings crimes and ending impunity without even process, or risk the safety of victims and are ongoing. Therefore, the Prosecutor must going to trial. witnesses. During the first decade of the evaluate whether the national proceedings Court’s work, inconsistency among the are genuine and focused on the individuals New Mechanisms Established approaches to preliminary examinations, most responsible before moving to the next to Facilitate Merit-Based ICC especially the absence of clear timelines, phase in his analysis. Elections has limited their effectiveness. Although certain situations require At the Tenth Session of the Assembly The ICC initiates preliminary examina- more time to complete all of the Article of States Parties (ASP) from December tions in one of three ways: through a deci- 53(1) steps, as preliminary examinations 12 to 21, 2011, States Parties to the sion of the Prosecutor; through a referral in Colombia and other situations are drawn International Criminal Court (ICC) voted from a State Party or the UN Security out without even a general timeline, they in elections resulting in the largest change Council; or through a declaration of a non- become less credible. When the Prosecutor in leadership since the ICC’s first elections State Party pursuant to Article 12(3) of quickly decides to open an investigation in 2003. The nominations and elections of the Rome Statute, under which that State — as in the Kenya situation — without the Chief Prosecutor and six new judges accepts ICC jurisdiction for the prelimi- making a decision about long-term pre- were significant because two new com- nary examination and consequent proceed- liminary examinations — in places like mittees were established to evaluate the ings. In all three situations, the Prosecutor Colombia and Afghanistan — it can give qualifications of the candidates for those follows the same procedure to determine rise to the impression that the Prosecutor posts. Such committees have not been used whether there is a reasonable basis to pro- has been influenced by non-legal factors. in past elections, and they represent an ceed with an investigation based on three Disparate timelines may lead to impres- important step toward a more transparent criteria laid out in Article 53(1) of the sions that the Prosecutor allocates time and merit-based election process. Rome Statute. The Prosecutor must first and resources unevenly among preliminary determine whether there is temporal, mate- examinations, and could be mitigated by At the Ninth Session of the ASP in 2010, rial, and either territorial or personal juris- increasing transparency and establishing the ASP established a Search Committee diction. Second, the Prosecutor considers general timelines. to facilitate the nomination and election whether the case would be admissible, of the next Chief Prosecutor with the goal As preliminary examinations continue taking into consideration both the gravity of electing a candidate by consensus. The without a decision, potential perpetrators of the alleged crimes and whether there Search Committee received expressions of 49 interest or recommendations to consider 52 16, States Parties elected six new judges, Rule 77(A)(ii) of the Rules of Evidence candidates. After reviewing their creden- all of whom the Independent Panel found and Procedure (Rules), for Seselj’s willful tials, the Search Committee interviewed to be qualified. disclosure of protected witness information eight of the candidates and recommended on his website. In the second of three such The Independent Panel received similar four to the ASP. Following informal con- contempt proceedings related to Seselj’s praise as the ASP Search Committee for its sultations among States Parties, Fatou release of protected information, the Trial role in supporting a merit-based process, Bensouda was selected as the consensus Chamber found that Seselj directly and but faced different challenges and criti- candidate on December 1, 2011, and was intentionally violated its protective orders. cisms. One concern was whether and how formally elected on December 12, 2011. This case presents a unique challenge for the members of the Independent Panel Her nine-year term as Chief Prosecutor witness protection at the ICTY. Rule 69(C) would measure the qualifications of the will begin in June 2012. of the Rules requires that a testifying wit- candidates. Some requirements under the ness’ identity be revealed to the defense The creation of the Search Committee Rome Statute, such as that the candidate prior to trial as a basic tenant of the Article was praised for facilitating nominations possess high moral character, are difficult 21(4)(e) right to cross-examine. Yet when based on merit. Merit-based nominations to measure, and there were concerns about an accused individual ignores the ICTY’s and elections are important to maintain the the panel’s ability to accurately assess such protective orders and reveals a witness’ credibility and impartiality of the Court. intangible qualities. Nevertheless, many identity, other witnesses may be reluctant to The method of informally submitting found the panel members’ extensive expe- testify. In a case like Seselj, where fears of nominations to a committee also helps rience in international law and criminal witness intimidation stalled the proceedings to avoid practices such as vote trading, law as well as their geographic diversity for over a year in 2010, Rule 69(C) could which threatens the credibility of both and knowledge of different legal systems potentially endanger a witness. The Trial the Prosecutor and the Court. However, sufficient to provide expertise to evaluate Chamber noted that “public confidence in some criticized the Search Committee for the criteria for judicial candidates. the effectiveness of its orders and decisions is a lack of transparency and access to infor- As a judicial body, the independence absolutely vital to the success of the work of mation. The Search Committee was also and impartiality of the ICC are essential the Tribunal,” and it must ensure that future criticized for lack of diversity because only to its ability to deliver justice for grave witness protection measures will effectively five states were represented — one for violations of human rights. Electing court prevent such disclosures, as required by each regional group — and there were no officials through a merit-based process Article 20 of the Statute of the Tribunal. requirements for gender diversity. safeguards the independence of the Court According to Rule 75(B)(i), the Nominations for judicial candidates by alleviating perceptions of political Chamber may proprio motu institute also received impartial review intended influence that can arise from vote trad- witness protection measures to include to encourage a merit-based process. The ing. Therefore, fair and merit-based elec- expunging identifying information from Coalition for the International Criminal tions serve the Court in two ways: first, public records, allowing testimony via Court (CICC) created an Independent the Court benefits from the leadership of image or voice altering devices, or assign- Panel composed of experts in international the most highly-qualified candidates; and ing a pseudonym. Further, Rule 69 autho- law and criminal law to raise awareness second, the Court earns respect and confi- rizes protective orders for all informa- about the nomination criteria and review dence for representatives elected through tion used in the proceedings. In Seselj’s the qualifications of judicial candidates. a transparent and merit-based process. case, the Chamber issued protective orders Unlike the ASP Search Committee for the The Court will reap these benefits as the and pseudonyms for many witnesses, and Prosecutor, the Independent Panel did not mechanisms established to review the judi- issued a general order to Seselj to refrain endorse or oppose candidates, but rather cial and prosecutorial candidates for this from disclosing such information. Seselj evaluated their qualifications to deter- election are refined in the future. violated the orders of the Trial Chamber mine whether they met the criteria for Claire Grandison, a J.D. candidate when he released identifying information judges laid out in Article 36 of the Rome at the American University Washington and reprinted portions of statements made Statute, the founding treaty of the ICC. College of Law, covers the International by witnesses in confidential submissions, Article 36 specifies requirements related Criminal Court for the Human Rights which later appeared on his website and to candidates’ moral character, past expe- Brief. in a book that sold 10,000 copies. Seselj, rience, and competence in relevant areas representing himself, contended that the of law. Though the ASP has the authority witnesses gave him permission to disclose, to establish an Advisory Committee on Ad Hoc Tribunals that exposing information about the reli- judicial nominations under Article 36(4) ability of the witnesses was necessary for (c), it has never exercised this authority Limiting the Exposure of his defense, and that these witnesses did and, as such, the Independent Panel is not Protected Witnesses in ICTY not need protective measures. affiliated with the ASP. In its final report, Proceedings the Independent Panel found that four of The Amicus Prosecutor who brought On October 31, 2011, the International the nineteen judicial candidates were not the contempt charges also noted that Criminal Tribunal for the Former Yugoslavia qualified because they lacked either the Seselj seemed to enjoy the possibility (ICTY) sentenced Serbian Radical Party experience or competence in a certain area that he would be charged with contempt, leader Vojislav Seselj to eighteen months of law required under Article 36. After fif- thereby bringing attention to his stated incarceration for contempt of court, under teen rounds of voting from December 12 to goals of derailing the proceedings and 50 delegitimizing the ICTY. Because of the witness protection in the Balkans in June the evidence, and act as an intermediary willful nature of Seselj’s disclosures and 2010. The report highlighted the plight of between the witness and the defense. Seselj’s stated intent to “create conditions witnesses in the former Yugoslavia who Whatever measures of additional wit- for the next [disclosure]” when the con- have been murdered, threatened, and had ness protection the ICTY takes to address tempt proceedings conclude, the Chamber their identities revealed by parties intent such situations in the future, it faces the considered the need for a deterrent from on obstructing justice. Many witnesses are daunting task of balancing such a measure future disclosures. Seselj’s sentence of reluctant to testify, believing they will be against the Article 21(4)(e) rights of the eighteen months includes these punitive marked as traitors for doing so. In light accused “to examine, or have examined, considerations. of this, the Assembly decried the ICTY’s the witnesses against him.” In Seselj’s current practice of disclosing the identity The ICTY takes considerable steps to case, the law binding those present in of anonymous witnesses to the defense protect witness’ physical safety through the court from disclosing information did not prior to the trial. In cases where revealing Victims and Witnesses Section, providing stop him. Given the global audience for the identity of a witness is disproportion- security and stiff penalties for disclosure of Internet disclosures, Seselj’s actions likely ate to the risk of harm to that person, the protected information. However, such pro- present an area of concern to the tribunal. Assembly encouraged the ICTY to con- tective measures do not prevent an accused It remains to be seen whether the ICTY sider amending the Rules to allow witness individual from disclosing information as can or will institute a process for allowing anonymity to the defense. On method used Seselj did. Noting this dilemma and the anonymous witnesses to testify without by the European Court of Human Rights is inherent difficulty of testifying at a war infringing on the rights of the accused. to secure a “special advocate,” functioning crimes trial, the Parliamentary Assembly of independently of the parties, to analyze the Council of Europe drafted a report on

Judgment Summaries: International and public incitement to commit genocide, previous rulings based, inter alia, on a new Criminal but acquitted the two men of all other fact or change in circumstance, but it held Tribunal for Rwanda charges. Mugenzi and Mugiraneza were that the fact that an additional year had both sentenced to thirty years in prison. passed between its rulings on the initial The Prosecutor v. Bizimungu, The Chamber acquitted Bizimungu and Bizimungu and Mugenzi challenges relat- et al., Trial Judgment, Case No. Bicamumpaka of all nine of the charges ing to undue pre-trial delay and the actual ICTR-99-50-T based on a lack of sufficient evidence, and commencement of trial did not constitute ordered their immediate release. a new fact or change in circumstance war- On September 30, 2011, Trial Chamber ranting reconsideration. Thus, the only II of the International Criminal Tribunal Before turning to the allegations claim relating to undue delay considered for Rwanda (ICTR) issued its judgment in against the four accused, the Trial Chamber by the Trial Chamber in its judgment was the case against Casimir Bizimungu, Justin began its judgment by addressing a num- a claim brought by the Mugenzi Defense Mugenzi, Jérôme-Clément Bicamumpaka, ber of preliminary challenges raised by alleging that his right to a speedy trial was and Prosper Mugiraneza, commonly the Defense. Among these challenges violated by the length of the trial itself. The referred to as the “Government II” case. were claims submitted by Bicamumpaka, trial commenced on November 6, 2003 and Each of the four accused held positions in Bizimungu, and Mugenzi that their right concluded on December 5, 2008, with the the government of Juvenal Habyarimana to be tried without undue delay had been Chamber sitting in session for 399 days. and, following his death, in the interim violated. The trial was among the longest Mugenzi argued that the length of proceed- government that ruled Rwanda between at the ICTR, with more than twelve years ings was a result of “the Tribunal’s failure April and July 1994. During the events passing between the arrest of the four sus- to prioritise this case, as well as numer- of the 1994 genocide, Bizimungu served pects and the delivery of the verdict. With ous adjournments and scheduling failures as Minister of Health, Mugenzi served respect to Bicamumpaka’s challenge, the that delayed the proceedings.” However, as Minister of Commerce, Bicamumpaka Chamber held that it had already dealt with while the Chamber recognized that the served as Minister of Foreign Affairs, the issue in dismissing a similar motion proceedings had been lengthy and that and Mugiraneza served as Minister of brought by the Bicamumpaka Defense there were “concerns that the conduct of Civil Service. Each was charged with nine seeking a stay of proceedings based on a the Tribunal, and the increased workload counts, namely: genocide; conspiracy to claim that the accused’s right to a speedy of the presiding judges more specifically, commit genocide; complicity in geno- trial had been violated. Similarly, the has contributed to this delay,” a majority cide; direct and public incitement to com- Chamber held that it would not reconsider of the Chamber rejected Mugenzi’s claim, mit genocide; murder as a crime against the claims of Bizimungu and Mugenzi that finding that the length of the proceed- humanity; extermination as a crime against their right to trial without undue delay had ings could primarily be attributed to size humanity; rape as a crime against human- been violated by the amount of time that and complexity of the case. Judge Emile ity; the war crime of violence to life, passed between the arrest of the accused Francis Short dissented from this finding, health and physical or mental well-being and the start of trial, as the Chamber had holding that the fact that the judgment was of persons; and outrages upon personal dismissed motions raising a similar claim not delivered until more than three years dignity as a war crime. The Chamber brought by each of these accused prior to after the close of evidence in the case was found Mugenzi and Mugiraneza guilty of the commencement of trial. Interestingly, sufficient to constitute a violation of the conspiring to commit genocide and direct the Chamber noted that it may reconsider

51 accused’s right to trial without undue delay. criminal responsibility pursuant to Article would allow for Sindikubwabo to publicly Judge Short would have taken five years 6 (3) of the Statute.” and ceremoniously air his inflammatory off the sentences given to Mugenzi and speech,” fostering a “context that would In terms of the charges upon which Mugiraneza in compensation for the viola- ensure that Sindikubwabo’s inciting mes- Mugenzi and Mugiraneza were convicted, tion of their rights and held further hear- sage would be understood,” and providing both related to the role of the two accused ings to determine the appropriate remedy “significant and substantial moral encour- in the removal of the Tutsi prefect of Butare for Bizimungu and Bicamumpaka. agement to Sindikubwabo as he incited the prefecture, Jean-Baptiste Habyarimana, killing of Tutsis.” Therefore, the Chamber Turning to the allegations against the on April 17, 1994, and his replacement concluded that Mugenzi and Mugiraneza accused, the Prosecution argued that each two days later. First, the Chamber deter- were guilty of direct and public incite- of the accused was responsible under both mined that, at least as early as April ment to commit genocide based on their Article 6(1) (direct responsibility) and 17, a joint criminal enterprise existed participation in a joint criminal enterprise. Article 6(3) (superior responsibility) of among several members of the Rwandan Based on these convictions, and taking the ICTR Statute based on specific events interim government, including Mugenzi, into account the gravity of the crimes and that allegedly supported the charges. In Mugiraneza, and Rwandan President aggravating and mitigating circumstances, addition, the Prosecutor argued in its clos- Théodore Sindikubwabo, the aim of which the Trial Chamber sentenced Mugenzi and ing submissions that each of the four was to kill Tutsis in Butare. In furtherance Mugiraneza to thirty years in prison. accused bore superior responsibility “for of this plan, the members of the enterprise the genocide as a whole,” claiming that agreed to remove Habyarimana from his Sofia Vivero, a J.D. candidate at the that the government ministers were “crimi- post “in order to undermine the real and American University Washington College nally liable for the acts perpetrated by symbolic resistance that he posed to the of Law, wrote this judgment summary a range of subordinates, including: the killing of Tutsis in Butare.” According for the Human Rights Brief. Katherine staff of their respective ministries, the to the Chamber, the decision to remove Anne Cleary, Assistant Director of the War [Forces Armées Rwandaises], the gendar- Habyarimana amounted to an agreement Crimes Research Office, edited this sum- merie, soldiers, prefects, prefects’ subor- to undertake a preparatory act that, while mary for the Human Rights Brief. dinates, bourgmestres, communal police, preceding the physical perpetration of conseillers, local authorities, civic leaders, genocide, was “clearly aimed at” further- Yussuf Munyakazi v. The militias, Interahamwe, ‘the killers’, civil- ing genocide. Furthermore, the Chamber Prosecutor, Appeals Judgment, ians and ‘the Hutu population through- determined that both Mugenzi and Case No. ICTR-97-36A-A out Rwanda.’” Notably, the Tribunal has Mugiraneza “possessed genocidal intent previously held that “general statements when agreeing to remove Habyarimana.” On September 28, 2011, the Appeals of the situation in Rwanda in April 1994 Thus, the Chamber held, Mugenzi and Chamber of the International Criminal may be illustrative as to the background Mugiraneza were guilty of conspiracy to Tribunal for Rwanda (ICTR) issued of the case, but they are not suited to commit genocide. Second, the Chamber its judgment in the case against Yussuf prove the individual guilt of the Accused.” determined that, two days after the Munyakazi. The Trial Chamber convicted Nevertheless, the Prosecutor asked the removal of Habyarimana, President Munyakazi for committing genocide and Chamber to “break new ground” by find- Sindikubwabo delivered an inflamma- extermination as a crime against human- ing that an accused’s “charismatic power tory speech at the ceremony inaugurating ity based on his participation in attacks over [a] population based on the his- Habyarimana’s replacement that amounted on the parishes of Shangi and Mibilizi in tory and sociological make-up of that to direct and public incitement to geno- April 1994, which resulted in the deaths community” can satisfy the requirement cide. Specifically, the Chamber deter- of more than 5,000 Tutsi civilians. He was of a superior-subordinate relationship. mined that Sindikubwabo’s speech “was sentenced to a single term of twenty-five Specifically, in this case, the Prosecutor a direct call for those in Butare to engage years of imprisonment. In its opinion, argued that the Chamber should consider in the killing of Tutsi civilians,” delivered the Appeals Chamber dismissed each of “the manner in which [the Accused] were to a public audience, and that he made Munyakazi’s eight grounds of appeal, as perceived by society as Ministers, and the his remarks with genocidal intent. The well as the Prosecutor’s three grounds of power of influence they commanded” in Chamber then concluded that the speech appeal, and confirmed the Trial Chamber’s determining whether they had a superior was made “in furtherance of the criminal judgment and sentence. relationship over the various groups of per- purpose” of the joint criminal enterprise As a general matter, questions pertain- sons responsible for carrying out genocidal to kill Tutsis in Butare. The Chamber ing to the assessment of evidence played acts throughout the country. However, the found that Mugenzi and Mugiraneza a significant part in the Chamber’s judg- Trial Chamber rejected this allegation, shared President Sindikubwabo’s geno- ment. When addressing alleged errors in noting that the Prosecution did not “link cidal intent, as demonstrated by their the assessment of evidence, the Appeals its theory to any specific, proven events involvement in the decision to remove Chamber stressed that the Trial Chamber is in this case,” but rather presented “vague Habyarimana and their presence at the endowed with broad discretion to evaluate arguments” and evidence that was “general inaugural ceremony on April 19. Finally, inconsistencies arising within or among in nature,” which the Chamber determined the Chamber concluded that Mugenzi witnesses’ testimonies and to consider to be “wholly insufficient to establish the and Mugiraneza “substantially and sig- whether the evidence is credible taken as rigorous requirements necessary to impose nificantly contributed” to Sindikubwabo’s a whole. Furthermore, when evaluating incitement by “creat[ing] a scenario that inconsistent accounts, the Trial Chamber

52 retains discretion to express a preference proving an alibi beyond a reasonable doubt; relating to the Trial Chamber’s discretion in for, and rely on, what it determines to rather, when the defense of alibi is raised, assessing evidence. be the most credible testimony, or piece the Prosecution must establish the allega- Yet another challenge brought by of testimony. The Appeals Chamber also tions against the accused beyond a reason- Munyakazi was that the Trial Chamber recalled that, consistent with its prior juris- able doubt despite the alibi. Nevertheless, erred in finding that he acted with the prudence, the Trial Chamber may find that the Appeals Chamber noted that the Trial requisite intent to convict him of geno- one witness’s testimony has been satisfac- Chamber has the right to require corrobo- cide and the crime against humanity of torily corroborated by the testimony of a ration of any evidence, and held that, in extermination. According to Munyakazi, second witness, even where some discrep- this case, “ it was not unreasonable for the the Chamber had no legal or factual basis ancies exist between the two testimonies. Trial Chamber to question the credibility for its findings of intent, and the Chamber Thus, for instance, the Appeals Chamber of Munyakazi’s alibi in the absence of cor- erred by failing to find that Munyakazi found no error in the Trial Chamber’s deci- roboration given the inherent self-interest had formed the intent to commit genocide sion to discount minor variances between of his testimony and the introduction of the prior to the occurrence of the attacks. In its the testimony of two witnesses, such as the alibi at the close of the case.” judgment, the Trial Chamber recognized gender of certain militia members, noting The Defense also challenged the that it “had very little direct evidence of that such discrepancies are not unexpected validity of the Trial Chamber’s finding Munyakazi’s intent” with regard to the in the given context, particularly due to the that Munyakazi was responsible for the acts carried out at the parishes and “no witnesses’ varying vantage points. The fact attacks at the Shangi and Mibilzi par- evidence of his personal views regarding that the testimonies were consistent on key ishes based on his role as a “leader of the Tutsis.” However, citing to Munyakazi’s details, such as the date and timeframe of attacks who exercised de facto author- statement to the Tutsi refugees at Mibilizi the attack, Munyakazi’s participation, and ity over the Bugarama Interahamwe” that parish that they “were going to pay” for the general tenor of the events, was deemed physically carried out the attacks. In par- killing the head of state, and stressing the sufficient to support the Chamber’s finding ticular, Munyakazi challenged the Trial “nature and scope of the crimes” commit- that the witnesses were credible. Chamber’s finding that he had sufficient ted at both parishes, the Trial Chamber Among Munyakazi’s unsuccessful notice that the Prosecution was alleging he inferred that Munyakazi acted with the grounds of appeal was a claim that the Trial held a leadership role during the attacks. requisite genocidal intent and with knowl- Chamber erred in its assessment of his In reviewing the indictment, the Appeals edge that the attacks formed part of a alibi. Specifically, Munyakazi argued that: Chamber noted that paragraph 1 alleged widespread and systematic attack on Tutsi (i) the Chamber inappropriately considered that, during the entire period covered by civilians. The Appeals Chamber found no the fact that Munyakazi did not provide the indictment, Munyakazi was “a leader error in the Trial Chamber’s approach, notice of his intent to rely on an alibi in with de facto authority over the Bugarama noting that an accused’s genocidal intent assessing the reliability of the alibi; and MRND Interahamwe militia,” and that “may be inferred from circumstantial evi- (ii) the Chamber improperly reversed the paragraphs 13 and 14 Munyakazi, “with dence, including his active participation burden of proof by faulting the Defense for the Bugarama Interahamwe, attacked and in an attack.” In fact, despite Munyakazi’s adducing no evidence to support the alibi killed” Tutsi civilians at the two parishes. argument to the contrary, the Appeals other than the testimony of the accused, However, there was no specific allegation Chamber reiterated earlier jurisprudence which the Chamber found to be unreli- supporting the Trial Chamber’s ultimate holding that “[t]he inquiry is not whether able. As to the first issue, the Appeals finding that Munyakazi committed the the specific intent was formed prior to the Chamber first recalled that Rule 67(A)(ii) crimes at Shangi and Mibilizi parishes commission of the acts, but whether at the (a) of the ICTR’s Rules of Evidence and “[o]n the basis of his leadership posi- moment of commission the perpetrators Procedure requires the Defense to notify tion at the crime sites.” Nevertheless, the possessed the necessary intent.” the Prosecution before the commencement Appeals Chamber determined that the Lastly, the Appeals Chamber dismissed of trial of its intent to enter a defense of “more general allegations” in paragraphs Munyakazi’s challenge to his sentence, alibi. Furthermore, the Appeals Chamber 13 and 14 must be read “in light of para- upholding the Trial Chamber’s finding that recalled its earlier jurisprudence in which graph 1,” which alleges Munyakazi’s role the abuse of a position of influence and it held that the Trial Chamber may con- as the leader over the Interahamwe, and authority in a given case may be counted sider the circumstances in which an alibi that therefore, the indictment provided as an aggravating factor in sentencing was presented in weighing its credibility. the accused with sufficient notice that he and deferring to the Trial Chamber’s Thus, the Appeals Chamber found no could be held responsible for the attacks broad discretion to dismiss or to take into error in the Trial Chamber’s holding that, on the parishes based on his leadership role account mitigating circumstances raised while the Defense’s failure to provide over the militia members that carried out by the Defense. Furthermore, the Appeals advance notice of its alibi was not “dis- the attacks. Munyakazi also challenged the Chamber held that the fact that Trial positive,” the lack of notice, and indeed Trial Chamber’s assessment of the evidence Chamber did not expressly discuss some the fact that the alibi was not presented presented in support of the Prosecution’s mitigating circumstances raised by the until Munyakazi took the stand as the final claim that Munyakazi acted as a leader Defense, namely that Munyakazi provided witness for the Defense, affected the cred- over those who carried out the attacks on assistance to several Tutsi friends during ibility of the alibi. On the second issue, the the Shangi and Mibilizi parishes, but the the genocide, is not relevant because a Appeals Chamber began by reiterating that Appeals Chamber dismissed this challenge, Trial Chamber is not required to expressly the accused does not bear the burden of relying on the principles described above address every piece of presented evidence, 53 and moreover possesses broad discretion Ephrem Setako v. The Prosecutor, a discernible error resulting in prejudice to to determine the weight of such evidence. Appeals Judgment, Case No. that party. Here, the Appeals Chamber held The Appeals Chamber also rejected the ICTR-04-81-A that Setako failed to make such a demon- Prosecution’s request that the sentence be On September 28, 2011 the Appeals stration, particularly in light of the fact increased to life imprisonment, and thus Chamber of the International Criminal that the Trial Chamber did not grant the affirmed the Trial Chamber’s sentence of Tribunal for Rwanda (ICTR) issued its Prosecution’s request for leave to amend twenty-five years imprisonment. judgment in the case against Ephrem the indictment in its entirety. Indeed, the Trial Chamber rejected several proposed Interestingly, Judge Liu attached a Setako, who served as head of the legal amendments on the ground that they would separate opinion to the judgment in which affairs division of the Rwandan Ministry give the Prosecution an “unfair tactical he discusses the Trial Chamber’s holding of Defence during the 1994 genocide. advantage” given the late stage of the pro- that Munyakazi’s role in the attacks on At trial, all of the charges against Setako ceedings. Instead, the Trial Chamber only the two parishes amounted to “commis- related to his alleged role in ordering permitted those amendments that would sion” of the charged crimes under Article the killing of Tutsis at the Mukamira enhance the fairness of the trial, such as 6(1) of the ICTR Statute, a holding that military camp on two separate occasions, those aimed at “better articulating [the was not challenged on appeal. As Judge namely on April 25, 1994 and on May 11, Prosecution’s] theories of criminal respon- Liu recognized, the ICTR first adopted an 1994. The Trial Chamber of the ICTR had sibility, removing any factual allegations it expanded interpretation of “commission” sentenced Setako to twenty-five years of no longer wishes to pursue, and correcting as a mode of liability in the Gacumbitsi imprisonment upon convictions for geno- or supplementing with additional detail case, in which the Appeals Chamber held cide in relation to both sets of killings; any of the existing factual allegations.” that, in the context of genocide, a person extermination as a crime against humanity need not physically perpetrate the actus in relation to the April 25 killings; and Another of Setako’s unsuccessful reus or participate in a joint criminal violence to life, health and physical or grounds of appeal was a claim that the enterprise aimed at carrying out genocide mental well-being of persons (murder) as Trail Chamber erred in finding two of the to be held responsible for “committing” a serious violation of Article 3 common to Prosecution’s witnesses, who were “insider genocide, but rather may be found to the Geneva Conventions and of Additional witnesses,” credible. Setako raised a num- have “committed” the crime by performing Protocol II in relation to the April 25 kill- ber of challenges to the credibility of the other acts, such as directing or supervis- ings. On appeal, the Appeals Chamber witnesses, including the fact that, prior to ing killings. This expanded understanding affirmed the Trial Chamber’s judgment, being investigated by ICTR authorities, of “committing” was later applied to the and convicted Setako of an additional the witnesses had both provided confes- crime against humanity of extermination. count of murder in violation of Article 3 sions to Rwandan national authorities in While Judge Liu acknowledged that this of the Geneva Conventions based on the which they made no mention of the crimes interpretation could now be considered May 11 killings. Despite the additional in which they later implicated Setako. settled jurisprudence of the Tribunal, he conviction, however, the Chamber did Setako argued that the Trial Chamber failed nevertheless wrote to express concern that, not increase the original twenty-five year to adequately explain these omissions, cit- by subsuming and conflating the various sentence imposed on Setako. ing to Rwandan Organic Law 8/96, which modes of individual criminal responsibil- Setako raised several unsuccessful requires that a person making a confession ity outlined in Article 6(1) of the Statute — grounds of appeal, including a claim that to Rwandan judicial authorities provide namely, committing, planning, ordering, he had been denied a right to a fair information about all of the suspect’s crimes instigating, and otherwise aiding and abet- trial. Specifically, Setako challenged the and co-perpetrators. The Appeals Chamber ting — the expanded definition “creates fact that the Trial Chamber granted the began its assessment of Setako’s claim by considerable ambiguity as to the scope of Prosecutor leave to amend the indictment noting that the credibility of a witness will a convicted person’s criminal responsibil- more than three years after the initial depend on a variety of factors and must ity,” which in turn may “run contrary to indictment had been issued, claiming that be evaluated in the context of all of the basic principles of fairness.” Judge Liu the amended indictment significantly evidence on the record. In the present case, also noted that the broad interpretation of expanded the case against the accused the Appeals Chamber determined that the “committing” “uncannily resembles joint and thus deprived him of his rights to be Trial Chamber “reasonably considered” all criminal enterprise, without requiring the tried without undue delay and to have of the relevant factors, including the fact satisfaction of [the latter’s] more stringent adequate time and facilities to prepare his that neither of the two witnesses had been pleading criteria.” defense. In response, the Appeals Chamber charged by Rwandan authorities with the particular crimes in which they later impli- Andra Nicolescu, a J.D. candidate at the began by recalling that the Trial Chamber cated Setako, making it unlikely that they American University Washington College enjoys considerable discretion in determin- would voluntarily inform those authorities of Law, wrote this judgment summary ing the conduct of trial proceedings, which that they had in fact participated in the for the Human Rights Brief. Katherine includes determining whether to grant the crimes. With regard to Rwandan Organic Anne Cleary, Assistant Director of the War Prosecutor leave to amend an indictment. Law 8/96, the Appeals Chamber noted that Crimes Research Office, edited this sum- While the Trial Chamber must safeguard Setako had not raised this law before the mary for the Human Rights Brief. the accused’s right to a fair and expedi- tious trial, a discretionary decision of the Trial Chamber, but rather cited to it for the Chamber will not be overturned on appeal first time on appeal, and thus the Defense unless the challenging party demonstrates could not fault the Trial Chamber for

54 failing to address the law in its assessment a war crime. After reiterating its earlier The Prosecution also contended on of the witnesses’ credibility. dismissal of Setako’s challenge to the Trial appeal that the Trial Chamber erred when Chamber’s finding that he ordered the it did not address the defendant’s respon- One ground of appeal raised by Setako May 11 killings, and determining that the sibility for the charged crimes under both that was successful involved a challenge to victims of the killings could not be consid- Article 6(1) (direct responsibility) and the Trial Chamber’s decision to take judi- ered to have been taking an active part in Article 6(3) (superior responsibility) of the cial notice of a certain fact determined by hostilities at the time of their murder, the Statute. Specifically, the Trial Chamber the Trial Chamber in the Bagosora, et al. Appeals Chamber, by majority, held that determined that, because it found that trial, a case that was on appeal at the time Setako was in fact guilty of murder as a Setako was guilty under Article 6(1) of the of the Setako Trial Chamber’s judgment. war crime based on the incident. While Statute, it did not need to address Setako’s Pursuant to Rule 94(B) of the ICTR’s Judge Pocar agreed with the majority that liability under Article 6(3), holding that Rules of Procedure and Evidence, a Trial the Trial Chamber erred by failing to con- Setako could not be convicted under both Chamber may “decide to take judicial vict Setako of the charge, he nevertheless provisions based on the same set of facts. notice of adjudicated facts or documentary dissented from the majority’s holding on While the Appeals Chamber affirmed that evidence from other proceedings of the the ground that he does not believe that the Trial Chamber could not enter separate Tribunal relating to the matter at issue in the Appeals Chamber has the authority to convictions against Setako on the basis the current proceedings.” However, Rule enter a new conviction on appeal. As he of more than one theory of liability, it 94(B) expressly requires that the Trial has argued in dissenting opinions issued in held that the Trial Chamber should have Chamber take judicial notice of a fact or previous cases, Judge Pocar stressed that considered whether Setako bore respon- evidence from other proceedings only “after Article 24(2) of the ICTR Statute requires sibility under Article 6(3) for purposes of hearing the parties.” Furthermore, as estab- that the Chamber apply fundamental prin- sentencing. The Appeals Chamber went lished in prior jurisprudence of the ICTR, ciples of international human rights law, on to make the determination itself and the reference to “adjudicated” facts in Rule including those found in the International held that the Prosecution had failed to 94(B) means that the relevant fact must have Covenant on Civil and Political Rights of establish beyond a reasonable doubt that been determined in a final judgment. Here, 1966 (ICCPR). Because Article 14(5) of Setako exercised effective control over the the Appeals Chamber determined that the the ICCPR states that “[e]veryone con- individuals who carried out the killings at Trial Chamber erred by judicially noticing a victed of a crime shall have the right to his the Mukamira military camp, and thus held fact from the Bagosora, et al. Trial Chamber conviction and sentence being reviewed by that he did not bear superior responsibility judgment without hearing from the parties a higher tribunal according to law,” Judge for the charged crimes. and while the judgment was pending appeal. Pocar argued that an accused must have a Nevertheless, the Appeals Chamber deter- Finally, the Appeals Chamber addressed right to appeal any conviction entered by mined that the fact that was judicially noticed the appropriateness of the Trial Chamber’s the Tribunal, a right that is denied when the was otherwise supported by documentary sentence, holding that although the Appeals Appeals Chamber enters a new conviction evidence entered into the record during Chamber had entered an additional convic- on appeal. In Judge Pocar’s opinion, the Setako’s trial, and thus did not invalidate the tion against Setako for murder as a war Appeals Chamber should have either found conclusions of the Trial Chamber. crime, this finding did not warrant an that the Trial Chamber erred in relation to increase in Setako’s sentence because the Among the grounds of appeal raised the charge of murder as a war crime and Trial Chamber had “decided on Setako’s by the Prosecutor was a challenge to the remitted the case to the Trial Chamber to sentence based on a full picture of the Trial Chamber’s failure to convict Setako rectify the error, or simply entered its find- proven material allegations against him.” of the war crime of murder in relation ing regarding the Trial Chamber’s error in to a number of killings that occurred on order to correct the record, but decline to Danielle Dean, a J.D. candidate at the May 11, 1994 at the Mukamira military remit the case to the Trial Chamber in light American University Washington College camp. Notably, the Trial Chamber had of efficiency concerns. The latter approach of Law, wrote this judgment summary determined that Setako was responsible might be particularly warranted in the for the Human Rights Brief. Katherine for these killings in support of its find- present case, in Judge Pocar’s opinion, Anne Cleary, Assistant Director of the War ing that Setako was guilty of genocide, given that the Appeals Chamber deter- Crimes Research Office, edited this sum- but the Chamber made no finding with mined that the additional conviction did mary for the Human Rights Brief. respect to the Prosecution’s allegation that not affect the accused’s sentence. these killings also amounted to murder as

No Refuge: the Quandary of community do with persons acquitted by profiles and the possibility of persecu- Resettling Suspects Acquitted the ICTR? In “Government II,” the ICTR tion, and they will have to go through by the ICTR tried four former ministers of the interim the difficult process of seeking resettle- government established in Rwanda after ment in another country. The ICTR has The International Criminal Tribunal the assassination of President Juvénal acquitted ten accused persons, and only for Rwanda (ICTR) rendered judgment in Habyarimana. Two of the four were acquit- five have managed to find a host coun- the high profile “Government II” case on ted for lack of sufficient proof of involve- try. André Ntagerura has unsuccessfully September 30, 2011, and with it brought ment. Returning to Rwanda is an unlikely sought a host country since his acquittal in a persistently pressing matter back to option for these men because of their high 2004. The plight of Ntagerura and others the fore: what should the international 55 demonstrates the need for the international effectively remove the “serious reasons for the right to complain about conditions to the community to put its weight behind the concern” mentioned in Article 1(F). Yet Chief of Detention and the Registrar of the tribunal’s verdicts and treat the resettle- refugee or not, the problem of finding a SCSL. Although the prisoners have alleged ment of persons acquitted by international country to accept the acquitted persons still that they did not receive proper nutrition tribunals as a contemporaneous duty to the remains. or medical attention, a committee from the establishment of the ad hoc tribunals. SCSL did not find sufficient evidence to In June 2011, outgoing ICTR President warrant transfer to another country. Outgoing ICTR President Judge Khan, with the support of the UNHCR, Khalida Rachid Khan sees the resettlement appealed to the UN Security Council to The SCSL does not have the capac- of persons acquitted by the tribunal as a form a solution. The Security Council ity to house detainees after they have “fundamental expression of the Rule of responded positively to President Khan’s been convicted, and has therefore made Law,” guaranteeing acquitted individuals request, adopting Resolution 2029 on agreements with Finland, Sweden, the the right to live, including full enjoyment December 21, 2011, requesting that mem- United Kingdom, and Rwanda for pris- of education, employment, and family. ber states “cooperate with and render all oners to serve their sentences in those Judge Khan has repeatedly implored the necessary assistance to the International countries. Having been convicted by the UN Security Council to aid in finding a Tribunal in the relocation of acquitted SCSL, the prisoners are subject to the suitable solution to the problem of resettle- persons.” Under Article 25 of the Charter SCSL Rules of Detention while they serve ment. In a 2008 report highlighting reloca- of the United Nations, member states must their sentences in the host country. The tion challenges, the ICTR noted that the “agree to accept and carry out” decisions Amended Agreement between the SCSL effectiveness of ad hoc tribunals will be of the Security Council, and such decisions and the Government of Rwanda states seriously challenged if member states do are binding when made under Chapter VII that the “conditions of imprisonment shall not demonstrate support in such efforts. of the Charter, as was Resolution 2029. be consistent with the widely accepted It is now up to the member states and the international standards governing treat- Public response in Rwanda to the acquit- ICTR to build a formal mechanism. Five ment of prisoners,” and the International tal of high profile individuals “convicted” in acquitted persons remain in Arusha under Committee of the Red Cross (ICRC) the court of public opinion is typically not the protection of the ICTR, and unless will inspect the conditions of detention positive. Thus, acquitted persons reside in a solution appears soon, the Residual to ensure that standards are being met. temporary safe houses in Arusha, Tanzania. Mechanism will inherit the challenge of International standards require that the Many UN member states have the ability finding host countries when it takes over dignity of personhood of all detainees be to provide a safe alternative, and several for the ICTR in July 2012. respected and that all basic needs, such as have, but the majority show reluctance to health, security and privacy are met in a work with the ICTR. This is due, in part, to Benjamin Watson, a J.D. candidate reasonable fashion. These needs are judged the lack of any formal mechanism for such at the American University Washington in part by medical officers who advice the relocations. Article 28 of the ICTR Statute College of Law, covers the Ad Hoc Chief of Detention. governs cooperation with member states, Tribunals for the Human Rights Brief. but focuses primarily on the identification, Under the Practice Direction for testimony, service, arrest, detention, and Designation of State for Enforcement of Internationalized Tribunals transfer of suspects to the ICTR, and does Sentence, once the SCSL has finalized a not mandate cooperation with requests for sentence, the President of the Court decides the resettlement of acquitted persons. The Prisoners of the Special Court for where the convict is sent. Rwanda’s com- ICTR has thus relied on its registrar to coor- Sierra Leone Allege Mistreatment mitment to take convicted persons from the dinate these relocations, with mixed success in Rwanda Prison SCSL became part of Rwandan law, which after protracted bilateral negotiations. So far Despite complaints of mistreatment from requires that the detention centers maintain France has accepted two acquitted persons, the prisoners themselves, the Special Court a standard comparable to the requirements while Belgium, Switzerland, and Italy have for Sierra Leone (SCSL) recently found that of the SCSL. However, prison conditions each accepted one. the eight men currently serving sentences throughout Rwanda have historically been in Rwanda for crimes against humanity are criticized, due to concerns of overcrowding, In the past, the United Nations High being treated fairly and according to inter- poor medical care, and physical. Because Commissioner on Refugees (UNHCR) national standards. The SCSL was estab- Rwandan law requires less stringent prison has expressed reservations about granting lished in July 2002 to adjudicate war crimes conditions, there is concern that the pris- refugee status to acquitted persons, point- and crimes against humanity committed oners of the SCSL in Rwanda are being ing to Article 1(F) of the 1951 Refugee during the civil war in Sierra Leone. The denied their rights to adequate standards Convention that prohibits refugee status if Appeal Chamber sentenced Allieu Kondewa of detention under the SCSL Rules of “there are serious reasons for considering and Moinina Fofana in 2008 and RUF Detention and customary international that...[one] has committed a crime against leaders Issa Hassan Sesay, Morris Kallon, law. However, the Commissioner General peace, a war crime, or a crime against and Augustine Gbao in 2009, to prison of Rwandan Correctional Services stated humanity….” However, the UNHCR notes sentences in Rwanda. Following custom- that the SCSL prisoners are given special that because acquitted persons fear persecu- ary international standards and complaint treatment in Rwandan prisons and after tion in Rwanda as a result of their acquittal, review, Rule 39 of the Rules of Detention a committee from the SCSL visited the they require refugee status. Furthermore, for the SCSL entitles detainees to medical prison in Rwanda and reported back to the an acquittal by an ad hoc tribunal may services, adequate food, family visits, and court, the SCSL stated that the prisoners 56 were being treated in accordance with abstentia is appropriate at this time. The being issued on July 8, 2011, the defen- international standards. defendants were indicted in June 2011, dants failed to appear before the court. but as of February 2012, none of the four In September, the pre-trial court initi- Based on the report issued by the SCSL accused of assassinating former Lebanese ated proceedings to seize the trial court in January 2012, it seems unlikely that Prime Minister Rafik Hariri had appeared to determine if a trial in absentia could the prisoners will be removed to another before the court. Because trials in absentia proceed. However, the prosecution filed a country. Given the difference in prison are a controversial concept, as the STL motion that was granted requesting a delay conditions between Rwanda and prisons in begins its proceedings, it will have to bal- in the proceedings because all reasonable Finland, Sweden, and the United Kingdom, ance the need for efficient justice with the measures to secure the defendants under it is understandable that the prisoners rights of the accused for a fair trial under Rule 106 have not been completed. The would want to be transferred to one of the International Covenant on Civil and prosecution cited a lack of cooperation the European countries known for better Political Rights (ICCPR), Article 14(3)(d). between the trial court and the Lebanese health care and more humane prison con- authorities who could do more to search ditions. Furthermore, the prisoners’ wives Trials in absentia are controversial for and arrest the defendants. However, could seek asylum in the European host because they seem to violate the due pro- on February 1, 2012, the Trial Chamber country under European asylum laws to cess rights guaranteed in Article 14(3)(d) ordered the commencement of a trial in be near their husbands. While the SCSL of the International Covenant on Civil and absentia against the four accused to start prisoners’ complaints may put a spotlight Political Rights, which ensures the right of this year. If the four accused are found on the Rwandan prison system, allegations a defendant “to be tried in his presence.” guilty, they may accept the verdict of the of overcrowding and human rights abuses Despite this discord with the ICCPR, trial in absentia, accept the verdict and have long plagued the Rwandan prison many countries, such as the United States, request a hearing on some aspect of the system. However, with the SCSL report France and Italy, allow for partial trials in case, or request a new trial. stating no findings of abuse, it is unlikely abstentia if the accused is aware of and that the prisoners will be moved to Europe. present for the initial hearing of the trial. While in theory an apolitical tribunal, The validity of a trial in abstentia rests on the STL is in a tenuous position given Prisoners’ rights are an important the guarantee that the defendant has the the current political situation in Lebanon. aspect of international justice because the same rights during the trial as if he were As the three-year mandate of the tribunal humane treatment of detainees and con- present, and that he is made aware of the draws to a close and Hezbollah gains victs legitimizes an international court’s initial proceedings and indictment. The political support throughout the country, ability to adjudicate human rights abuses. European Court of Human Rights allows in part by promising to defund the STL, However, determining what constitutes trials in absentia provided that a retrial is issuing a ruling to authorize a trial in fair treatment is challenging when prison permitted if the defendant chooses, except absentia may add fuel to the fire and cre- conditions among different countries vary if the defendant waived his right to be pres- ate increased resentment against the tri- widely. As the SCSL has agreements with ent and had his chosen counsel appear on bunal. Furthermore, the validity of a trial both European and African nations to host his behalf. in absentia must be questioned. While the prisoners, prisoners understandably prefer indictments of the four accused have been sentences in European countries with bet- Unlike in the United States, the STL published throughout Lebanon and the ter prison facilities. However, there is a can hold trials completely in absentia world, it is possible that the suspects are so limited amount the SCSL can do without under Article 22 of the Statute of the STL well hidden that they have not heard of the clear evidence of prisoner abuse and viola- and Rules of Procedure and Evidence indictments, in which case commencing tions of international standards. 105 and 106. A trial in abstentia shall be with a trial against them could violate their conducted in the STL if the defendant has rights under the ICCPR. On the other hand, waived his right to be present, has not been Trials In Absentia in the Special if the TIMES article is true, the rights handed over to the STL, or has absconded Tribunal for Lebanon of the victims to have their day in court and the court has taken all “reasonable against the accused should not be denied For the first time since the Nuremburg precautions” such as coordinating with simply because the controlling political trial in abstentia of Martin Bormann in Lebanese authorities. Rule 105 bis (A) party in Lebanon wishes to avoid it. In the 1946, an internationalized court, namely allows the pre-trial court to initiate a trial end, effective international justice should the Special Tribunal for Lebanon (STL), in abstentia if the defendants have not rise above the political concerns of a state. has initiated a trial completely in absten- communicated with the court thirty days tia. In the case of The Prosecutor v. Salim after the indictment. Michelle Flash, a J.D. candidate at the Jamil Ayyash, Mustafa Amine Badreddine, American University Washington College The STL issued the indictment in Hussein Hassan Oneissi, and Assad of Law, covers the Internationalized Prosecutor v. Salim Jamil Ayyash, et al. Hassan Sabra, the pre-trial court seized the Tribunals for the Human Rights Brief. trial chamber and determined that a trial in on June 28, 2011. Despite arrest warrants

57 Updates from Regional Human Rights Systems

Inter-American System The development of the Unit is part of a even amidst discrimination and conserva- larger LGBTI advocacy movement within tive social beliefs. The Unit’s increases the Inter-American System Enhances Latin America. In July 2010, Argentina capacity of the Commission to protect vul- Monitoring of Lesbian, Gay, became the first Latin American coun- nerable people throughout the Americas Transgender, and Intersex Persons try to legalize same-sex marriage and by focusing attention and resources on adoption nationwide. In November 2011, LGBTI rights, and will likely be followed In November 2011, the Inter-American Ecuador’s Ministry of Health closed by the creation of a rapporteurship. Commission on Human Rights (IACHR, approximately thirty clinics claiming to Commission) created a Unit on the Rights “cure homosexuality.” of Lesbian, Gay, Transgender and Intersex Conditions Improve at Brazilian Persons (Unit) to improve its ability to Despite these advancements, LGBTI Prison; Court Lifts Provisional protect the rights of lesbian, gay, transgen- individuals still struggle with a culture Measures der, and intersex (LGBTI) individuals. The that is slow to change and hesitant to In August 2011, the Inter-American IACHR will evaluate the Unit’s work after recognize LGBTI-identified people equal Court of Human Rights (IACtHR, Court) a year and determine whether to create rights. Additionally, many Latin American lifted provisional measures it had issued a rapporteur on LGBTI rights. The Unit leaders balk at passing strong legislation in response to continuous acts of violence was created after the Commission held a protecting LGBTI rights, and often avoid perpetrated by both guards and inmates hearing focusing on the lack of protec- prosecuting crimes against the LGBTI at Urso Branco prison in Brazil. The tion of the LGBTI community throughout community as hate crimes due to their improvement in conditions at Urso Branco, the Americas and states’ failures to pros- conservative cultural backgrounds. and the Court’s subsequent lifting of the ecute hate crimes against LGBTI persons. The Unit forms part of the Commission’s provisional measures, are an indication Article 1 of the American Convention plan of action to enhance protection of that the Court can effect change outside on Human Rights requires signatories to LGBTI rights in the region, and will hope- the traditional adversarial process. Despite respect the rights of all persons without fully counter the pervasive anti-LGBTI advancements at Urso Branco, however, discrimination, and Article 24 guarantees sentiment throughout the Americas. One the Court issued additional provisional all people equal protection. of the Unit’s tasks will be to document measures in December 2010 in response In establishing the Unit, the Commission sexual orientation and gender identity- to injuries at Unidade de Internação cited the legal discrimination and physi- derived human rights issues and make Socioeducativa (UNIS, Socio-Educational cal violence suffered by LGBTI-identified recommendations on public policy, legisla- Internment Facility), a correctional facility people in the Americas. The Commission tion, and judicial interpretation. Additional in Brazil for children and adolescents, has addressed these human rights viola- responsibilities include ensuring priori- which indicates the continued need for tions using precautionary measures, hear- tization of discrimination cases against systemic prison reform throughout the ings, and other promotional activities. For LGBTI persons and further developing the country. example, in an April 2011 hearing, the Organization of American States General Article 63.2 of the American Convention Commission heard from petitioners on Assembly’s resolutions pertaining to on Human Rights (American Convention) the situation of the LGBTI community in LGBTI rights. grants the Court authority to implement Haiti after the earthquake. The petitioners Although many human rights organi- provisional measures in cases of extreme explained that in times of chaos, violence zations such as the International Gay and gravity and urgency to prevent irreparable against the LGBTI community increases; in Lesbian Human Rights Commission cel- damage to individuals. Provisional mea- fact, claims that the earthquake was Haiti’s ebrate the creation of the Unit, it has also sures can be issued either upon submission punishment for allowing the presence of been met with some criticism from conser- of a case by the Inter-American Commission LGBTI persons are a common justification vative commentators. Professor Ligia M. on Human Rights (IACHR, Commission) for renewed violence. In September 2010, De Jesus of the Ave Maria School of Law to the Court, or when the Commission the Commission found that Chile had dis- claims that the Unit is an indication that itself requests them. The Court’s provisional criminated against a lesbian mother on the “activists, rather than jurists” control the measures are binding on Brazil because it basis of her sexual orientation and referred Commission. Others who have chosen to has ratified the American Convention and her case to the Inter-American Court of remain anonymous claim that by protecting recognized the jurisdiction of the Court. Human Rights (IACtHR, Court).The Court the rights of certain groups, the Commission Articles 4 and 5 require Brazil to profound that Chile had violated her rights is failing to protect other groups. tect individuals’ rights to life and humane to equal protection under the law (Article treatment. 24), privacy (Article 11), and her right to The Commission’s creation of the Unit a family (Article 17) when it denied her on the Rights of LGBTI persons is an indi- The Inter-American System has custody of her children based on her sexual cation that LGBTI rights are gaining more addressed poor conditions at prisons and orientation. attention and protection in Latin America, juvenile detention centers in Brazil through

58 reports, hearings, court decisions, and pro- a professional training program for the comes only four years after the ECtHR visional measures since at least 1995. inmates. concluded that a couple had the right to the Violence and riots are not uncommon in procedure when the man was in prison. The Before lifting the provisional measures, Brazilian prisons. For example, in 2007, Grand Chamber’s decision in S.H. v. Austria, federal and state authorities signed an Sao Paolo’s most powerful criminal gang however, was not based solely on prec- agreement with the prisoners’ representa- attacked prison staff and police officers in edent or the specifics of Austria’s governing tives detailing plans for the improvement retaliation for the death of 111 prisoners statute, but sought to discern how fertility of Urso Branco. Brazil agreed to continue who had died when a prison riot was sup- treatment fit within Article 8 (respect for improvements in five areas: prison infra- pressed in 1992. In November 2010, eigh- private and family life) of the European structure, enhanced training for prison per- teen prisoners were killed in two separate Convention on Human Rights (ECHR). sonnel, investigations into prison deaths, riots in northeastern Brazil over access to improvement of social inclusion resources, There are varying methods of concep- water and the rate at which their criminal and finally, research into methods used to tion outside of copulation, and Austria’s cases are reviewed. combat violent prison culture. law does not ban all forms. The country In response to a fatal prison upris- specifically bans in vitro fertilization — Despite improvements after the Urso ing on the night of January 1, 2002, the conception outside of the female’s body — Branco violence, recent violence at UNIS Commission requested that provisional involving third parties, that is, where either is evidence that Brazilian prison conditions measures be issued to protect the inmates the ovum and sperm do not come from continue to be a problem. On January 31, at Urso Branco prison. During the uprising, the involved couple, who must be married 2011, UNIS agents entered the facility prison guards allowed inmates to attack or in a similar situation. Under extreme after an escape attempt, and in the ensu- each other until an assault team entered circumstances, such as where the involved ing confrontation between the agents and the prison the next morning to quell the male is sterile, donor sperm can be used, the juveniles, five juveniles were injured. riot. There were between twenty-seven and but it must be implanted in vivo, mean- On February 25, 2011, the Court imple- forty-five casualties. The Court ordered the ing the fertilization happens inside the mented provisional measures to protect state to take all measures necessary to pro- woman’s body. By contrast, donor ovum UNIS inmates, requiring that Brazil effec- tect the lives of the Urso Branco inmates, can never be used for in vivo fertilization. tively protect the life and personal integrity investigate the circumstances of the upris- of the youths in the detention center, and S.H. v. Austria was brought before the ing, and report back to the Court periodi- that the methods of punishment adhere to ECtHR by two couples unable to conceive cally. Despite the implementation of provi- international norms. without the use of banned third party in sional measures, in April 2004, another riot vitro procedures. In a decision on the broke out at Urso Branco, resulting in the Although the UNIS provisional mea- merits, a chamber of the First Section of deaths of fourteen inmates. The most recent sures indicate that the Brazilian detention the Court found that Austria’s law violated violent deaths at Urso Branco occurred in system continues to warrant vast reform, Article 8, recognizing “the right of a cou- December 2007, when prison guards shot, the state’s efforts to ameliorate conditions ple to conceive a child and to make use of but did not kill, four inmates during a two- in response to the Urso Branco provisional medically assisted procreation for that pur- day period in August 2009. measures is a step in the right direc- pose.” Because the Grand Chamber ruled tion. The Inter-American System’s readi- In August 2011, the Court lifted the this right existed, it found a violation of ness to compel member states to address Urso Branco provisional measures after Article 14 (prohibition of discrimination) poor prison conditions, and the subse- prisoners’ representatives agreed with by not allowing those unable to conceive quent improvements, are promising move- national and state government representa- access to that right. Austria appealed the ments for prisoner rights in greater Latin tives that conditions had improved sig- decision to the higher Grand Chamber and America. Time will tell whether advances nificantly over the nine-year period. The argued that that although the right to con- achieved are systemic or merely reactive to State had submitted a report to the Court ceive should be protected, that right must discrete incidents. in July 2002 as evidence of improved not extend to all possible means of concep- conditions at Urso Branco, claiming that Anna Taylor, a J.D. candidate at the tion. In particular, the state was concerned penitentiary agents were replacing the spe- American University Washington College with “selection” of children, exploitation cial police force in charge of security, and of Law, covers the Inter-American System of women, and the dilemmas created by that competitive public tests were being for the Human Rights Brief. children who would have two women who conducted to ensure that candidates for could claim motherhood. penitentiary agent positions were highly European Court of Human Rights In its judgment, which is final, the qualified. A September 2004 compliance Grand Chamber struck down the lower report to the Court indicated that the chamber’s ruling, finding no violation of prison had increased the number of guards Decision Upholding In Vitro Article 8 of the ECHR, which also had the and improved the quality of prison health Fertilization Ban Relies on Lack effect of making Article 14 inapplicable. In care. In additional statements to the Court, of European Consensus particular, the ECtHR found that Austria’s Brazil claimed that 1) the number of Urso The European Court of Human Rights laws strike a balance between public and Branco prisoners had decreased; 2) the (ECtHR) ruled on November 3 that no private concerns. That balance was used prison had been renovated; 3) free legal concensus has emerged on the continent in the same manner as in what otherwise advice was now available to the inmates; to make in vitro fertilization a human appears to be a conflicting ECtHR ruling and 4) steps had been taken to create right that requires protection. The decision 59 in favor of a prisoner whose wife was Ireland could not restrict access to legal use of hearsay evidence. In the case of denied access to artificial insemination abortions but declined to require the coun- Tahery, however, one witness refused to in Dickson v. United Kingdom. In S.H. v. try to extend the practice beyond when a testify in the trial involving a stabbing dur- Austria, the Grand Chamber cited studies woman’s life is at risk due to pregnancy, ing a gang fight and the case hinged criti- documenting regulation of in vitro fer- the court stayed out of the broad moral cally on that witness’ testimony, which the tilization across Europe, including bans decision. The court, in avoiding a sweeping defense had no other method of challeng- on ovum donation in several European ruling in S.H. v. Austria, ensured that the ing. The Grand Chamber of the ECtHR did countries. For the Grand Chamber, a lack moral and religious issues neither over- not object to the barring of this testimony. of consensus across the continent and stepped individual protections nor were The approach essentially adopts the British an absence of long-standing principles impugned by other human rights issues. rule of a generally strong restriction on signified that the issue before the court — hearsay evidence with an exclusion for The ECtHR made it clear with its deci- whether Article 8 encompasses the right only particular circumstances. sion in S.H. v. Austria that it is not inclined of couples to all possible means of medi- to decipher the answer to the Pope’s ques- Previously, the UK has bristled over cally induced conception — is not settled. tion. The court recognized that there might ECtHR-imposed restrictions on its ability That conclusion led the Grand Chamber be changes to the overall trend in Europe to deport foreign nationals — including to decline to step in and decide domestic and gave notice to the states that the issue those convicted of violent crimes like policy, so long as states maintain that bal- “needs to be kept under review.” Unless rape — and for more than six years has ance between public and private concerns. consensus emerges, the ECtHR is con- refused to adhere to an ECtHR deci- In the fertilization debate, proponents cerned with making sure both sides of a sion requiring that convicts be allowed to of expanded access to scientific methods debate are represented in the law instead vote. In a January 24, 2012 speech before of conception call on Article 8 and simi- of choosing between the two. the Council of Europe Parliamentary lar protections that specifically identify a Assembly, Cameron staked out the UK’s right to creation of a family as a dominant plans for reform in response to what he European Court Sidesteps human right. The dissent in the Austria called growing unease over the court. Exacerbating UK Conflict in opinion cited a World Health Organization “When controversial rulings overshadow Hearsay Case report that concluded that infertility affects the good and patient long-term work that 80 million people worldwide. The authors The Grand Chamber of the European has been done,” he said, “that not only fails of the report wrote that, “it is a central Court of Human Rights (ECtHR) averted a to do justice to the work of the court it has issue in the lives of the individuals who possible conflict with the United Kingdom a corrosive effect on people’s support for suffer from it. It is a source of social and in December by overturning a lower human rights.” psychological suffering for both men and Chamber ruling that almost completely A leaked draft of the UK’s plan for women and can place great pressures on barred the use of hearsay evidence to con- ECtHR reform — called the Brighton [a couple’s] relationship”. The other side vict a criminal and overruled exceptions Declaration — surfaced in February 2012 approaches the debate by identifying the in British law. The long awaited decision and advocates for bold reform in three sig- “moral and ethical issues,” as the court in the combined case of Al-Khawaja and nificant areas. First it recommends insert- calls them, emphasizing the creation of life Tahery v. the United Kingdom, — arriving into the ECHR explicit recognition of and the concern that fertility treatments ing more than 18 months after the Grand the principles of “subsidiarity” and the often prioritize science over morality. One Chamber hearing — came as the UK “margin of appreciation,” both of which of the most prominent opponents of in vitro assumed the rotating chairmanship of the operate to recognize the Court’s deference and other methods of artificial fertilization Committee of Ministers of the Council of to national courts. Secondly, the docu- is the Catholic Church. In 2008 Pope John Europe, the larger body that oversees the ment recommends a system whereby a Benedict XVI, in reference to fertilization ECtHR. The chairmanship has embold- national court could refer a point of law to outside of the body, said, “When human ened critics within the UK government to the ECtHR. Third, it proposes altering the beings in the weakest and most defenseless push for long-sought reforms to the Court admissibility requirements under Article stage of their existence are selected, aban- and the country’s connection to it. 35 to both shrink the time limit under doned, killed or used as pure ‘biological The Grand Chamber overruled the which an application can be filed and matter’, how can it be denied that they are lower Chamber in the case and held that make clear that the default is that an appli- no longer being treated as ‘someone’ but as testimony is admissible where there is good cation is inadmissible if it is the same in ‘something’, thus placing the very concept reason a witness cannot testify directly and substance as a matter decided by a national of human dignity in doubt?” there are adequate safeguards to comply court taking into account the convention. The ECtHR’s restraint in interfering with Article 6 of the European Convention The proposals will be debated at a confer- with fertilization policy reflects the court’s of Human Rights (ECHR), which provides ence in April at the end of the UK’s term at avoidance of choosing between two differ- for the right to a fair trial. In the case of the chairmanship. ent issues within the human rights frame- Al-Khawaja, a woman who accused the The Cameron government has also work: the right to family life and a con- defendant of indecent assault was unable to sought reform on the domestic level, which cern for the law’s interference in deeply testify because she had committed suicide, is controlled by the Human Rights Act of entrenched moral issues concerning the but a number of friends and the complaint 1998, which inter alia committed British creation of life. Like in A, B, and C v. of another alleged victim corroborated her courts to give effect to the decisions of the Ireland in 2010, when the court ruled that affidavit. The Grand Chamber upheld this 60 ECtHR. Political conflict lead one conser- to proceed. IMLU is a non-governmental — Kenyan government’s failure to investi- vative member to resign from the eight- organization with a mandate to protect gate alleged human rights violations — are person panel working to draft a British Bill Kenyans from human rights violations continuous from the time of the incident of Rights as a possible replacement for the perpetrated by the government. IMLU until IMLU concluded that the Kenyan Human Rights Act. Any progress the panel filed the reference against the Kenyan government was not going to investigate might make would also be limited by the government seeking to hold it accountable and, where necessary, prosecute for alleged UK’s treaty obligations under the ECHR, for its failure to investigate and, if neces- human rights violations. which makes all decisions by the ECtHR sary, prosecute members of the Kenyan Though IMLU gained a significant binding upon member states. security forces responsible for extraju- victory with the EACJ ruling against the dicial killings, torture, and other human The reforms envisioned by the Brighton dismissal of the reference as a whole, rights violations committed in Mt. Elgon Declaration would further the British the Court dismissed the case against District during the 2006-2008 violent con- objectives by affecting what comes out the Minister for Internal Security of the flict between Kenyan security forces and of Strasbourg, not how it is implemented. Republic of Kenya, the Chief of General the insurgent Sabaot Land Defense Force The recommendations found within the Staff of the Republic of Kenya, and the (SLDF). Human Rights Watch (HRW) proposal would likely make decisions such Commissioner of Police of the Republic estimates that Kenyan security forces car- as Al-Khawaja and Tahery — where the of Kenya — all of whom IMLU sought ried out hundreds of extrajudicial killings, national courts were given deference — a to hold accountable. The EACJ ruled that detained and tortured thousands more, common occurrence. Although this would under Article 30, the individuals named in and are responsible for nearly 200 forced protect the interests of the states, the reforms the lawsuit cannot be joined because they disappearances in violations of several would also meet an intended purpose of are merely employees of the Kenyan gov- international human rights conventions as keeping cases out of the Court. The proposal ernment and are therefore neither a state well as the Kenyan Constitution. calls this efficiency, but it would also have party nor an institution of the East African the effect of effect of restricting individuals’ In seeking dismissal, the Attorney Community (EAC) that can be sued in access to the court as a final refuge. General relied on Article 27 of the Treaty the EACJ. Accordingly, only the Kenyan for the Establishment of the East African government can be held accountable by ECtHR President Nicholas Bratza Community (Treaty), which limits the the EACJ for failing to ensure the rule of warned political leaders against using jurisdiction of the EACJ to interpreting and law, so only the Attorney General may be “emotion and exaggeration” to criticize the applying the Treaty and expressly restricts named in the lawsuit. court in a speech delivered two day’s after the Court from deciding cases related to Cameron’s address. Bratza — a British The EACJ’s rejection of the Attorney human rights issues until a protocol — lawyer — defended the court and empha- General’s opposition is significant beyond not yet completed — expands the Court’s sized its importance amidst the European the case at issue. The decision effectively jurisdiction over such cases. In response, debt crisis. “Human rights, the rule of law expands the jurisdiction of the EACJ to the IMLU claimed that a good faith read- and justice seem to be slipping down the cases that detail human rights abuses, ing of Article 27 of the Treaty pursuant political agenda in the current economic provided those cases focus primarily on to the Vienna Convention on the Law of climate,” he said. “We must continue to violations of the Treaty. The failure of the Treaties established the jurisdiction of the ensure that the court remains strong, inde- Kenyan government to investigate details Court to hear allegations of violations of pendent and courageous in its defense of the of atrocities committed during conflict in the fundamental principles of the Treaty. European Convention on Human Rights.” the Mt. Elgon region leaves the families of In the present case, these principles are victims in plight with no means of obtain- Matthew Lopas, a J.D. candidate at the set forth in Articles 6(d) and 7(2) — the ing closure and justice for their loved ones. American University Washington College obligation of states parties to ensure rule The reference filed before the EACJ seeks of Law, covers the European Court of of law and good governance, and to main- to hold the Kenyan government account- Human Rights for the Human Rights Brief. tain universal human rights standards. The able for this failure, and the court’s denial EACJ agreed with IMLU and asserted its of the respondent’s opposition permits the jurisdiction despite the Attorney General’s African Human Rights System case to move forward. objections. According to the Court, IMLU allegations are based on violations of fun- The East African Court of Justice damental Treaty principles, and the mere The African Court Affirmed Asserts its Jurisdiction to Hear mention of alleged human rights violations Its Sole Jurisdiction over the The Independent Medical Legal in the reference does not purge the Court Interpretation of the East African Unit’s Reference Against the of its jurisdiction over the case. Community Treaty Kenyan Government The Attorney General also argued that On December 1, 2011, the East African On June 29, 2011, The Independent the reference was time barred pursuant to Court of Justice (EACJ, Court) held that Medical Legal Unit (IMLU) achieved a Article 30(2) of the Treaty. According to eligible applicants may file a reference monumental victory in the East African the Attorney General, IMLU knew about alleging violations of the East African Court of Justice (EACJ) in its case against the complaint in 2008 and failed to file the Community Treaty (Treaty) without first the Republic of Kenya, when the court reference to the EACJ within two months exhausting local remedies, and further denied a motion to dismiss filed by Kenya’s thereafter. Yet the EACJ rejected this argu- issued a declaration that Rwanda breached Attorney General and ordered the case ment, ruling that the alleged violations the Treaty when it unlawfully detained 61 Lieutenant-Colonel Rugigana Ngabo of the government extended him full rights The Court does not typically interfere the Rwanda Patriotic Front (RPF). The within the perimeters of the Rwandan laws, with the states’ enforcement of its criminal case Plazeda Rugumba v. Attorney General including visitation rights. The Rwandan law. However, in light of the absence of an of the Republic of Rwanda was initially government conceded, however, that it did express provision barring the jurisdiction filed by Lt. Col Ngabo’s wife in November not lawfully move to place Lt. Col Ngabo of the Court over cases where applicants 2010, urging the Court to declare that the in preventive detention until January 2011, did not exhaust local remedies, as well government of Rwanda detained her hus- after Mrs. Ngabo filed the reference before as the Court’s exclusive jurisdiction to band incommunicado — without means the EACJ. Lt. Col Ngabo’s detention from review alleged violations of the Treaty, the of communication. Lt. Col Ngabo was not his August 2010 arrest to that point was Court decided to entertain the reference. placed in preventive detention under law- found by the Military Court of Rwanda to Accordingly, the Court found that Rwanda ful authority until January 2011, more than constitute a breach of Articles 90 though detained Lt.-Col in violation of Article 6, two months after the reference was filed. 100 of the Rwandan Code of Criminal which restricts deprivation of individual’s Procedure, which broadly govern custody liberty only in circumstances where the The Court found that Rwanda violated pending investigation. More significantly, individual has violated established laws of Articles 6(9) and 7(2), which broadly the Rwandan government challenged the the state, and Article 7, which grants indi- oblige Rwanda as a party to the Treaty to jurisdiction of the Court to interfere with viduals the right to be heard and go before adhere to principles of universal human domestic affairs by hearing cases implicat- trial within a reasonable time before an rights through democracy and good gov- ing human rights issues that are pending impartial court or tribunal. ernance. Mrs. Ngabo’s reference also before local courts. sought to hold the Secretary General of Consequently, the Court issued a dec- the East African Community accountable The Court rejected these arguments, laration stating the Rwanda breached for breach of Article 29 of the Treaty, spe- holding that the jurisdictional challenge Articles 6 and 7 of the Treaty. By declaring cifically for failing to take necessary mea- was premised on a mistaken interpreta- that applicants do not need to exhaust local sures to oversee the compliance of Rwanda tion of Mrs. Ngabo’s application to the remedies, the Court effectively expands with the Treaty regarding the arrest and Court. Mrs. Ngabo has sought a declara- the number of individuals who can file detention of Lt. Col Ngabo. The Court, tion that Rwanda breached its obligation applications with the Court, and possi- however, dismissed the allegation against under the Treaty. To that end, the reference bly increase the volume of cases that the the Secretary General of the East African implicates the Court’s Article 27(1) power Court considers. Furthermore, the decision Community for lack of notice. to interpret the Treaty and ensure compli- indicates that although the Court does not ance. Significantly, the Treaty does not directly interfere with domestic criminal Mrs. Ngabo’s reference alleged that have an express provision that mandates matters, it retains jurisdiction to review her husband was unlawfully detained that applicants exhaust all other remedies the actions of states in the enforcement of incommunicado without trial as a threat before seeking a remedy from the Court their domestic in areas where compliance to national security. According to Mrs. for an alleged violation of the Treaty. As with the Treaty is implicated. As such, the Ngabo’s application, her efforts to obtain such, the Court may entertain the reference Court’s decision in this case indicates a information about the whereabouts of her even if the matter is pending before the balance between the state’s rights to imple- husband had been futile to that point, and Rwandan courts. The fact that Rwandan ment its laws and the Court’s mandate to her husband had been denied his rights to courts took action — notably, after the ensure compliance with the Treaty. visitation by either a health professional or reference was filed — does not oblige the even the Red Cross. In response, Rwanda Sarone Solomon, a J.D. candidate Court to then relinquish its exclusive juris- denied the allegations, instead arguing at the American University Washington diction to interpret Treaty and its mandate that the Lt. Col Ngabo was in “preven- College of Law, covers the African Human to ensure compliance. tive detention” in a military prison where Rights System for the Human Rights Brief.

62 Updates from Inter-Governmental Organizations

International Implications of supports and promotes literacy programs Members of UNESCO contribute the United States’ De-funding across the developing world. The right to according to their share in the world econ- UNESCO education is enshrined in Article 13 of omy. A member state that fails to pay its The UN Education, Science, and the International Covenant on Economic bills will also lose its vote in the organiza- Cultural Organization (UNESCO) recently Social and Cultural Rights. UNESCO’s tion. The consequences of a U.S. refusal to launched the Emergency Multi-Donor Education for All initiative, which seeks recognize the PLO could be far-reaching. Fund to fill the void created by the deci- to meet the second MDG of universal If the Palestinians follow through on plans sion of the United States, Canada, and primary education by 2015, has faced to apply for full membership in other Israel to halt their monetary contributions. large funding gaps since its inception. UN and international institutions such as Under U.S. legislation from the 1990s, the UNESCO’s own funding shortfall as a the International Atomic Energy Agency, Obama administration was obligated to cut result of the Palestinian vote is likely to World Health Organization and World off funding to UNESCO after its members exacerbate budgetary constraints on this Bank, U.S. law will require de-funding voted on October 31st by a margin of crucial program. Specific programs that may organizations that provide crucial interna- 107 to 14 with 52 abstentions to accept be affected include: literacy training for tional cooperation. It would deprive much Palestine as a full member. The defund- Afghan police, an Iraqi curriculum develop- of the UN system of its single largest mon- ing may compromise basic international ment program, and education infrastructure etary contributor, thus hindering the work principles such as: UNESCO’s ability to support in South Sudan. The Emergency of these specialized UN agencies. promote universal education, Palestine’s Multi-Donor Fund is unlikely to cover the twenty-two percent shortfall. Further, right to international participation under EU Blocks Sales of Lethal UNESCO will be forced to reformulate its the International Covenant on Civil and Injection Drugs to the U.S. Political Rights (ICCPR), and multilateral budgetary plans in the coming years. Through several UN General Assembly cooperation on a much larger scale should The Palestinian Authority (PA), a sub- resolutions since 2007, the organization the U.S. defund other UN organs. sidiary of the PLO and the governing body has encouraged the global trend towards the U.S. contributions to UNESCO constitute of the West Bank, faces political and eco- elimination of the death penalty. However, nearly $80 million per year, or twenty-two nomic constraints as well. In April, a UN 34 U.S. states, the U.S. federal government percent of UNESCO’s regular budget. With report on the progress the PA has made and the U.S. military, as well as many the contribution mostly unpaid in 2011, towards state-building concluded that its other countries, continue to allow capital UNESCO has halted all new projects, and policies have placed the Palestinians in a punishment. In December, the European may be forced to suspend other programs position for the establishment of a state in Union (EU) decided to restrict sales to the and lay off staff. The funding withdrawal the near future. Participation in interna- U.S. of sodium thiopental and other drugs was triggered by the 101st Congress’s tional organizations is crucial to fulfilling required in lethal injections, the most passage of the Membership of Palestine conventional attributes of statehood. With widely used method of capital punishment Liberation Organization (PLO) in the UN the peace process between Israel and the in the U.S., to prevent their use for the Agencies bill. The Obama Administration Palestinians stalled, unilateral American death penalty. Although international con- is struggling to find a way around this actions are frustrating another avenue for ventions calling for the elimination of the statute that prohibits U.S. funding to any Palestine’s international participation. death penalty such as the Second Optional UN agency that accords the PLO the same The U.S.’s Membership of the PLO in Protocol to the International Covenant on standing as member states. The statute was UN Agencies bill seeks to deter further Civil and Political Rights (ICCPR) do not passed in 1990, before the signing of the attempts by the Palestinians to gain full obligate nations to promote the elimination Oslo Accords between Israel and the PLO, recognition in international organizations. of capital punishment, the EU is exercis- which granted international recognition to In December, after halting development ing its right to encourage abolition. Due the PLO as the legitimate representative aid for two months, Congress voted to to the U.S.’s shortage of lethal injection of the Palestinian people. However, it is allow aid to the Palestinians as long as they drugs and a Supreme Court that has shown unlikely that Congress will amend this law were not admitted as a state into any other some willingness to adopt the guidance of and resume funding UNESCO because UN agencies. Facing a potential 1.1 bil- ratified international treaties, abolitionists of a desire in the U.S. to cut government lion dollar shortfall in 2012, Palestinians are hopeful that the EU’s measures will spending. have little choice but to acquiesce. This is succeed in decreasing the use of the death seemingly a breach of Article 5 of ICCPR, penalty in the U.S. with a view to abolition. UNESCO works to attain equal edu- which says that no state shall engage in an cation around the world, mobilize sup- activity that limits the freedoms provided Internationalized courts prohibit capi- port for sustainable development, and in the ICCPR, which include the right of tal punishment. The Second Optional encourage intercultural dialogue. As a key self-determination and the right of peoples Protocol to the ICCPR, which also calls player in fulfilling the UN Millennium to freely determine their political status. on countries to report violations of the Development Goals (MDG), UNESCO Protocol by member states, was adopted 63 by the General Assembly in 1989. Several some European companies continued to v. Florida, took notice of the fact that the regional organizations have also adopted export the drugs to the U.S., several coun- U.S. and Somalia stood alone as countries legal instruments calling for the aboli- tries began to impose limits prior to the that had not ratified the UN Convention tion of the death penalty within their EU’s decision to restrict sales of those on the Rights of the Child. However, the membership, in particular the EU and drugs. The new restrictions have added to Court made it clear that without codifica- the Organization of American States. the already difficult challenge states face tion of international treaties by the U.S. Although these international conventions in obtaining the drugs necessary for lethal Congress, their provisions are not binding do not oblige signatories to promote the injections. The EU hoped its decision on the U.S., and criminal sentencing would abolition of the death penalty in other would mark a step towards the abolition be decided exclusively in accordance with countries, violations of international trea- of the death penalty leading towards the U.S. laws. In Medellin v. Texas, the Court ties are generally condemned and punished U.S. becoming a “paradigm for reten- permitted U.S. courts to directly contra- through various mechanisms adopted by tionist countries.” Death sentences have dict a judgment of the International Court other member states. Similarly, although dropped dramatically in the U.S. recently. of Justice. As such, UN resolutions and the EU is not obliged to sanction countries Some organizations partially attribute the other international protocols calling for that retain the death penalty, it is fully sharp decline in executions to the supply the abolition of the death penalty are not within its right to do so. The EU’s move shortage of lethal injection drugs. Several binding on United States. Thus, without an offers an interpretation of Article 5 of the manufacturers have either suspended the affirmative decision by Congress to outlaw Universal Declaration of Human Rights manufacture of the drugs or blocked sales the death penalty or codify international (UDHR), which prohibits the use of “tor- to the United States. Hospira, the only treaties which do so, the U.S. will continue ture or other cruel, inhuman or degrading American manufacturer of sodium thio- to retain such a practice. Meanwhile, the treatment or punishment” to include the pental, suspended its production of the EU’s move to block sales of lethal injection death penalty. The EU is actively attempt- drug due to poor publicity from its use in drugs, which it promises to continue and ing to promote the abolition of the capital lethal injections. expand as necessary, may have a practical punishment, which it defines as illegal effect leading to the decreased implemen- With an American administration pur- under the UDHR. tation of executions in the U.S. porting to work increasingly within a multi- Protocol No. 6 of the European lateral framework, many question whether Marie Soueid, a J.D. candidate at Convention for the Protection of Human international standards will pressure the the American University Washington Rights and Fundamental Freedoms, which U.S. to abolish the death penalty, as the College of Law, covers Intergovernmental entered into force in 1985, abolished the EU hopes. Recent U.S. Supreme Court Organizations for the Human Rights Brief. death penalty for all signatories. Although decisions, Roper v. Simmons and Graham

64 Book Review

events, such as when narco-traffickers a classification, arguing that human rights sewed a face onto a soccer ball, and threw abuses often increase during armed con- heads onto a dance floor in a nightclub. flict. In fact, Human Rights Watch recently Grillo deftly pulls voices from a variety of released a report documenting human individuals, including civilian victims of rights abuses committed by the Mexican violence, Mexican soldiers turned drug- police and military during anti-narcotics cartel assassins, and Mexican politicians, operations.3 each of whom explain the incentive to join Grillo does not classify the conflict as the cartels, and the fear and intimidation an armed conflict, but instead reinforces the cartels wield. an idea that the Mexican drug cartels are Grillo takes the reader through dif- a “criminal insurgency.” The U.S. Army ferent aspects of narco-trafficking, each “Counterinsurgency” manual defines an one entrenched in the culture of traf- insurgency as a “protracted, politico-mil- ficking. The book begins with the his- itary struggle designed to weaken the tory of growing marijuana and opiates in control and legitimacy of an established Mexico, and then moves into the formation government . . . .”4 Unlike a traditional and structure of the main cartels — the insurgency, however, the drug cartels do Sinaloa, La Familia, and the Zetas. This not fight based on ideology, and they do section includes fascinating accounts of not want to take control of the government. song-writers who are paid to write songs The narco-traffickers seek to make money, that glorify narco leaders, and reflect the and do so by illegal means, thereby making religious fanaticism that accompanies their insurgency “criminal.” Ioan Grillo, El Narco: Inside some of the groups. The book concludes Grillo uses a definition of “insurgency” Mexico’s Criminal Insurgency with discussions about the prosecution of from Merriam-Webster’s dictionary, and (Bloomsbury Press, 2011) narco-traffickers and the expansion of the likens the conflict to that of the rebellion cartels beyond narco-trafficking and into The Mexican drug trade has been ram- in the Niger Delta over oil fields. Taking extortion. Grillo continually drops in bits pant for decades, increasing in violence the definition from a dictionary seems, of information about his own history, such as the years have passed. A recent BBC perhaps, rudimentary, but it also works. as how he had many friends who were article reported that since 2006, there The dictionary defines “insurgency” as “a avid drug users, and how that somehow have been 50,000 drug-related killings in person who revolts against civil author- 1 allows him understand drug addiction bet- Mexico. Each day members of Mexican ity or an established government,” and ter. Although his comments do not provide drug cartels engage in battles against each the drug cartels are doing just that in the insight into the Mexican drug violence, he other, Mexican state and federal police, name of making money. Perhaps it is easy seems to be building his own legitimacy and the Mexican military. Because of to incorrectly presume that insurgencies by bringing himself closer to the subject the drug trafficking, people in Mexico, are related to religious ideology because matter. including Mexican citizens, foreigners, of the U.S. “war on terror,” while in fact, and migrants, experience human rights From a legal perspective, one of the an insurgency is a simple revolt against violations on a regular basis. The most most interesting parts of the book is the authority. Despite the debate over how to severe of these are violations of the right chapter titled “Insurgency,” which deals legally classify the conflict in Mexico, to life, but also include lack of access to with the classification of the conflict. Grillo vividly describes how the Mexican medical care, education, and livelihood. Many scholars have tried to classify the drug cartels from their history and early Ioan Grillo, a British journalist who has continued violence in Mexico. One law beginnings to their current rituals and lived and worked in Mexico for ten years, review article contends that the situation effects on everyday life in Mexico. has risen to the level of a non-international takes a close look at drug trafficking in Tracey Begley, a J.D. candidate at the armed conflict akin to the Colombian Mexico, how it functions, why it operates American University Washington College conflict.2 The Mexican government, afraid as it does, and who it effects. El Narco: of Law, reviewed El Narco: Inside Mexico’s of the impact on foreign investment and Inside Mexico’s Criminal Insurgency Criminal Insurgency for the Human Rights tourism, is unlikely, however, to declare paints a bleak picture of combative drug Brief. cartels, weak police and prosecutors, and a non-international armed conflict. Many rising violence. Grillo describes grotesque human rights groups also discourage such

Endnotes on page 77

65 ALUMNI PROFILE

“Our clients’ stories do not begin had visited these clients in Florida, they and end in the United States. They were reticent to discuss their experi- begin and end in their home com- ences, even though FRLS was already munities.” This realization prompted aware that their living conditions were Rachel Micah-Jones to establish sub-standard. In Mexico, however, the Centro de los Derechos del Migrante clients were more self-assured and (CDM — Center for Migrants’ Rights), eager to speak about their experiences the first transnational migrant workers’ in the U.S. — about how they had rights organization based in Mexico. not been paid, about the mistreatment However, Micah-Jones’ journey to seek they had endured, and about the poor justice started not in Mexico, but at the conditions in which they lived. Washington College of Law (WCL). It was at this point that Micah- Reflecting on how she became inter- Jones truly understood the fear factor at ested in law and migration, Micah- play in U.S. employer-Mexican migrant Jones, a WCL class of 2003 graduate, worker relations: without any knowl- notes that she gradually developed a edge of their rights, migrant workers deep intellectual curiosity about migrant were unable to assert themselves upon experiences. When considering where arrival in the U.S. and consequently, she would attend law school, Micah- were taken advantage of throughout the Jones was drawn to WCL for its strong entire process, from their recruitment to emphasis on public interest work and the variety of experiences their return to Mexico. Having had this revelation, Micah-Jones the school offered in the human rights arena. One such experi- felt compelled to combat the injustice she saw. In 2005, about ence at WCL’s International Human Rights Law Clinic (IHRLC) one year later, CDM opened its first office in Zacatecas, Mexico. would guide Micah-Jones’ life and career. During Micah-Jones’ The logistics of starting an international NGO were not third year at WCL, members of her clinical team represented a easy to navigate, but seven years after its founding, CDM has domestic worker who was trapped in an exploitative labor situ- expanded its work with migrant workers in the agricultural ation due to the high recruitment fees and travel costs she had sector to include those in the landscaping, crab picking, and paid to attain her job. Micah-Jones remembers speaking with her traveling fair and carnival industries. CDM’s primary work now fellow classmates and professors about how things would have falls into four core project areas: 1) Outreach, Education, and been different for their client had she been informed about her Leadership Development; 2) Intake, Evaluation, and Referral rights before she left for the United States. Perhaps their client Services; 3) Litigation Support and Direct Representation; and could have avoided the situation altogether, or at least sought 4) Policy Advocacy. help earlier, if she knew about resources available to her. Through its Outreach, Education, and Leadership These conversations and the memory of that client stayed Development project area, CDM staff meet with workers in the with Micah-Jones as she began her first job after graduation safe space of their home communities and give them informa- with Florida Rural Legal Services (FRLS), a statewide legal tion about their rights before leaving for the U.S. In this vein, service agency that provides assistance to those who cannot CDM helped establish a Comité de la Defensa del Migrante otherwise afford an attorney. Micah-Jones continued the work (Migrant Defense Committee) composed of current and former she had begun during her WCL clinical experience by working migrant workers who act as peer-to-peer educators and access on FRLS’ Migrant Farmworker Justice Project, which focuses points all along the migrant stream, collaborating to prevent on representing migrant workers in Florida’s agricultural sector. abuses once workers are in the U.S. The Comité has also been The majority of Micah-Jones’ clients at FRLS were Mexican, instrumental in referring cases to CDM for litigation support, and to better communicate with them, Micah-Jones applied for with significant success. and was awarded a grant from the Florida Bar Foundation to take Spanish language classes in Mexico during the summer after her CDM’s Intake, Evaluation, and Referral Services and first year with FRLS. Litigation Support and Direct Representation projects work in tandem. CDM documents and evaluates cases identified by While in Mexico, Micah-Jones not only honed her Spanish CDM staff or referred by partners in the U.S. or Mexico. If language skills, but also learned more about her clients’ home CDM cannot take the case, it connects the worker to a union, communities. She had contact with many of the same clients legal aid, or social services organization, as appropriate. When she had helped in Florida, but found their demeanors to be com- CDM litigates a case, it does so in conjunction with partner pletely different in their home communities. When Micah-Jones

66 organizations and counsel in the U.S. For example, last year, labor conditions experienced by Mexican women who traveled CDM brought cases on behalf of traveling fair and carnival to the U.S. on H-2B visas to work in the crab industry on the workers who were paid subminimum wages for extremely long Eastern Shore, and recommended reforms on the state, national, workdays, provided inadequate food and water, and forced and international levels. For example, Picked Apart recom- to live in crowded, bug-infested conditions. These workers’ mended that Maryland Occupational Safety & Health (MOSH) passports were also unlawfully confiscated upon arrival in the provide greater oversight to the crab industry to help reduce the U.S. A Comité leader who had been trained by CDM prior to incidence of injury and illness among workers. Women inter- his departure for the U.S. brought this situation to the atten- viewed by CDM and WCL universally reported sustaining cuts tion of another NGO, and the New York Attorney General’s on their hands and arms while working with crabs, either from Office ultimately recovered $325,000 for CDM’s client and his the shells or from the knives they use to extract the meat. These co-workers. When the Comité leader returned to Mexico, he also cuts often became infected because the women did not stop started organizing and educating workers recruited by carnivals working to clean them, fearing they would not meet their daily and traveling fairs, which has led to CDM’s Fair Workers, Fair quota of picked crabmeat. Wages campaign. Through this campaign, CDM, in collabora- Similarly, the report urged greater U.S. regulation of recruit- tion with worker centers, law firms, low-wage worker advocates, ment practices and sanctions for employers engaging in worker and universities, seeks strengthened protections for traveling fair abuse through unfair and unlawful recruitment tactics. The and carnival workers vis à vis advocacy with policymakers and majority of women workers interviewed for Picked Apart strategic domestic and international litigation. reported taking out loans to pay the recruitment fees; they then The carnival and traveling fair workers in these cases had all had to pay up to fifteen percent monthly interest on these loans, paid illegal recruiting fees to have their names added to a list while additionally covering the costs of housing, groceries, trans- of H-2B visa job seekers. The H-2B visa is used by employers portation, and work tools, and also remitting money to family in to hire seasonal, non-agricultural migrant workers for jobs in Mexico. In a small victory for CDM and WCL, DOL’s recent industries such as landscaping, seafood, forestry, and hospitality. regulations were influenced in part by Picked Apart’s findings For this reason, CDM applauds the new U.S. Department of and recommendations, and CDM’s continued advocacy. Finally, Labor (DOL) regulations released in February 2012. Under the on the international level, Picked Apart urged the U.S. govern- new regulations, DOL will create a nationwide electronic reg- ment to ratify the International Convention on the Protection of istry where employers will be required to post all positions for the Rights of All Migrant Workers and Members of their Families, which they wish to hire H-2B workers. The database enhances adopted by the United Nations General Assembly on December the transparency of the H-2B system and will hopefully result in 18, 1990. Unfortunately, to date, the U.S. and most other migrant fewer abuses by recruiters of potential employees, while at the receiving countries still have not ratified the convention. same time affording job seekers a better idea of the work they Besides her busy life as CDM’s Executive Director, Micah- will be doing in the U.S. and the hourly rate they will be paid. Jones has recently taken a position in the clinical program at For example, when employers apply to hire H-2B visa workers, the University of Maryland School of Law after relocating from they must now provide the DOL with copies of any agreements Zacatecas back to Baltimore with her husband and two children. they have with recruiters and sub-contractors hired by recruiters. Micah-Jones is currently working on a report detailing labor Also, employers must disclose an accurate description of the abuses under the North American Free Trade Agreement with H-2B job to potential workers, in a language they understand. her clinic students. Finally, employers must guarantee wages that meet the state minimum wage, must pay at least the wage offered to the employee, In considering where her journey will take her next, Micah- and must provide all tools necessary to the job free of charge. Jones says that she feels lucky to have the support of her family, Micah-Jones notes with pleasure that “overall, the new regulations colleagues, and role models, and to be able to do work that she represent a huge step forward for transnational migrant worker loves. She hopes that she will be able to continue the work of rights,” though she hopes to see them enforced. Micah-Jones adds CDM, especially in supporting the sustained development of the that CDM is developing an additional tool to help prevent migrant Comité and its efforts to make a lasting impact on international worker abuse in the form of an interactive map via which workers labor recruitment issues. Micah-Jones believes that by giving can obtain information about recruiters and connect with those workers the tools they need to organize and defend their rights, who have already worked for a certain employer. the workers themselves will be able to bring a much-needed transnational worker perspective to policy debates about recruit- CDM also contributes to labor and migrant worker policy ment and labor conditions. Likewise, the workers will be able to debates by providing analysis and recommendations to poli- empower their compatriots as they undertake their own journeys cymakers on both sides of the border and to worker advocacy from Mexico to the U.S. and back again. groups, through its Policy Advocacy project. One form of CDM’s policy advocacy work is a report, Picked Apart: The Christina Fetterhoff, a J.D. candidate at the American Hidden Struggles of Migrant Worker Women in the Maryland University Washington College of Law, wrote this alumni profile Crab Industry (Picked Apart), co-authored with the Immigrants’ for the Human Rights Brief. Rights Section of the IHRLC (which has since become its own entity, the Immigrant Justice Clinic). The report documented

67 Center and Faculty Updates

Center News Groundbreaking Research with semester program for law students to learn Successful Post-trafficking Re/ about various human rights education Maryland Legal Aid Bureau and Integration in Nepal Underway pedagogies and to teach RFK’s Speak Texas Rio Grande Legal Aid by Center’s Program on Human Truth to Power (STTP) human rights Selected as Local Human Rights Trafficking and Forced Labor curriculum in local high schools. The pro- Lawyering Project Partners The Center’s Program on Human gram will create an innovative, replicable model for experiential learning and teach- The Center’s Local Human Rights Trafficking and Forced Labor is midway ing of human rights. It is unique in its focus Lawyering Projects works with legal aid into a first-of-its-kind study to investi- on training students on the use of differ- organizations to provide training, coaching, gate the re/integration strategies of women ent strategies and methodologies to create mentoring and technical assistance for who are living in Kathmandu Valley after points of entry for discussion of rights- integrating international human rights having been trafficked into forced prostitu- based issues; refining understandings of norms into domestic legal aid work in the tion in India. The study involves qualitative ways to talk about rights to different audi- U.S. Funded by the Ford Foundation, the interviews and focus group discussions ences; and providing practical experience of project is the first of its kind — working with 30 women who escaped or were examining hard legal issues with non-legal at the state level to incorporate human rescued and repatriated to Nepal from 2 audiences. The pilot program will be taught rights norms, language and strategies to 8 years ago, and then entered the care as part of the Fall 2012 WCL curriculum. into domestic work to help advocate for of one of two Nepal NGOs. The study increased protections. will investigate women who, for various Speak Truth to Power, a project of reasons, have not returned to their natal/ the Robert F. Kennedy Center for Justice After receiving more than 10 applica- family and community, and have sought to and Human Rights, uses the experiences tions from legal aid organizations across live independently in urban Nepal society of human rights defenders from around the United States, the Center selected (Kathmandu). This is a positive deviance the world to educate students and others Maryland Legal Aid Bureau, Inc. (www. study and the sample women have been about human rights and empower them to mdlab.org) and Texas Rio Grande Legal purposively selected for their re/integra- understand and operationalize the rights Aid, Inc. (www.trla.org) as its Project tion success. The Program is collaborating framework in their own lives. The project’s Partners for the Local Human Rights with a Nepalese research institute and an renowned human rights curriculum, which Lawyering Project. Maryland Legal Aid expert consultant in Nepal. has been taught to thousands of students in Bureau and Texas Rio Grande Legal Aid Africa, Asia, Europe and the United States, are both highly respected and creative This pioneering research will collect encourages youth to become personally legal aid organizations with a demon- valuable information on NGO service involved in the protection of human rights. strated commitment to human rights. delivery and on successful self-initiated re/integration strategies, leading to recom- The STTP Law Project builds on the success The Project has also established an mendations to strengthen NGO practices of the STTP curriculum, and expands on Advisory Board with over twenty members, to support the re/integration of return- more than two decades of work by the Center consisting of leading legal aid attorneys ees and to address the legal and social to help prepare law students to effectively and human rights experts from across the obstacles of discrimination and stigma discuss and advocate for human rights. United States. Work on this project expands that prevents many former victims from on nearly ten years of work by the Center rebuilding their lives. Human Rights Watch Researcher in promoting human rights law in the U.S. Joins On-the-Ground Journalist Through trainings, workshops, mentoring, The culminating report will be final- to Highlight Ethics in Research and research, the Center seeks to enhance ized by early Summer 2012. For more Issues in Post-Earthquake Haiti understanding of international law and its information on the Center’s Program on applications to domestic social justice work. Human Trafficking and Forced Labor, The Center and the American University The Center aims to bridge the gap between visit: www.RightsWork.org. Washington College of Law International the U.S. role in actively promoting human Human Rights Law Clinic hosted an expert panel discussion on November 7, to discuss rights abroad and recognition of interna- Center Partners with Robert and debate the challenges of human rights tional law and standards within the U.S. ennedy Center for Justice F. K research and investigative journalism in legal system. For more information, visit and Human Rights to Develop a post-disaster setting. Amanda Klasing the Local Human Rights Lawyering Project ioneering Human Rights Education P is a Researcher in the Women’s Rights at http://www.wcl.american.edu/humright/ rogram for Law Students and P Division of Human Rights Watch (HRW) center/locallawyering.cfm. igh School Students H and author of “Nobody Remembers Us”: The Center has partnered with the Failure to Protect Women and Girls’ Right Robert F. Kennedy Center for Justice to Health and Security in Post Earthquake and Human Rights (RFK) to create a one Haiti. Kathie Klarreich is a well-known 68 journalist and author on Haiti and a Knight The Responsibility to Protect Indonesian Migrant Rights International Journalism Fellow at HRW. Today: Did Libya Kill R2P? Defender Anis Hidaya Speaks on The panel addressed logistical challenges, Examines Emerging Issue in Abuse and Protection of Migrant potential obstacles to acquiring true and International Human Rights Law Workers informed consent from interviewees, and The invocation of the emerging doc- On November 3, the Center and the limitations of the legal framework. The trine of the Responsibility to Protect was WCL Women and the Law Program hosted event received international press coverage seen as a watershed moment for the devel- a panel discussion featuring Anis Hidayah, and was featured on Voice of America’s opment of the principle. With the over- recipient of Human Rights Watch’s 2011 Creole Service: http://www.voanews.com/ throw of the Khaddafi regime, the status Alison Des Forges Award. Striving to pro- creole/news/Yon-Fowom-sou-Dwa-Fanm- of R2P and how it was applied is now in tect and promote the rights of Indonesian ak-Timoun-ann-Ayiti-133827168.html question. On November 15, the Center’s migrant workers abroad, Ms. Hidayah cur- Student Advisory Board convened a panel rently serves as the Executive Director of Human Rights Film Series discussion with three experts on the sta- Migrant Care, a non-governmental orga- Highlights Four Films Raising tus of the doctrine of the Responsibility nization based in Jakarta, Indonesia. Ms. the Profile of Key Issues; Awards to Protect (R2P) in light of the crisis in Hidayah spoke about her work monitoring Grant to Aspiring Human Rights Libya. UN Security Council Resolution abuse of Indonesian domestic workers in Filmmaker 1973 provided the international commu- countries such as Kuwait, Malaysia and nity with authority to intervene to protect Saudi Arabia, and advocating for their The 12th Annual Human Rights Film civilians in Libya. Speakers included (in protection by calling for better labor laws, Series, first organized in 2000 and co- alphabetical order): Jonas Claes, Senior oversight of recruitment practices, and sponsored by the American University Program Specialist, U.S. Institute of more effective immigration policies. Center for Social Media (CSM), show- Peace, Center for Conflict Management; cases the power of film to educate and Don Kraus, Chief Executive Officer, advocate about human rights. Four excep- Anti-Slavery Expert and Survivor Citizens for Global Solutions; and Prof. tional documentary films that exhibit Shares Ghana’s Experience Clovis Maksoud, Professor at WCL excellence in filmmaking and explore a and the American University School of On Thursday, February 9th, the Center’s broad spectrum of human rights issues International Service (SIS) and Director of Program on Human Trafficking and Forced are screened each fall. The 2011 selec- the Center for the Global South at SIS. The Labor welcomed James Kofi Annan, a tions were: If A Tree Falls: A Story of the panel was moderated by Student Advisory prominent figure in the global anti-slavery Earth Liberation Front; How To Die In Board member Kaitlin Brush. The event movement, to speak to the WCL com- Oregon; The Redemption of General Butt was webcast live with 40 remote loca- munity about issues concerning Ghana’s Naked; and Not in Our Town: Light in tions participating in the discussion via live law and policy enforcement in the context the Darkness. Following each screening, webcast. of forced labor and child trafficking in there was an opportunity for the filmmaker West African fishing and cocoa industries. and an expert human rights practitioner Mr. Annan is the Founder and Executive to discuss the issues highlighted in the Bedouin Citizens of Israel: Director of Challenging Heights, one of screening with the audience. A Student Struggling for Rights the largest anti-trafficking organizations Human Rights Grant Competition is car- The Center welcomed advocates who in West Africa. A former victim of child ried out in conjunction with the Series to work on behalf of the Bedouin community trafficking in Ghana, James has devoted promote and support student’s multimedia of the Negev on a panel discussing issues his career to fighting child slavery and has initiatives around human rights. This year’s facing unrecognized villages in Israel and received international recognition for his winner, student filmmaker Yi Chen, will the latest plan issued by the Israeli govern- work. Before a capacity-filled room, Mr. utilize her award to tell the untold stories ment to address those issues. Speakers Annan shared his personal experiences and of Washington, DC’s Chinatown neighbor- included WCL 2008 LLM graduate and assessed local, national and international hood and raise awareness of the need for US-Israel Civil Liberties Law Fellows efforts to advocate for the rights of the advocacy for the basic human rights of the Scholar Rawia Abu-Rabia, now a member child and allow communities the ability to community’s residents. The Human Rights of the Israeli Bar Association and a prac- reject child slavery and exploitation. Film Series and the Student Human Rights ticing lawyer at the Association for Civil Grant Competition are campus-wide ini- Rights in Israel in charge of the Bedouin RightsWork.org Project of tiatives supported by all six schools at rights project; Thabet Abu Ras, Director Program on Human Trafficking American University. For more informa- of the Negev Project at Adalah, the legal and Forced Labor Publishes New tion on the 2011 Human Rights Film center for Arab minority rights in Israel; Research Series, visit: http://www.wcl.american. Hanan Alsaneh, Director of Education edu/humright/center/12thannualhumanrig and Community Development at Sidreh In January and February 2012, the htsfilmseries.cfm. Association; and Michal Rotem, Program Center’s Program on Human Trafficking Coordinator of the Negev Coexistence and Forced Labor published two new arti- Forum for Civil Equality in Israel. The cles looking at demand and transparency event was held in collaboration with as it relates to human trafficking. The arti- Project Engage. cles, Lack of Transparency in Recruitment Spurs Trafficking by Cathleen Caron and

69 Addressing the Demand Side of Trafficking a presentation to the Chilean Congress the D.C. Interpreter Bank, which links by Phil Marshall, can be found on www. on the “Real and Universal System interpreters and translators to D.C. legal RightsWork.org. The site also published Protection of Human Rights.” The follow- services providers. In January 2012, reviews of two new books looking at the ing month Dean Grossman received the Professor Bennett was appointed as an differentiation between trafficking victims 2012 Deborah L. Rhode Award from the Advisory Board Member of the Center for and labor migrants: Rhacel Parrenas’ AALS Section on Pro Bono and Public Human Rights and Humanitarian Law’s Illicit Flirtations: Labor, Migration, Service Opportunities, for work on behalf Local Human Rights Lawyering Project, and Sex Trafficking in Tokyo and Pardis of pro bono and public interest programs and as an Executive Committee Member Mahdavi’s Gridlock: Labor, Migration, throughout the country. That same month of the AALS Section on Law and Poverty. and Human Trafficking in Dubai. Dean Grossman participated as a panel- She also gave a presentation, “Under ist at the AALS Annual Meeting for an Milkweed: A Chronicle for a Pedagogy event concerning globalization and legal of Community Economic Development Center Selects 2012 Student education entitled “Are U.S. Law Schools Law and Community Lawyering,” at the Advisory Board, Recognizing and Giving Their Students the Tools They Need AALS Workshop on the Future of Legal Training Future Human Rights to Succeed in a Globalized Environment?” Education. Leaders In February, Dean Grossman participated David Baluarte is the Practitioner-in- The Center is proud to announce the as a co-organizer and panelist at a con- Residence for the International Human newly selected 2012 Center for Human ference on the Use of Forensic Evidence Rights Law Clinic at Washington College Rights and Humanitarian Law Student in the Fight against Torture. The confer- of Law. Professor Baluarte continues Advisory Board (SAB) members: ence was cosponsored by WCL and the his work to combat statelessness in the Christina Fetterhoff, Upasana Khatri, International Rehabilitation Council for Caribbean and the United States. He Diana Navas, Rachel Schulman, Corrie Torture Victims. Dean Grossman served was recently selected by the UN High Walters, Jacqueline Zamarripa, and as a panelist for “Using Forensic Medical Commissioner for Refugees to implement Alyssa Zamorra. The SAB is a group Evidence in Court” and his topic was a project with a Law Clinic in Nassau, The of highly qualified and committed “Standards Regarding Evidence.” Later Bahamas that will develop the capacity of Washington College of Law students inter- that month he traveled to Australia to give that clinic to defend the citizenship rights ested in human rights and humanitarian several presentations. In Melbourne at the of Bahamians of Haitian descent. Baluarte law who work closely with the Center Monash University Law Conference on has continued his work in the Dominican over the course of a year. As part of its Implementing Human Rights in Closed Republic, and spoke in support of national- long-standing commitment to cultivating Environments, Dean Grossman partici- ity rights of Dominicans of Haitian descent future human rights leaders, the Center pated in the Plenary Session 1, speaking on on a panel at Georgetown Law Center at selects SAB members based on their com- International Perspectives on Recognizing the end of the 2011; the panel included mitment to pursuing human rights careers Human Rights in Closed Environments. experts from UNHCR and the US State and advancing human rights issues. The At that conference he also served as Department as well as the Dominican SAB assists the Center in developing pro- a discussion facilitator for Parallel Ambassador to the US. Professor Baluarte gramming that reflects student interests Session 3B on the Exploration of the will accompany a group of students from and priorities and each member serves as a International & Comparative Perspectives WCL on an Alternative Spring Break trip Fellow to a core Center project. Members — Disability Settings. Also in Melbourne, to the Dominican Republic to do legal also receive specialized skills training Dean Grossman gave a lecture on The documentation with the Jesuit Refugee in topics such as grant-writing, public Relevance of the Convention against Service in bateyes surrounding Santo speaking, advocacy, and field research to Torture in Preventing and Redressing Domingo. Baluarte further awaits the enhance their capacity to carry out mean- Violence against Women at The Human launch of a report he authored for the UN ingful human rights work. To learn more Rights Law Centre and Castan Centre for High Commissioner on Refugees and the about the current SAB members visit: Human Rights Law. At the University of Open Society Justice Initiative on state- http://www.wcl.american.edu/humright/ Sydney, Dean Grossman gave a guest lec- less persons in the United States, which is center/2012/sab.cfm. ture on The Inter-American System for the expected in 2012. Webcasts and podcasts of recent Center Protection of Human Rights: Challenges. events are available for download on the Over these few months Dean Grossman A founding member of the National Center’s website, www.WCLCenterforHR. was interviewed by a variety of organi- Lawyers Committee for Human Rights org. zations including CNN en Español, El (NLCHR) of Peace Brigades International, Mercurio, Right Now and Latin Pulse Professor Baluarte has also been support- Podcast. ing the work of human rights defenders Faculty Updates in Colombia, Guatemala, and Mexico. In Susan Bennett is Professor of Law and Claudio Grossman is the Dean of June 2012, Professor Baluarte will lead a Director of the Community and Economic American University College of Law NLCHR delegation to Mexico to inves- Development Law Clinic at WCL. She is (WCL) and a Co-Director of the Center tigate the situation of migrants’ rights 2011-2012 chair of the advisory board for for Human Rights and Humanitarian Law. defenders and review the implementation of the Community Economic Development He is also the Raymond Geraldson Scholar Mexico’s new immigration law. Professor Pro Bono Project of the D.C. Bar. She for International and Humanitarian Law. Baluarte also continues his work on the also serves on the board of directors of In December 2011, Dean Grossman gave implementation of the decisions of human 70 rights bodies. The American University serve as a Contributing Editor to Oxford Inter-American Human Rights System)” International Law Review will publish Reports on International Human Rights Law, held at the Instituto de la Judicatura his article “Strategizing for Compliance: a Member of the Editorial Board, Oxford Federal and Suprema Corte de Justicia de The evolution of a compliance phase of Reports on International Law in Domestic la Nación in Mexico City. Inter-American Court litigation and the Courts, Oxford University Press and On March 27, 2012, Professor strategic imperative for victims’ represen- Amsterdam Center for International Law. Rodríguez-Pinzón was interviewed by tatives.” Additionally, he recently travelled Diego Rodríguez-Pinzón is Univision about the Supreme Court’s hear- to Bishkek, Kyrgyzstan for a meeting of Professorial Lecturer in Residence and ings on the constitutionality of the health the UN High Commissioner for Human Co-Director of the Academy on Human care reform. On March 29, 2012, he was Rights and gave a presentation on the Rights and Humanitarian Law. His is interviewed by CNN Spanish about the experiences of implementing the decisions the Correspondent for the Americas for Supreme Court’s hearings on the constitu- of human rights bodies in the Americas to Butterworths Human Rights Cases, tionality of the health care reform. an audience of Kyrgyz government and multi-volume series, London, U.K., 1996 civil society actors. Susana SáCouto is the Director to date. He also reports on the news of the of the War Crimes Research Office Claudia Martin, Co-Director of Inter-American Human Rights System for (WCRO) and Professorial Lecturer-in- American University WCL Academy on Netherlands Quarterly of Human Rights, Residence at WCL. In December 2011, Human Rights and Humanitarian Law Utrecht, The Netherlands, 2001 to date. He Professor SáCouto presented at a panel on and Professorial Lecturer in Residence. published “The Inter-American Human Transitional Justice at the National Defense Professor Martin published The Role of Rights and Transitional Processes,” in University’s 7th Annual International Military Courts in a Counter-Terrorism Transitional Jurisprudence — The ECHR Lessons Learned Conference. Her presen- Framework: Trends in International and Other Regional Human Rights tation was entitled “Political Impact and Human Rights Jurisprudence and Practice Approaches to Transition, Cambridge Lessons Learned from the Practice and in Counter-Terrorism and International University Press, 2011. He also published Jurisprudence of the ICC.” In February Law and Practice, Ana M. Salinas de “Selected Examples of the Contemporary 2012, she delivered opening remarks and Frias, Katja Samuels and Nigel White, Practice of the Inter-American System in presented on a panel entitled “Prosecuting eds., Oxford University Press (2012). In Confronting Grave Violations of Human Gender Crimes at the International Level” February 2012, she served as a judge Rights: United States and Colombia,” at WCL’s Founders’ Day Event, Addressing for the 2012 International Humanitarian in Making Peoples Heard: Essays on Sexual and Gender-Based Violence Law Student Writing Competition orga- Human Rights in Honour of Gudmundur in Conflict and Post-Conflict Settings: nized by the Center for Human Rights Alfredsson, Leiden, Boston: Martinus National and International Strategies. and Humanitarian Law at WCL American Nijhoff Publishers, 2011. Additionally, in Professor SáCouto recently published University. Also, she served as a member 2011, Professor Rodríguez-Pinzón submit- Victim Participation at the International of the Honor Jury of the Essay Competition ted an amicus brief to the Constitutional Criminal Court and the Extraordinary “Gender and Justice,” sponsored by the Court of Colombia regarding freedom of Chambers in the Courts of Cambodia: A Supreme Court of Mexico. From March expression (joined other institutions and Feminist Project, in 18 Mich. J. of Gender 12-16, 2012, Professor Martin lectured on individuals), Washington, DC and Bogota, & L. 297-359 (2012). human rights and indigenous peoples at Colombia, 2011. the Erasmus School of Law in Rotterdam, Macarena Saez is an International In 2012, Professor Rodríguez-Pinzón the Netherlands, as part of a WCL faculty Legal Studies Program Fellow at WCL. taught, “The Inter-American System of exchange program. In March 2012, she She recently published a paper, Same- Human Rights” at the University of Essex, served as a member of the Honor Jury Sex Marriage, in General Reports of the School of Law, Colchester, U.K. He was the that selected the winners of the Academy XVIIIth Congress of the International keynote speaker at “Temas Contemporáneos on Human Rights and Humanitarian Law Academy of Comparative Law (Karen B. del Sistema Interamericano de Derechos Human Rights Essay Competition. In addi- Brown & David V. Snyder, 2012). Humanos (Contemporary Topics of the tion, Professor Martin has continued to

71 Endnotes: Stanev v. Bulgaria: On the Pathway to Freedom 26 Id. 13444/04, Eur. Ct. H.R. (2009). 51 Foreword by Sir Nicholas Bratza, in Peter 27 Id. at para. 122-3. 42 Shtukaturov v. Russia, Application No. Bartlett et al, supra note 20. 28 Id. at para. 124. 44009/05, Eur. Ct. H.R. (2008). 52 Grants to the Mental Disability Advocacy 29 Id. at para. 125. 43 Salontaji-Drobnjak v. Serbia, Application Center by the Open Society Foundations, 30 Id. No. 36500/05, Eur. Ct. H.R. 2009). the Sigrid Rausing Trust, the Trust for Civil 31 Id. at para. 127. 44 Krušković v. Croatia, Application No. Society in Central and Eastern Europe and 32 Id. at para. 126. 46185/08, Eur. Ct. H.R. (2011). Doughty Street Chambers all contributed to 33 Id. at para. 128. 45 Kiss v. Hungary, Application No. 38832/06, MDAC being able to work on the Stanev case, 34 Id. at para. 129. Eur. Ct. H.R. (2010). among others. MDAC sub-granted part of its 35 Id. at para. 154. 46 Seal v. United Kingdom, Application No. funding to the Bulgarian Helsinki Committee. 36 Id. at paras. 222-248. 50330/07, Eur. Ct. H.R. (2010). 53 Nell Munro, Stanev v. Bulgaria, January 37 As an analogy see the approach of the 47 See Article 14(2) of the CRPD, which 19, 2012, www.mentalhealthandcapacitylaw. Court with regards artificial insemination in states that “if persons with disabilities are wordpress.com. S.H. and Others v. Austria, Application no. deprived of their liberty through any process, 54 Lucy Series, Mr Stanev’s fine achieve- 57813/00, Eur. Ct. H.R. (2011). they are, on an equal basis with others, entitled ment, January 20, 2012, www.thesmallplaces. 38 For more on guardianship litigation, see to guarantees in accordance with international blogspot.com. Oliver Lewis, Advancing legal capacity juris- human rights law and shall be treated in com- 55 Lycette Nelson, Stanev v. Bulgaria: The prudence, 6 Eur. Hum. Rts. L. Rev. 700-714 pliance with the objectives and principles of Grand Chamber’s Cautionary Approach to (2011). this Convention, including by provision of rea- Expanding Protection of the Rights of Persons 39 Shtukaturov v. Russia, Application No. sonable accommodation.” with Psycho-social Disabilities, February 29, 44009/05, Eur. Ct. H.R. para. 90 (2008). 48 Jasinskis v Latvia, Application No. 2012, www.strasbourgobservers.com. 40 For more on how the ECtHR is unwilling 45744/08, Eur. Ct. H.R. para. 59 (2010). 56 Interights, Stanev v. Bulgaria, on www. to synthesize UN law into its jurisprudence, 49 Kyutin v Russia, Application No. 2700/10, interights.org. see Magnus Killander , Interpreting Regional Eur. Ct. H.R. (2011). Human Rights Treaties, 7 SUR Int’l J. on 50 See, for example, Costello-Roberts v. the Hum. Rts. 145-169 (Dec. 2010). United Kingdom, Application no. 13134/87, 41 Glor v Switzerland, Application No. Eur. Ct. H.R. (1993).

Endnotes: Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making

1 Convention on the Rights of Persons with 1 Mental Disability L. Rep. 69, 69 (1976), 14 Id., art.19, 19(a)(emphasis added). Disabilities, Gen. A. Res. 61/106, U.N. Doc. writing about post-decree implementation of 15 Id., art. 23 (1), (1)(a). A/RES/61/106 (Dec. 13,2006), art. 12 (2) court orders in institutional reform litigation 16 Id., art. 26 (1). (hereinafter “CRPD” or “the Convention”). in the disability field. 17 Id., Preamble, Par. (j)(emphasis added). 2 Id., art. 12 (3). 5 See Amita Dhanda, Legal Capacity in the 18 Id., art. 12(4). 3 Many commentators have so described this Disability Rights Convention: Stranglehold of 19 Id., arts. 19, 20, 24(2)(d), (e). move toward supported decision making. See, the Past or Lodestar for the Future, 20 Id., Preamble, Par. (e); art. 1, Purpose (rec- e.g., Leslie Salzman, Guardianship for Persons 34 Syracuse J. Int’l L. & Com. 429 (2007). ognizing that persons with disabilities include with Mental Illness — A Legal and Appropriate 6 Tara J. Melish, An Eye Toward Effective those with impairments “which in interaction Alternative?, 4 St. Louis U. J. Health L. Enforcement: Negotiating the U.N. Disability with various barriers may hinder” their equal & Pol’y 279, 284 (2011); Gerard Quinn, Rights Convention, 1, 13 in Voices from participation in society). Many commenta- Rethinking Personhood: New Directions in Within: Civil Society’s Involvement in the tors have noted the social or human rights Legal Capacity Law & Policy or How to Put Drafting of the Convention on the Rights model of disability that undergirds the CRPD. the ‘Shift’ back into ‘Paradigm Shift,’ 4 (Paper of Persons with Disabilities (Sabbatello See, e.g., Arlene S. Kanter, Introduction: The presented at Conference, In From the Margins: & Schultze, eds. forthcoming 2012), elec- Promise and Challenge of the United Nations New Foundations for Personhood and Legal tronic copy available at http://ssrn.com/ Convention on the Rights of Persons with Capacity in the 21st Century, University of abstract=1927381; Jarlath Clifford, Promoting Disabilities, 34 Syracuse J. Int’l L. & Com. British Columbia, Vancouver, Canada, April a Paradigm Shift, Interview of Gerard Quinn 287, 291 (2007). 29, 2011)(on file with the author); Michael & Gabor Gombos for Equal Rights Trust, 2 21 See, e.g., Peruvian National Confederation Bach & Lara Kerzner, A New Paradigm for Equal Rights Review 83 (2008). of People with Disabilities (CONFENADIP), Protecting Autonomy and the Right to Legal 7 Dhanda, supra n 5, at 442. Alternative Report on the Compliance with Capacity 9 (October 2010)(Paper prepared for 8 Amita Dhanda, who was involved in the the Convention on the Rights of Persons with the Law Commission of Ontario)(on file with discussions of Article 12 and the rest of the Disabilities (unpaginated, p. 10)(undated — the author); Gerard Quinn, Personhood and Convention, provides a fascinating insight into available at Legal Capacity: Perspectives on the Paradigm the nature of these debates and disagreements http://www.ohchr.org/EN/HRBodies/CRPD/ Shift of Article 12, CRPD (Paper presented at in Dhanda, supra n.5. Pages/Session7.aspx), which notes that “The Conference on Disability and Legal Capacity 9 Article 12 (1). Peruvian Civil Code denies the ability to exer- under the CRPD, Harvard Law School, February 10 CRPD Preamble, Par. (n). cise their civil rights to deaf-mute, blind-deaf 20, 2010) at 10 (on file with the author). 11 Id., Preamble, Par. (o). and blind-mute persons who are unable to 4 Michael S. Lottman, Enforcement of 12 Id., art. 3 (a), (c). express their will beyond reasonable doubt, as Judicial Decrees: Now Comes the Hard Part, 13 Id., art. 5 (1), (3). well as to mentally handicapped persons and

72 those suffering from mental deterioration.” Convention on the Rights of Persons with information in the remainder of this paragraph These individuals also may not marry unless Disabilities and its Optional Protocol (2007), is also available on this website. they can express their will beyond a reasonable available at http://www.ipu.org/PDF/publica- 39 Committee on the Rights of Persons doubt. tions/disabilities-e.pdf. with Disabilities, Replies submitted by the 22 See, e.g., Rosemary Kayess & Philip 29 International Disability Alliance, Legal Government of Tunisia to the list of issues French, Out of Darkness into Light? Opinion on Article 12 of the CRPD 4 (June (CRPD/C/TUN/Q/1) to be taken up during the Introducing the Convention on the Rights of 21, 2008)(on file with the author). The Legal consideration of the initial report of Tunisia Persons with Disabilities, 8 Hum. Rts. L. Rev. Opinion was signed by 31 individuals from 16 (CRPD/C/TUN/1), CRPD/C/TUN/Q/1/Add. 1, 1, 5 (2008). countries. The author was one of the signato- Fifth Session, 19 (Par. 102)(March 11, 2011). 23 See Salzman, supra n.3. As Dhanda notes, ries to the Legal Opinion. 40 International Disability Alliance (IDA), supra n.5, at 460-61, the language of Article 30 See Stanley S. Herr, Self-Determination, IDA Submission on List of Issues for Tunisia, 12 does not literally prohibit substituted deci- Autonomy, and Alternatives for Guardianship, Committee on the Rights of Persons with sion making but a full contextual understanding Ch. 16 in The Human Rights of Persons with Disabilities, 4th Session 4 (4-8 October 2010). of the negotiation over its meaning strongly Intellectual Disabilities: Different But 41 Atlas Council, Redefining Disability [To militates in favor of a view of legal capacity Equal (Stanley S. Herr, Lawrence O. Gostin & CRPD Country Report, Tunisia], at 5 (October that is inconsistent with more restrictive forms Harold Hongju Koh, eds. 2003). 2010). of substitution. Upon ratifying the CRPD, both 31 See, e.g., Bach and Kerzner, supra 42 Committee on the Rights of Persons with Australia (through a Declaration) and Canada n.3; Lana Kerzner, Paving the way to Full Disabilities, Initial reports submitted by States (through a Declaration and Reservation) indi- Realization of the CRPD’s Rights to Legal parties in accordance with article 35 of the cated their beliefs that some form of substituted Capacity and Supported Decision-Making: Convention: Spain, CRPD/C/ESP/1, 11 (Par. decision making is still permitted under Article A Canadian Perspective 31-32 and 33 et seq, 53), October 5, 2010. 12, though “as a last resort and subject to (Paper presented at Conference, In From the 43 Id. at 11 (Par. 54). safeguards” (Australia) and “in appropriate Margins: New Foundations for Personhood and 44 Id. at 13 (Par. 68). circumstances and subject to appropriate and Legal Capacity in the 21st Century, University 45 CERMI stands for Comite Espanol de effective safeguards” (Canada). Convention of British Columbia, Vancouver, Canada, Representantes de Personas Con Discapacidad. on the Rights of Persons with Disabilities, April, 2011)(identifying British Columbia, It is the government-appointed independent Declarations and Reservations, available Yukon Territory, Alberta, Saskatchewan, monitoring body for the CRPD. at http://www.un.org/disabilities/default. Quebec and Manitoba as having legisla- 46 Human Rights and Disability: Alternative asp?id=475. A full discussion of the extent tion that recognize some form of supported Report Spain 2010, Drawn up by CERMI, to which guardianship, especially plenary decision-making)(on file with the author); cf. State Delegation for the UN Convention. For guardianship, survives Article 12 is beyond the Sarah Burningham, Developments in Canadian the UN Committee on the rights of persons scope of this essay. Adult Guardianship and Co-Decision-Making with disability, 9-10 (Pars. 30-36)(undated; 24 See Robert D. Dinerstein, Guardianship Law, 18 Dalhousie J. Legal Stud. 119 (2009) available at http://www.ohchr.org/EN/ and Its Alternatives, 235,236, Ch. 23 in Adults (describing co-decision-making legislation in HRBodies/CRPD/Pages/Session5.aspx. with Down Syndrome (Siegfried M. Pueschel, Saskatchewan that is a reform of traditional 47 Committee on the Rights of Persons with ed. 2006). guardianship and approaches supported deci- Disabilities, List of issues to be taken up in 25 For a discussion of the contextual nature of sion making). Burningham also describes sup- connection with the consideration of the initial capacity determinations for people with intel- ported decision making legislation in Norway report of Spain (CRPD/C/ESP/1), concern- lectual disabilities, see Robert D. Dinerstein, and Germany (which has a mixed system of ing articles 1 to 33 of the Convention on the Introduction, Ch. 1 in A Guide to Consent support and substitution). Id. At 153. Rights of Persons with Disabilities, CRPD/C/ (Robert D. Dinerstein, Stanley S. Herr & Joan 32 See id. and Klaus Lachwitz, President, ESP/Q/1, 2 (Pars. 9-11), June 20, 2011. L. O’Sullivan, eds. 1999). Inclusion International, Legal Representation 48 Ministerio de Asuntos Exteriores y de 26 The discussion in this paragraph is based on and Supported Decision Making for People Cooperacion, Respuestas de Espana, 8-10, July Dinerstein, supra n.24. with Disabilities in Germany, Berlin, Germany 4, 2011 (in Spanish). 27 See, e.g., Tina Minkowitz, The United (March 6, 2011)(on file with the author). 49 Concluding observations of the Committee Nations Convention on the Rights of Persons 33 Key Elements of a System for Supported on the Rights of Persons with Disabilities: with Disabilities and the Right to be Free from Decision-Making, Position Paper of Inclusion Tunisia, CRPD/C/TUN/CO/1, 4 (Pars. 22-23), Nonconsensual Psychiatric Interventions, 34 Europe (Adopted at General Assembly 2008), May 13, 2011. Syracuse J. Int’l L. & Com. 405, 409 (2007). available at http://inclusion-europe.org/ 50 Concluding observations of the Committee 28 The province of British Columbia, Canada images/stories/documents/PositionPapers/ on the Rights of Persons with Disabilities: has a statute providing for such representa- Position_Supported_Decision_Making_ Spain, CRPD/C/ESP/CO/1, 5 (Pars. 33-34), tion agreements, which permit an individual EN.pdf. October 19, 2011. The Committee also noted with a disability to demonstrate his trust in an 34 Michael Bach, Securing Self- its concern that no measures had been taken to individual or network of supporters to advo- Determination: Building the Agenda in move from substituted decision making to sup- cate on his or her behalf. See Representation Canada 3 (reprinted with permission from ported decision making and that the effective Agreement Act, RSBC 1996, Chapter 405; TASH Newsletter, June/July 1998)(on file with date of legislation on implementation of article Fact Sheet: Representation Agreement: the author). 12 appeared to be unreasonably delayed. As Overview, Nidus Personal Planning Resource 35 CRPD, art. 4(1)(a), (b). with Tunisia, the Committee also called for Centre and Registry, July 2010 (on file with 36 Id. art. 34. training on supported decision making. Id. at 5 the author); Legal capacity and supported 37 Id. art. 35(1). (Par. 34). decision-making 89 in Ch. 6, From provisions 38 See United Nations Office of the High 51 Committee on the Rights of Persons with to practice: implementing the Convention Commissioner for Human Rights, Committee Disabilities, List of issues to be taken up in in From Exclusion to Equality: Realizing on the Rights of Persons with Disabilities, connection with the consideration of the initial the Rights of Persons with Disabilities, available at http://www.ohchr.org/EN/ report of Peru (CRPD/C/PER/1), concerning Handbook for Parliamentarians on the HRBodies/CRPD/Pages/CRPDIndex.aspx. The articles 1 to 33 of the Convention, CRPD/C/

73 PER/Q/1, Sixth Session, 2 (Par. 8), October 57 “MDAC Training on Legal Capacity Law and the Secretary-General: Thematic Study 10, 2011. Reform in Bulgaria,” available at http:// by the Office of the United Nations High 52 Committee on the Rights of Persons with www.mdac.info/en/22/03/2012/mdac_train- Commissioner for Human Rights on enhanc- Disabilities, Initial reports submitted by States ing_legal_capacity_law_reform_bulgaria. ing awareness and understanding of the parties under article 35 of the Convention: Bulgaria’s task force on legal capacity is Convention on the Rights of Persons with Argentina, CRPD/C/ARG/1, 29 (Par. 178), a response to the recent case of Stanev v. Disabilities, Human Rights Council, Tenth June 28, 2011. Bulgaria, ECHR, Grand Chamber, Application Sess., Agenda item 2, A/HRC/10/48, 14-15, 53 Committee on the Rights of Persons with No. 36760/06 ((January 17, 2012) brought by January 26, 2009. Disabilities, Initial reports submitted by States MDAC before the European Court of Human 62 Commissioner for Human Rights, Who parties under article 35 of the Convention: Rights. The Court found that Bulgaria vio- Gets to Decide? Right to legal capacity for Hungary, Seventh Session, CRPD/C/HUN/1, lated Articles 3,5 6 and 13 of the European persons with intellectual and psychosocial 18 (Par. 78), October 14, 2010. Convention on Human Rights in denying the disabilities, CommDH/IssuePaper(2012)2, 54 Australia’s Initial Report under the right of an individual with schizophrenia under February 20, 2012. Convention of the Rights of Persons with guardianship to challenge his confinement to 63 In the Matter of the SCPA Article 17-A Disabilities, CRPD/C/AUS/1, 16-18 (Pars. a decrepit and unclean social care home and Guardianship Proceeding for Mark C.H., 55-63), December 3, 2010. to seek restoration of his legal capacity. (The Ward, 906 N.Y.S. 2d 419, 432-34 (NY Surr. 55 Committee on the Rights of Persons with Court found it unnecessary to address claims Ct. 2010)(Kristin Booth Glen, J.). Disabilities, Initial reports submitted by States under Article 8 of the Convention though two 64 General Observation of the Committee for parties under article 35 of the Convention: judges would have done so.) the Elimination of All Forms of Discrimination Austria, CRPD/C/AUT/1, 23-24 (Pars. 140- 58 “Czech Republic Enacts Legal Capacity against Persons with Disabilities on the need 48), November 2, 2010. Law Reform,” available at http://www. to interpret Article 1.2(b) in fine of thee Inter- 56 Mental Disability Advocacy Centre, “Legal mdac.info/en/news/czech-republic-enacts- American Convention on the Elimination of All Capacity in Ireland,” available at http:// legal-capacity-law-reform. MDAC notes that Forms of Discrimination against Persons with www.mdac.info/en/03/12/2011/legal_capac- Hungary also enacted such legislation but the Disabilities in the context of Article 12 of the ity_in_ireland_read_more. On April 3, statute did not come into effect. Id. United Nations Convention on the Rights of 2012, Amnesty International Ireland and the 59 The Montreal Declaration on Intellectual Persons with Disabilities, CEDDIS/doc. 12(I- Centre for Disability Law and Policy at NUI Disabilities, Pan-American Health E/11) rev. 1 (April 28, 2011). Galway sponsored a one-day seminar entitled Organization and World Health Organization, 65 As of April 8, 2012, 64 states had adopted “Looking Globally, Legislating Locally: The Montreal, Canada (adopted October 6, 2004). the Optional Protocol. See http://www.un.org/ Irish Legal Capacity Bill,” to explore how The author was one of the forty-one signato- disabilities/countries.asp?id=166. proposed legislation on legal capacity can be ries to the Declaration. 66 See Annex II: Optional Protocol to the made compliant with the CRPD. The confer- 60 See n. 29, supra. Convention on the Rights of Persons with ence announcement is available at http://www. 61 Annual Report of the United Nations High Disabilities, available at http://www.un.org/ amnesty.ie/news/looking-globally-legislating- Commissioner for Human Rights and Reports disabilities/default.asp?id=311. locally-irish-legal-capacity-bill. to the Office of the High Commissioner

Endnotes: When Treatment is Torture: Protecting People with Disabilities Detained in Institutions 11 See Special Rapporteur on Torture and 18 Id. 28 Nowak Report, supra note 7, para. 56. other Cruel, Inhuman or Degrading Treatment 19 See Rosenthal & Sundram, supra note 5, at 29 Id., ¶ 42, n.3. or Punishment, Note of the Secretary 513 (the challenge of showing intent and pur- 30 Id. ¶ 47. General para. 42, U.N. Doc. A/63/175 (Jul. pose in a medical or psychiatric context). 31 Id.,¶ 49 28, 2008) (by Manfred Nowak) [hereinafter 20 CRPD, Art. 2. 32 Id. ¶ 47. Nowak Report] (a principle contained in the 21 CRPD, Article 3(a) 33 Id. ¶ 50. Convention Against Torture and other treaties 22 CRPD, Art.25(d). 34 Id. and reaffirmed in the CRPD). 23 Id., art. 12(3). 35 See JRC Banned from Shocking New 12 Convention Against Torture, article 2(2). 24 Mental Disability Rights International, Admissions, at http://www.disabilityrightsintl. 13 See European Committee for the Human Rights & Mental Health: Uruguay, xiv org/2011/11/07/an-end-to-electric-shock-pun- Prevention of Torture and Inhuman or (1995). ishments-at-jrc/ (last visited March 1, 2012). Degrading Treatment or Punishment (CPT), 25 See Michael Winerip, The Global 36 Department of Developmental Dservices, the CPT Standards 53, CPT/Inf/E (2002) — Willowbrook, The New York Times Magazine, ”Response to Testimony and Written Rev 2004 (discussing core minimum standards January 18, 2000 (accompanied by a photo- Comments to Proposed Amendments to that must be guaranteed in all circumstances spread by Eugene Richards). Behavior Modification Regulations 11 CMR despite resource limitations). 26 Mental Disability Rights International, 5.14,” October 14, 2011. 14 Human Rights Committee, General “Torment not Treatment: Serbia’s Segregation 37 Méndez report, supra note 8, ¶77. Comment 31, “Nature of the General Legal and Abuse of Children and Adults with 38 Id., ¶72. Obligation on States Parties to the Covenant,” Disabilities,” 19, 47, 49 (2004). 39 Id., ¶74. ¶8, U.N. Doc. CCPR/C/21/Rev.1/Add. 13. 27 Office of the High Commissioner for 15 Nowak Report, supra note 7, at ¶ 51. Human Rights, Expert Seminar on Freedom 16 Id. from Torture and Ill Treatment and Persons 17 Nowak Report, supra note 7, at ¶ 47. with Disabilities, 11 December 2007, at 5.

74 Endnotes: The Convention on the Rights of Persons with Disabilities in the Post-Lisbon European Union 16 Note, however, that this rubric applies Opinion 2/00 (Cartagena Protocol), 2001 Community: The Implications the United to external competences outside the former E.C.R. I-9713, respectively. Nations’ Convention on the Rights of Persons ‘second pillar’ of Common Foreign and 22 Regulation (EC) 847/2004 on the negotia- With Disabilities for the European Community Security Policy. The Lisbon changes retain tion and implementation of air service agree- (University of Maastricht Faculty of Law the peculiarity of that area of law, even with- ments between Member States and Third Working Paper Series, 2007) 8-15, available out the formalistic pillar structure. See Title Countries, 2004 O.J. (L 157) 7. at http://ssrn.com/abstract=1027872, subse- V, Chapter 2 TEU (AA). In the interests of 23 See Marise Cremona, Disconnection quently published as Breaking New Ground: brevity and clarity a detailed discussion of Clauses in EC Law and Practice, in Mixed The Implications of Ratification of the UN European federalism has been omitted from Agreements Revisited — The EU and its Convention on the Rights of Persons with this discussion. Interested readers can con- Member States in the World (Christophe Disabilities for the European Community, in sult these resources, among many others: Hillion & Panos Koutrakos, eds., 2010). The UN Convention on the Rights of persons Paul Craig & Gráinne de Búrca, EU Law: 24 See generally, Caroline de la Porte, Is the with Disabilities: European and Scandinavian Text, Cases, and Materials (5th ed. 2011); Open Method of Coordination Appropriate Perspectives 101 (Oddy Mjoll Arnardottir & Trevor C. Hartley, The Foundations of for Organising Activities at European Gerard Quinn eds., 2009). European Union Law 175 (2010); Robert Level in Sensitive Policy Areas? 8 Eur. 29 Code of Conduct, supra note 12, ¶1(b). Schütze, On “Federal” Ground: The European L.J. 38 (2002); Gráinne de Búrca, The 30 Id., ¶6(a)-(c). Union as an (Inter)national Phenomenon, Constitutional Challenge of New Governance 31 Id., ¶6(c). 46 Common Mkt. L. Rev. 1069 (2009); in the European Union, 28 Eur. L. Rev. 814 32 Id., ¶6(c)(i). Robert Schütze, From Dual to Cooperative (2003); Gráinne de Búrca & Jonathan Zeitlin, 33 Some sort of Member State CRPD focal Federalism (2009); Theodore Konstadinides, Constitutionalising the Open Method of point coordinating body independent of the Division of Powers in European Union Law Coordination: What Should the Convention Commission would have to be set up or the (2009); Ingolf Pernice, The Treaty of Lisbon: Propose? Center for European Studies function incorporated within an existing (pre- Multilevel Constitutionalism in Action, 15 Policy Brief No. 31 (Mar. 2003), 4-5 avail- sumably Council-related) body. It would be Colum. J. Eur. L. 349, 351-2 (2009); Michael able at http://www.ceps.be; Erika Szyszczak, a repository for all national information and Longo, Constitutionalising Europe (2006); Experimental Governance: The Open Method act as an information conduit between each Piet Eeckhout, External Relations of the of Coordination, 12 Eur. L.J. 486, 501 (2006); Member State as well as between the Member European Union: Legal and Constitutional Martin Heidenreich & Gabrielle Bischoff, The States jointly and the Commission, but would Foundations 190-225 (2004); Gráinne de Open Method of Coordination: A Way to the not be subject to de facto ‘institutional cap- Búrca, The Institutional Development of the Europeanization of Social and Employment ture’ by the Commission, nor impede direct EU: A Constitutional Analysis, The Evolution Policies? 46 J. Common Mkt. Studies 497 Member State — Commission communication. of EU Law, 55 (Paul Craig & Gráinne de (2008). 34 See, e.g., Regulation (EC) 662/2009 estab- Búrca, eds., 1999); Deirdre Curtin, The 25 See Council Decision 2010/48/EC, supra lishing a procedure for the negotiation and Constitutional Structure of the Union: A note 11, at 55-6. The Council is the EU’s conclusion of agreements between Member Europe of Bits and Pieces, 30 Common Mkt. intergovernmental institution, whereas the States and third countries on particular matters L. Rev. 17 (1993). Commission is its supranational arm, there is concerning the law applicable to contractual 17 Art. 4(3) TEU (AA). also a European Parliament, which does not and non- contractual obligations, 2009 O.J. (L 18 Although there is no express provision for pass legislation but does increase input on 200) 25, art. 9. mixed agreements in the TEU or TFEU, the laws from the sub-national level. For more on 35 See, e.g., Regulation (EC) 847/2004 on the technique has the longstanding endorsement the basic institutional structure of the EU see negotiation and implementation of air service of the ECJ. See Opinion 1/78 (Natural Rubber Paul Craig & Gráinne de Búrca, EU Law: agreements between Member States and Third Agreement), 1979 E.C.R. 2871. Text, Cases, and Materials 31-102 (5th ed. Countries, 2004 O.J. (L 157) 7. 19 Marise Cremona, External Relations and 2011). 36 C-246/07 Comm’n v. Sweden (POPs), 20 External Competence: The Emergence of an 26 Title VI, Art. 19(1), Title IX, and Art. 166 Apr. 2010, available at http://curia.europa.eu/ Integrated Policy, in The Evolution of EU TFEU, respectively. The declaration obliquely (last accessed 29 Apr. 2010). Law 137-75, 170-1 (Paul Craig & Gráinne de refers to the European Court of Justice’s ERTA 37 Pernice, supra note 16, at 372-3, 376. Búrca, eds., 1999). doctrine of Union exclusive competence 38 Sieglinde Gstöhl, ‘Patchwork Power’ 20 Gráinne de Búrca, The Institutional “only to the extent that the provisions of the Europe: The EU’s Representation in Development of the EU: A Constitutional Convention… affect common rules previously International Institutions, 14 Eur. Foreign Analysis, in Evolution, supra note 19, at established by the European [Union].” Case Affairs Rev. 385, 403 (2009). Pernice, supra 55-81, 55. 6/64, Flaminio Costa v. ENEL, 1964 E.C.R. note 16, at 398; Antonio Missiroli, The New 21 See, e.g., Joined Cases C-181/91 and 585. EU ‘Foreign Policy’ System after Lisbon: A C-248/91 Parliament v. Council and Comm’n 27 See Council Decision 2010/48/EC, supra Work in Progress, 15 Eur. Foreign Affairs (Bangladesh aid), 1993 E.C.R. I-3685; Case note 11, at 57-60. Rev. 427, 430 et seq. (2010). C-29/99 Comm’n v. Council (Convention on 28 See Lisa Waddington, A New Era in Nuclear Safety), 2002 E.C.R. I-11221; and Human Rights Protection in the European

75 Endnotes: The Conflict Surrounding Universal Access to HIV/AIDS Medical Treatment in South Africa 15 During the presidency of Thabo Mbeki, all (2) of the Constitution mandates the state to of Zimbabwean foreign nationals apply for HIV-positive persons living in South Africa, establish and implement, within its available refugee status in South Africa, however, the regardless of citizenship status, lacked medi- resources, a comprehensive program that processing of their applications can take years. cal access to ARV treatment and prevention provides equal-access to ARV treatment for Although the South Africa Refugee Act of programs, as a result of the administration’s pregnant women and their newborns, including 1988 states that foreign nationals may retrieve lack of understanding regarding HIV/AIDS. reasonable measures for counseling, testing, their refugee status within fourteen days of It was not until the end of Mbeki’s presidency and other treatment methods.). entering the country, it often takes foreign- in 2009, that all AIDS victims would receive 23 Id.; A person receives refugee status under ers at least two months before immigration medical treatment, therapy, prevention and the South African Refugee Act of 1998 when officials may see them. Without the necessary drugs. In 2008, a group of Harvard researchers he or she has a fear of being persecuted for legal documents, it is difficult for foreign released a study quantifying how the Mbeki his or her “race, tribe, religion, nationality, nationals to live, work and receive health care administration was the principle obstacle in political opinion or membership of a particular in South Africa; thus, such immigrants often the prevention and treatment of infected per- social group, is outside the country of his or utilize asylum-seeker permits, which must be sons. According to the study, between 2000 her nationality and is unable or unwilling to renewed every three months. See Lining Up for and 2005, approximately 330,000 lives were avail himself or herself of the protection of Rights, in Equal Treatment Magazine of the lost because a practicable and timely ARV that country, or, not having a nationality and Treatment Action Campaign 8 (June 2008). treatment program was not established in being outside the country of his or her for- 32 Jonathan Crush and Godfrey Tawodzera, South Africa, and 35,000 infants were born mer habitual residence is unable or, owing to Medical Xenophobia: Zimbabwean Access to with HIV, as a result of the country’s failure such fear unwilling to return to it; or, owing Health Services in South Africa 1 (2011), to develop a mother-to-child transmission pro- to external aggression, occupation, foreign http://www.queensu.ca/samp/sampresources/ gram using the drug nevirapine. By 2007, an domination or events seriously disturbing or samppublications/policyseries/Acrobat54.pdf. estimated 5 million people were reportedly liv- disrupting public order in either a part or the 33 Id. at 2. Researchers at Human Rights ing in South Africa with AIDS, and the AIDS whole of his or her country of origin or nation- Watch contend that discrimination, including virus accounted for approximately 350,000 ality, is compelled to leave his or her place of denying access to health services on the basis deaths and was the leading cause in premature habitual residence in order to seek refuge else- of national origin or legal status, inadequate or stillbirths within the nation. Many of these where.” Refugees Act 130 of 1998, §130, ch. misleading information to both refugees and deaths could have been prevented had the 1, art. 3 (1998S. Afr.); see also, “Lining Up for health workers regarding access to ARV treat- Mbeki administration made available the freely Rights, in Equal Treatment Magazine of the ment, and charging excessive fees are several donated nevirapine drugs and ARV treatments. Treatment Action Campaign 8 (June 2008). hindrances to accessing health care in South Pride Chigwedere et. al., Estimating the Lost 24 Refugees Act 130 of 1998, ch. 5, art. 27 (b) Africa. Moreover, non-South African patients Benefits of Antiretroviral Drug Use in South (S. Afr.). are denied ARV treatment for lacking identifi- Africa, 49 J. Acquired Immune Deficiency 25 Revenue Directive from FG Muller, Chief cation documents, are charged extortionate and Syndromes 339, 410 (2008); The Henry J. Financial Officer, Republic of South Africa illegal fees, are verbally abused by health care Kaiser Family Found., The AIDS Epidemic in Department of Health, to Provincial Health professionals and often have communication South Africa 1 (2008), http://www.kff.org/ Revenue Managers, HIV/AIDS Directorates, difficulties due to language barriers. Id. at 12. hivaids/upload/7365-065.pdf. (Sep. 19, 2007). 34 Vicki Robinson, South Africa: ARVs 16 Department of Health, HIV and AIDS and 26 Id. Elusive for Refugees and Illegal Immigrants, STI Strategic Plan for South Africa, 2012- 27 International Covenant on Economic, Inter Press Service, Feb. 10, 2005, http:// 2016 (2011). Social and Cultural Rights, G.A. Res. 2200A www.aegis.com/news/ips/2005/IP050211.html. 17 World Health Organization, Towards (XXI), art. 12, U.N. Doc. A/6316 (Dec. 16, 35 Id. Universal Access: Scaling Up Priority 1966). 36 Id. AIDS Interventions in the Health Sector, 28 Committee on Economic, Social and 37 No Healing Here: Barriers to Obtaining Progress Report 2010 51 (2010), available at Cultural Rights, General Comment 14: The Health Care, supra note 15. http://www.unicef.org/media/files/Towards_ Right to the Highest Attainable Standard of 38 Odendal, supra note 13, at 11. Universal_Access_on_HIVAIDS.pdf. Health, para. 12 (b), G.A. Res. 2200A (XXI), 39 Kristin Palitza, Refugees Denied Access 18 2002 (5) SA 721 (CC) at 16 (S. Afr.). U.N. Doc. A.6316 (Jan. 3, 1976). to Health Care, Inter Press Service, July 19 S. Afr. Const., supra note 11; “(1) Every 29 Id. at para. 12 (c). 1, 2008, http://ipsnews.net/africa/nota. child has the right: (c) to basic nutrition, 30 Xenophobia is the fear and hostility asp?idnews=43029. shelter, basic health care services and social towards foreign nationals or those who are 40 No Healing Here: Barriers to Obtaining services.” S. Afr. Const., 1996 art. 28, § 1 presumed to be from countries other than that Health Care, supra note 15. (c). According to the Court, this right must be of the majority. See Marcus Low, You Have 41 Palitza, supra note 39; The Office of interpreted in the context of sections 27(1) and Rights, in Equal Treatment Magazine of the the United Nations High Commissioner for (2) of the Constitution. 2002 (5) SA 721 (CC) Treatment Action Campaign 3 (Sept. 2010). Refugees, established by the United Nations at 29 (S. Afr.). 31 A refugee is “a person who has been General Assembly in 1950, is an agency which 20 2002 (5) SA 721 (CC) at 17 (S. Afr.) granted refugee status by the South African protects and safeguards the rights of refugees (citing Gov. of the Rep. of South Africa v. Department of Home Affairs. People who worldwide, ensuring that such persons exercise Grootboom, 2001 (1) SA 46 (CC) (S. Afr.)), qualify for refugee status have to show that the right to seek asylum and find refuge in (holding that the government’s housing policy they are unable to return home because they another state, integrate, and find resettlement did not provide equal access to land, and that are being persecuted because of their race, in another country. About Us, Office of the the government failed to utilize available religion or political beliefs.” Jessica Kiddle United Nations High Comm’r for Refugees, resources in guaranteeing such rights). and Adam Malapa, Arriving, in, Equal http://www.unhcr.org/pages/49c3646c2.html 21 Id. Treatment Magazine of the Treatment (last visited Apr. 23, 2011). 22 Id. at 78 (holding that section 27 (1) and Action Campaign 3 (June 2008). Thousands 42 See Palitza, supra note 39.

76 43 “A treatment interruption is when some- concept_paper_ConfPrev.pdf. Swanström & Weissmann, supra note 45. one on antiretrovirals stops taking them. This 46 See Andrea Kupfer Schneider & 50 Conflict resolution involves the conclu- might be because the person chooses to stop Christopher Honeyman, The Negotiator’s sion of the underlying incompatibilities in a treatment or for reasons out of their control Fieldbook: The Desk Reference for the disagreement and shared recognition of each like being detained in Migrant Detention Experienced Negotiator 225 (2006); see party’s existence. Id. at 25. Centre. Some immigrants to South Africa also Jay Rothman, Resolving Identity-Based 51 PEPFAR Funding: How Is the Money arrive having had to stop treatment because Conflict in Nations, Organizations, and Spent?, Avert, http://www.avert.org/pepfar- supplies of antiretrovirals (ARVs) have run Communities 7 (1997). Additionally, the funding.htm (last visited Apr. 23, 2011). out in their home countries. Some immigrants refusal to treat foreigners and refugees with 52 About PEPFAR, The U.S. President’s have been denied treatment in the public sec- HIV/AIDS has also created a conflict based Emergency Plan For Aids Relief, http://www. tor.” Treatment Interrupted, supra note 1, at on needs, where the existential necessity to pepfar.gov/about/index.htm (last visited Apr. 11. provide and receive healthcare has been dis- 23, 2011); see, e.g., United States Leadership 44 Id.; Médecins Sans Frontières is an interna- rupted by individual prejudices of some health Against HIV/AIDS, Tuberculosis, and Malaria tional medical humanitarian organization that care professionals towards refugees, thereby Act of 2003, 22 U.S.C. §§ 7601-7682 (2003); provides emergency aid to individuals affected limiting and disrupting their access to ARV see, e.g., Tom Lantos & Henry J. Hyde United by epidemics, armed conflict natural disas- treatment. Conflict of needs is a conflict that States Global Leadership Against HIV/AIDS, ters and healthcare exclusion. Médecins Sans is based on existential things people must Tuberculosis, and Malaria Reauthorization Act, Frontières, http://www.msf.org/ (last visited have, such as food, water, shelter and secu- 22 U.S.C. §§ 7601-7682 (2008). Apr. 23, 2011). rity. Friedemann Schulz von Thun, Causes 53 Partnership to Fight HIV/AIDS in South 45 A conflict is defined as perceived differ- of Conflict, in Steps for Peace: Working Africa, The U.S. President’s Emergency Plan ences between two or more actors at the same Manual for Peace Building and Conflict For Aids Relief, http://www.pepfar.gov/coun- moment in time, traditionally involving hostile Management 32 (Cornelia Brinkman ed., tries/southafrica/index.htm (last visited Apr. 23 attitudes and behaviors between the parties, 2006). 2011). and frustration concerning resources. Nicklas 47 Swanstrom & Weissmann, supra note 45 at 54 United Nations High Comm’r for L.P. Swanström & Mikael S. Weissmann, 19. Refugees, 2011 Regional Operations Conflict, Conflict Prevention, Conflict 48 Id. Profile – Southern Africa (2011), available Management and Beyond: A Conceptual 49 Conflict management refers to the limita- at http://www.unhcr.org/cgi-bin/texis/vtx/ Exploration 7-9 (2005), http://www.silkroad- tion or containment of a conflict without page?page=4a03e30d6. studies.org/new/docs/ConceptPapers/2005/ necessarily providing an immediate resolution.

Endnotes: Book Review

1 Mexico’s Drugs Wars: Lessons and 3 Human Rights Watch, Mexico: Challenges, BBC News, Dec. 31, 2011, http:// Widespread Human Right’s Abuses in ‘War www.bbc.co.uk/news/world-latin-amer- on Drugs’ (2011). ica-16337488. 4 Department of the Army, 2 Carina Bergala, Note, The Mexican Drug Counterinsurgency (2006). War: The Case for Non-international Armed Conflict Classification, 34 Fordham Int’l L.J. 1042 (2011).

77 notes

78 notes

79 notes

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