Spring 2011 C I T Y U NIVERSITY OF N E W Y ORK Volume 3, Issue 1 I NTERNATIONALiii L A W S O C I E T Y D IGEST

International Law Society, CUNY School of Law, 65-21 Main Street, Flushing, New York, 11367, [email protected]

INSIDE THIS ISSUE The Need for a Gender Focused Adam D. Dubin (3L) 1 The Need for a Gender Focused Approach to Reconstruction in Haiti Approach to Reconstruction in Haiti By Adam D. Dubin1 Eduardo Jiménez Mayo (3L) 1 Guatemala’s Failure to Ensure On January 12, 2010, an earthquake of Indigenous Women’s Right to be Free unimaginable magnitude shook Haiti, leaving from Violence Under the International Covenant on Civil and Political Rights hundreds of thousands of people dead and millions Ryan Campbell (3L) 2 The Business Consequences of Arctic without homes and livelihoods. Families were Climate Change destroyed, children were orphaned, and millions of Alexandra Winter (2L) 8 Prosecution Beyond Borders: The people were forced into displacement camps Incorporation of Universal Jurisdiction into Primary International Law throughout the country with little or no access to Andrew Burtless (3L) 9 Corporate Self-Regulation and Its basic services. As is the case in any post-conflict or Implications for Free Speech post-disaster setting, the vulnerable are impacted Ryan Campbell (3L) 13 Biofuel, Food, Deforestation, and the most, yet often times cared for the least. In Indonesian Palm Haiti, where rape was only criminalized in 2005, Lauren Curatolo (2L) 16 Algerian Women are more than Easily Broken Membranous Sheaths: Including women and girls have faced extraordinary sexual 2 Privatized Violence Against Women in violence on a daily basis. The threats of gang the Working Definition of Torture rapes and sexual assaults, particularly in George C. Grasso (2L) 19 The Arrest Warrants for Omal Al Bashir: displacement camps, have become standard and The Forces of Compliance in daily worries of women and girls who are left with International Law and Politics 3 Brendan Michael little or no police protection. Even after an assault, Conner (1L) 26 In Loco Moralitatis: A Critique of women and girls have no recourse within the United Nations Conventions and State judicial system due to the dysfunctional state of Custody of Minors Involved in the Sex Trade both public and private institutions, as well as the Kathryn Heffron (3L) 29 Torture in Colorado: Reflections on pervasive male-dominated culture. Fahad’s S.A.M.s a Year Later In Conversation Please see Reconstruction in Haiti on page 2 IWHR Clinic Students 14 Fact-Finding Mission to Haiti

Guatemala’s Failure to Ensure Indigenous Women’s Right to be Free from Violence Under the International Covenant on Civil on Political Rights By Eduardo Jiménez Mayo The U.N.-brokered Guatemala Peace Accords of deal with a social situation characterized by intense 1996, which ended the nation’s prolonged civil war poverty and exploitation.”3 In addition, Article 4 of (1960–96)—a period in which more than 100,000 the Guatemalan Constitution guarantees the people were killed and approximately 40,000 equality of men and women, and Article 66 ensures disappeared1—includes an Agreement on the the protection of indigenous rights.4 Despite having Identity and Rights of Indigenous Peoples (the formally recognized the human rights of indigenous Agreement).2 Section II-B of the Agreement women, Guatemala remains noncompliant with its declares, “It is recognized that indigenous women international obligations to safeguard indigenous are particularly vulnerable and helpless, being women’s rights, including rights such as: to be free confronted with twofold discrimination both as from social origin, race, and gender-based violence; women and indigenous people, and also having to to be ensured the fair administration of justice; Please see Guatemala’s Indigenous Women on page 4 Page 2 CUNY ILS Digest

The Business Consequences of From Reconstruction in Haiti on page 2 Arctic Climate Change By Ryan Campbell To guide reconstruction efforts, the Haitian Government has developed the Post-Disaster Needs 4 The Inuit of Kivalina, Alaska, have begun to Assessment (PDNA). While the quickness with consider their legal options in determining how they which the PDNA was developed is laudable, it fails are going to relate to other societies and to ask the questions: “Does Haiti’s reconstruction corporations who have been contributing to climate require a gender-focused approach? And, if so, change. This is because the ocean has been what should this approach look like?” In a country swallowing their homes,1 as the increasing strength such as Haiti, where women are routinely of the waves erode their coastline. While the Inuit marginalized and only minimally absorbed into any people are a broad ethnic category, “all Inuit share a economic or social prosperity, reconstruction plans common culture characterized by dependence on that treat the population as a homogeneous body subsistence harvesting in both the terrestrial and and do not tailor policies with a gender-focused marine environments, sharing of food, travel on approach will inevitably leave women out of future snow and ice, a common base of traditional development. Under the auspices of CUNY Law knowledge, and adaptation to similar Arctic School’s International Women’s Human Rights conditions.”2 The Inuit, in their varied landscapes (IWHR) Clinic, students are working to submit a and across the lines of nations,3 have all felt the report that asks the international community to sting of global warming as keenly as any other develop an approach to reconstruction that includes indigenous group. It is difficult to summarize the a specific focus on women and girls, a vulnerable plight of the Inuit in the face of climate change as population in Haiti who have suffered and continue so much of their lives has been damaged—the to suffer unimaginable sexual violence, details of damages to the Inuit in the Petition to the marginalization, and continuous human rights Inter American Commission on Human Rights violations. Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of Gender and development are inextricably linked. the United States stretch for many pages.4 The Efforts to develop a country cannot be in the form claims range from decreased mobility resulting in of blanket policies implemented with the hope that the breakdown of tribal bonds to increased death women will benefit from reconstruction efforts. rates from the Inuit no longer being able to rely on Women require specific and targeted policies that traditional knowledge to predict when the ice is safe not only benefit them as recipients of the progress to walk on, both due to changing climate trends.5 but also as participants of the process, ensuring that What is simpler to evaluate, however, are some of the views of women are taken into account at each the legal avenues the Inuit have used to address this. stage of the reconstruction efforts and that they are empowered throughout the process.

“ It is difficult to summarize the plight of A brief overview of the legal and societal structure of Haiti demonstrates why reconstruction policies the Inuit in the face of climate change as cannot take on a population-as-a-whole approach. so much of their lives has been In Haiti, women can legally marry at fifteen years damaged—the details of damages to the of age. A 2004 United Nations Report found that at least 19% of girls between 15 and 19 were married, Inuit in the [Petition] stretch 5 divorced, or widowed. Girls who marry at such a for many pages.” young age rarely have access to education and often find themselves in violent and repressive marriages where males dominate, and wives are forced to Please see Arctic Climate Change on page 6 remain subservient to the needs of their husbands.6 The foundation Solidarité des Femmes Haïtiennes CUNY ILS Digest Page 3 found that eight out of ten Haitian women have such as: “are women represented?” and “what are been subject to domestic violence.7 While Haitian the obstacles to women seeking justice in Haiti?” law prohibits acts of violence against women, the However, until women have a chance to be part of lack of women in the police and judiciary combined this rebuilding process, women will continue to with poor enforcement of laws by judges and suffer from a lack of access to the courts, and a legal prosecutors lead to crimes against women being system where prosecutors and judges routinely rarely punished. The lawlessness that now pervades dismiss cases of rape or hand down sentences that Haiti has only intensified crimes against women— are at best a “slap on the wrist” for men who violate gangs of men roam displacement camps seeking women. girls and women of all ages to rape and assault, knowing that impunity is almost guaranteed.8 This brief overview of the need for a gender- focused approach to development only provides a As an example of why a gender-focused approach to snapshot, at best, of the plight of women and girls in development is so important, take, for example, the Haiti and the corresponding need for a issue of productivity. Increased investment in reconstruction plan that integrates gender-focused women and girls, both through education and job policies. With the development of Haiti still in its training, is statistically correlated to raising per nascent stages, the CUNY IWHR Clinic has an capita productivity and reducing headcount poverty. opportunity to demonstrate to the international Yet, without specific programs that intentionally community why a gender-focused approach cannot seek female integration, policies will not achieve be substituted for a population-as-a-whole approach. their desired results. In Sub-Saharan Africa, for This is not to say that men or boys should be left out instance, if policies were developed to integrate of the rebuilding process; in fact, they play a crucial women into fieldwork, the United Nation estimates role as allies. A gender-focused approach that total agricultural output of the country would acknowledges that the problems of women and girls increase between 6–20%.9 Alternatively, in Peru, are different from the problems of boys and men. targeted policies and investment aimed at helping Policies that treat the population as one women in one rural area develop basic computer homogeneous group are bound to fail and will only lessons has helped them work in a business taking perpetuate the human rights abuses in Haiti, orders from expatriates seeking tortillas. Per family ultimately leading to a continuation of poverty and incomes were increased substantially as a result of failed livelihoods. investment in these women.10 1 Adam Dubin is a visiting law student at CUNY School of Training, education, and economic opportunities are Law from Pace University School of Law in New York. He holds an MA in International Development Policy from the only part of the battle. The reconstruction of Haiti University of Manchester, England, and has worked on must begin by ensuring that women and girls are human rights and development issues in Cambodia, India, protected from assault, that their rights are The Gambia, and Mexico. respected, and that they are made part of the 2 In October 2010, CUNY’s International Women’s Human reconstruction process. The culture of impunity that Rights (IWHR) Clinic submitted a petition to the Inter- American Commission on Human Rights (IACHR) pervades Haiti, permitting women and girls to be requesting that it require the Haitian Government and raped on a daily basis, prevents the integration of United Nations (UN) agencies to take immediate action to this vulnerable population into the work force or address sexual violence against women and girls in educational system. One approach must be to displacement camps. On December 22, 2010, the IACHR improve physical security around the camps and this responded by issuing an unprecedented decision requiring the Government of Haiti and UN agencies to take should be coupled with the strengthening of the immediate action to ensure the safety of girls and women in judiciary from a female-centered perspective. For displacement camps. The petitioners’ request can be found example, a gender-focused approach to here: development would not only seek to rebuild a http://www.madre.org/images/uploads/misc/1287676543_I floundering judiciary, but would ask questions ACHR%20Petition%20-%20Final%20REDACTED.pdf. Page 4 CUNY ILS Digest

The IACHR decision can be found here: committing the widespread acts of brutality against http://www.law.cuny.edu/clinics/clinicalofferings/IWHRC indigenous women, the right of Guatemalan /research/Haiti_Commission_PM_Decision_2010.pdf. 3 See generally Liesel Gerntholtz, Sexual Violence: Help indigenous women to be free from such violence Haiti’s Women, HUMAN RIGHTS WATCH (Mar. 9, 2010), should be guaranteed by the State under the ICCPR. http://www.hrw.org/en/news/2010/03/10/haitis-rape-crisis Their right to be free from social origin, race, and (documenting the pervasive sexual violence against gender-based violence is rooted in several women). 4 provisions of the ICCPR, including the right to life See generally Government of Haiti, Post Disaster Needs (Article 6);8 the prohibition against torture or cruel, Assessment (2010), 9 http://www.refondation.ht/resources/PDNA_Working_Do inhumane, and degrading treatment (Article 7); and cument.pdf. the right to be free from discrimination based on 5 Organisation for Economic Co-operation and Development social origin, race, or sex (Article 26).10 In General (OECD), Social Institutions & Gender Index, Gender Comment No. 28, The Equality of Rights Between Equality and Social Institutions in Haiti, available at http://genderindex.org/country/haiti (last visited Apr. 24, Men and Women, the Human Rights Committee 2011). addressed itself explicitly to the non-derogable duty 6 Id. of governments to adequately protect women from 7 Id. gender-based violence and to recognize the social 8 See generally MADRE, Our Bodies are Still Trembling: origin and racial biases that tend to inflame such Haitian Women’s Fight Against Rape (2010), 11 http://www.madre.org/images/uploads/misc/1283377138_ violence. 2010.07.26%20- %20HAITI%20GBV%20REPORT%20FINAL.pdf. Underscoring the extraordinary significance and 9 WORLD BANK, Gender Equality & the Millennium imperative nature of the individual’s right to be free Development Goals 8 (2003), from violence is the fact that no derogation from http://siteresources.worldbank.org/INTGENDER/Publicat Articles 6 and 7 is permitted, even in time of public ions/20706126/gendermdg.pdf. 12 10 Id. emergency that threatens the life of the nation. Additionally, both Articles 613 and 714 place an From Guatemala’s Indigenous Women on page 1 affirmative obligation on the State to take measures to prevent, punish, and redress violent acts that rise and to be free from political discrimination.5 to the level of deprivation of life, torture, and cruel, inhuman, and degrading treatment or punishment. In order to properly contextualize the contemporary Lastly, insofar as the State has failed to adopt such problem of social origin, race, and gender-based affirmative measures, violations of Article 2’s15 due violence against indigenous women in Guatemala, it diligence obligations are discernible. “Under article is important to recall that the vast majority of the 2, paragraph 3 (a), of the Covenant, the State party women who suffered sexual violence during the has an obligation to ensure that the author has an Guatemalan civil war were indigenous.6 The effective remedy available . . . The State party is cruelty and brutality employed against them were also under an obligation to take effective measures heinous: “The internal armed conflict, classified as to ensure that similar violations do not occur in genocide by the United Nations, contributed heavily to the legacy of violence in Guatemala, including violence against women. With torture regularly “In order to properly contextualize the used as a military technique, the torment that contemporary problem of social origin, race, women faced was of a particularly sadistic nature. . and gender-based violence against indigenous . . The vast majority who suffered sexual violence women in Guatemala, it is important to recall were of Mayan descent (88.7 percent). It has been estimated that 50,000 women and girls were victims that the vast majority of the women who 7 of violence.” suffered sexual violence during the Guatemalan civil war were indigenous.” Even where third-party actors are found to be CUNY ILS Digest Page 5

[the] future.”16 Article 3’s17 gender equality The Committee on the Elimination of guarantees18 must also apply in this scenario Discrimination against Women (CEDAW) has because of the gender-based nature of the violence. specifically expressed concern about “the precarious situation of indigenous women and the Violence against women in Guatemala runs the lack of information provided by the State party on gamut from femicide, in the most heinous cases, to Maya, Xinca, and Garifuna women, who experience gender-motivated physical, psychological and verbal multiple and intersectional discrimination . . . .”26 abuse. In recent years, for example, numerous The culture of impunity in which violence against agents of the Office for the Defense of Indigenous indigenous women occurs, and the State’s failure to Women’s Rights have reported being frequently provide disaggregated data on femicides, are intimidated and threatened; and in some instances, indicative of the State’s neglect of the plight of have they became the victims of physical assault.19 indigenous women who are victims of social origin, The government’s statistics demonstrate that women race, and gender-based violence. constitute the overwhelming majority of the victims of intra-family violence in Guatemala, and In conclusion, Guatemala’s failure to ensure approximately a quarter of such victims are indigenous women’s right to be free from violence indigenous women.20 Violence against indigenous constitutes a breach of ICCPR Articles 6, 7, and 26. women must be understood within the larger context Moreover, the due diligence obligations of Article 2 of the femicide epidemic in Guatemala, a country in and the gender equality guarantees of Article 3 are which 4,867 women were murdered between 2000 implicated here because of the government’s failure and 2009 and 99% of femicide cases have gone to adopt effective measures to prevent, punish, and unpunished.21 redress the extensive violence directed at indigenous women based on their status as The Guatemalan government fails to address indigenous women. gender-based violence against indigenous women in several other ways. For example, the government 1 U.S. Department of State, Bureau of Democracy, Human fails to adequately prosecute sexual crimes against Rights and Labor, Guatemala: Profile of Asylum Claims indigenous women as aggravated criminal and Country Conditions Report 4 (1997), available at 22 http://pards.org/pevaluc.html (follow “Guatemala: June offenses. Moreover, the government fails to 1997” hyperlink). disaggregate the data on femicides according to race 2 Agreement on the Identity and Rights of Indigenous Peoples, and social origin to allow for a fuller appreciation of Guatemala-Unidad Revolucionaria Nacional the extent to which indigenous women are being Guatemalteca-United Nations, Mar. 31, 1995, available at 23 http://www.c-r.org/our-work/accord/guatemala/identity- victimized. The Human Rights Committee has rights.php. expressed its regret that “many States parties contain 3 Id. information regarding legislative as well as 4 República de Guatemala, Constitución de 1985 con las administrative measures and court decisions which reformas de 1993, available at relate to protection against discrimination in law, but http://pdba.georgetown.edu/Constitutions/Guate/guate93.ht ml. they very often lack information which would reveal 5 24 FORO INTERNACIONAL DE MUJERES INDÍGENAS (FIMI), discrimination in fact.” The Human Rights Mairin Iwanka Raya: Indigenous Women Stand against Committee also was responsive and expressed its Violence, 31 (2006), available at desire “to know if there remain any problems of http://www.un.org/esa/socdev/unpfii/documents/vaiwrepor discrimination in fact, which may be practiced either t06.pdf (“[T]he inclusion of indigenous women’s perspectives in the Guatemalan [Peace] Accords has not by public authorities, the community, or private materialized in policies that protect indigenous women’s persons or bodies” and “to be informed about legal rights.”). 6 provisions and administrative measures directed at See generally ARCHDIOCESE OF GUATEMALA,GUATEMALA: diminishing or eliminating such discrimination.”25 NEVER AGAIN! (1999); THE GUATEMALA COMMISSION FOR HISTORICAL CLARIFICATION, Report of the Commission for Page 6 CUNY ILS Digest

Historical Clarification, Guatemala: Memory of Silence, enjoy their rights. This is obvious in a number of articles available at (e.g. art. 3 which is dealt with in General Comment 4 http://shr.aaas.org/guatemala/ceh/report/english/toc.html below), but in principle this undertaking relates to all (last visited Apr. 24, 2011) (containing comprehensive rights set forth in the Covenant.”). studies of the Guatemalan civil war that attribute the 19 U.N. Human Rights Council, Report of the United Nations overwhelming proportion of the violence to State actors High Commissioner for Human Rights on the Activities of and reveal that Guatemalan indigenous peoples were Her Office in Guatemala, ¶ 53, UN Doc. disproportionately affected by the violence and specifically A/HRC/13/26Add.1 (Mar. 3, 2010). 20 targeted as victims. They also document the severe nature INSTITUTO NACIONAL DE ESTADÍSTICA, Violence of the violence and political discrimination practiced Intrafamiliar, against indigenous women during this period). http://www.ine.gob.gt/index.php/sociedad/44- 7 U.S. Department of State, supra note 1. sociedad/132-violenciaintrafamiliar (last visited Apr. 24, 8 International Covenant on Civil and Political Rights 2011). (ICCPR) art. 6(1), Dec. 19, 1966, 999 U.N.T.S. 173. 21 Guatemala Human Rights Commission/USA, Fact Sheet: 9 Id. art. 7. Femicide and Feminicide 21, http://www.ghrc- 10 Id. art. 26. usa.org/Programs/ForWomensRighttoLive/femicide.pdf 11 U.N. Human Rights Comm., General Comment No. 28, (last visited Apr. 24, 2011). Equality of Rights Between Men and Women (article 3), ¶¶ 22 FIMI, supra note 5, at 35 (“[T]he Accord on the Identity and 2, 4, 10, 11, 30, UN Doc. CCPR/C/21/Rev.1/Add.10 Rights of Indigenous Peoples recognizes some of the (2000), abuses perpetrated against women during the armed 12 U.N. Human Rights Comm., CCPR General Comment No. conflict and obliges the State to prosecute sexual crimes 20: Replaces General Comment 7 Concerning Prohibition against indigenous women as aggravated criminal of Torture and Cruel Treatment or Punishment (Art. 7), ¶¶ offenses.”). 8, 14 (1992); U.N. Human Rights Comm., CCPR General 23 Id. at 34 (“[T]here is no data disaggregated by indigenous Comment No. 6: Article 6 (Right to Life), ¶¶ 1, 5 (1982). status, making it impossible to know the proportion of 13 General Comment No. 6, supra note 12, ¶¶ 1, 5 indigenous women who have been the victims of these (establishing that “[t]he expression ‘inherent right to life’ attacks.”). cannot properly be understood in a restrictive manner, and 24 U.N. Human Rights Comm., CCPR General Comment No. the protection of this right requires that States adopt 18: Non-Discrimination, ¶ 9 (1989). positive measures.”). 25 Id. 14 General Comment No. 20, supra note 12, ¶¶ 8, 14 26 CEDAW Comm., Concluding Observations of the (concluding that “it is not sufficient for the Committee on the Elimination of Discrimination Against implementation of article 7 to prohibit such treatment or Women, ¶ 41, UN Doc. CEDAW/C/GUA/CO/7 (2009). punishment or to make it a crime. States parties should inform the Committee of the legislative, administrative, From Arctic Climate Change on page 2 judicial and other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment in any territory under their jurisdiction.” It further advises Against the government of the United States, Sheila that “[c]omplaints must be investigated promptly and Watt-Cloutier, an Inuk woman and chair of the Inuit impartially by competent authorities so as to make the Circumpolar Conference, on behalf of herself and remedy effective.”). her people, requested the Inter American 15 ICCPR, supra note 8, art. 2(2). Commission on Human Rights to hear her appeal.6 16 Mulezi v. Democratic Republic of the Congo (2004) AHRLR 3 (HRC 2004). She appealed for an onsite investigation of the 17 ICCPR, supra note 8, art. 3. damages, a hearing to investigate her claims, a 18 U.N. Human Rights Comm., CCPR General Comment No. report setting forth all the facts and applicable law 3: Implementation at the National Level (art. 2), ¶ 1 declaring that the U.S. is internationally responsible (1981) (“The Committee considers it necessary to draw for violating the Inuits’ rights under the American the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of Declaration of the Rights and Duties of Man and the human rights, but that States parties have also undertaken consideration of the plight of the Inuit by the U.S. to ensure the enjoyment of these rights to all individuals government.7 While the Commission rejected all under their jurisdiction. This aspect calls for specific her claims, specifically that the U.S. was liable for activities by the States parties to enable individuals to the climate change suffered by the Inuit, it decided to hold a general hearing to investigate the broad relationship between climate change and human rights.8 For her work on this lawsuit, several members of the Norwegian parliament nominated CUNY ILS Digest Page 7

Watt-Cloutier for the Nobel Peace Prize in 2007.9 pollution had stolen a page out of the tobacco industry’s playbook by creating an “echo chamber,” Similarly, the Inuit have also taken up lawsuits where the industry creates several “independent” against certain corporations and countries. In 2008, sources to reprint one finding from an obviously the city and federally recognized tribe of Kivalina biased source to supporting the industry, which will filed a suit in federal court for damages stemming often only report that the original source exists, from global warming against several oil and coal making it appear that the results are coming from companies in Native Village of Kivalina v. more than one source, as well as more reputable ExxonMobil Corp.10 In this case, the plaintiffs sources.16 These claims of conspiracy have led the requested that the companies named as defendants, American Justice Partnership (a business-oriented including 5 oil companies, 14 electric utilities, and group with membership such as the Ohio Chamber the country’s largest coal company, pick up the of Commerce, Ohio Manufacturers Association, the $400 million tab of relocating the island’s residents. Heritage Foundation and other pro-business groups This case joins Comer v. Murphy Oil USA,11 the listed on their website as members) to be critical of lawsuit alleging several companies intensified the Kivalina suit, calling the case the most hurricane Katrina, and Connecticut v. American dangerous litigation in America in a 2008 report.17 Electric Power Company Inc.,12 which seeks a court If any of the climate change cases make it to the order to reduce greenhouse gas emissions, as discovery stage, and if the energy industry lawsuits filed under common law nuisance theories possesses embarrassing internal documents similar currently going through the courts. Currently, to those that devastated the tobacco industry for Connecticut v. American Electric Power Company similar undertakings, it could force the industry to Inc. has made its way to the Supreme Court. the negotiating table, or at the very least, be Although Justice Sotomayor has recused herself due disastrous for public relations at a time when the to her serving on the appeals court panel that heard public is demanding regulation of greenhouse the Connecticut case, leaving the case open to the gasses, and have placed more pressure on the possibility of a 4-4 decision, where the Court’s government for regulation. holding will have no binding precedent while leaving the lower court’s decision to stand, this case While the defendants in Kivalina argue that federal has the potential of setting precedent that will weigh regulation like the Clean Air Act supersedes the heavily on the Kivalina plaintiffs—chances of lawsuit, this case and others like it may crack the success. industry much like the first successful asbestos litigations, leading us to the climate change The outlook for success of the Kivalina suit is equivalent of posters in the subway laden with dubious at best, with attorneys for the plaintiffs photos of mesothelioma, a law firm’s phone number openly saying that it will be an uphill battle.13 The squeezed between them next to a photo of a stern cases, however, do not need to get very far to have looking attorney, just above a caption detailing his an impact, says James Tierney, director of the latest seven-figure settlement. This could also, National State Attorneys General program at however, crack the industry in the same way as Columbia Law School.14 This is because, in tobacco companies, with company after company addition to charging the companies with effecting defecting from a unified front to settle, pay as little climate change, the Kivalina plaintiffs also allege in as possible while getting rid of their legal liability, their complaint that the industry had conspired “‘to and then turn over evidence against former co- suppress the awareness of the link’ between defendants as part of a deal. In a report issued in emissions and climate change through ‘front 2009, a global insurance giant, Swiss Re, warned groups, fake citizens’ organizations and bogus that “climate change-related liability will develop scientific bodies.’”15 These accusations have been more quickly than asbestos-related claims.”18 made by environmentalists before, that certain While the road ahead will be difficult for the companies responsible for large amounts of Kivalina plaintiffs, Michael Gerrard, director of the Page 8 CUNY ILS Digest

Center for Climate Change Law at Columbia 16 See e.g., Inter-Office Memorandum from John F. Scruggs to University, reminds us that the first tobacco David Nicoli for Philip Morris Companies Inc., The “Echo Chamber” Approach to Advocacy (Dec. 18 1998) (on file lawsuits appeared to be weak as well, and that the with the University of California, San Francisco, Legacy plaintiffs in the tobacco lawsuits lost the first few Tobacco Documents Library). cases; however, they eventually won big under 17 Southern Legal Foundation, Climate Change and the Threat different theories.19 It is not unprecedented for US of Litigation: The Most Dangerous Litigation in America: courts to force large companies or even entire Free Speech Under Attack, “Kivalina” (2008), http://www.legalreforminthenews.com/2008PDFS/AJP- industries to take responsibility for their business SLF_Kivalina_5-13-08.pdf. decisions, nor would it be unprecedented for tort 18 Id. suits to all but shut down an entire industry, 19 Id. especially after, much like in the asbestos cases, a viable alternative (e.g., solar energy, wind, waste- Prosecution Beyond Borders: mass biofuel) has already been found. The Incorporation of Universal 1 The Associated Press, Advancing Water Poses Threat to Eskimo Villages, N.Y. TIMES, Dec. 27, 2006, at A24, Jurisdiction into Primary available at 2006 WLNR 22524464. 2 Inuit Circumpolar Conference, Petition to the Inter American International Law Commission on Human Rights Seeking Relief from By Alexandra Winter Violations Resulting from Global Warming Caused by Acts and Omissions of the United States: Summary of the Universal jurisdiction as it stands now is a poorly Petition 1 (2005), http://www.inuitcircumpolar.com/files/uploads/icc- understood concept, owing partly to its modernity files/FINALPetitionSummary.pdf. and the failure of states to distinguish it from prior 3 Id. jurisdictional methods such as extraterritorial 4 Sheila Watt-Cloutier, Petition to the Inter American jurisdiction. Universal jurisdiction allows any state Commission on Human Rights Seeking Relief from to bring proceedings against a perpetrator of a Violations Resulting from Global Warming Caused by certain heinous crime regardless of the victim’s Actions and Omissions of the United States (2005), 1 available at nationality or the location of the injury. As Mary http://www.arnoldporter.com/resources/documents/Inuit_p Robinson, former United Nations High etition.pdf. Commissioner on Human Rights, explained, 5 Id. “[U]niversal jurisdiction is based on the notion that 6 Id. 7 certain crimes are so harmful to international Id. 8 Hearing to Probe Climate Change and Inuit Rights, interests that states are entitled—and even REUTERS (Feb. 21, 2007, 5:14 PM), obliged—to bring proceedings against the http://www.reuters.com/article/idUSN204267120070223. perpetrator, regardless of the location of the crime 9 Bunny Nooryani, Gore, Watt-Cloutier are Nobel Prize or the nationality of the perpetrator or the victim.”2 Candidates for Climate Work, BLOOMBERG.COM (Feb. 1, A core principle of universal jurisdiction is that 2007, 6:17 AM), http://www.bloomberg.com/apps/news?pid=newsarchive& states may exercise this authority without having 3 sid=aitdeJI9Ezk0. any territorial or nationality restrictions; however, 10 Native Village of Kivalina v. ExxonMobil Corp., 663 differences arise when considering the obligation of F.Supp.2d 863 (N.D. Cal. 2009). 11 the state to exercise universal jurisdiction. The Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), Final Report on the Exercise of Universal opinion vacated pending reh’g en banc, 598 F.3d 208, appeal dismissed, 607 F.3d 1049 (5th Cir. 2010). Jurisdiction in Respect of Gross Human Rights 12 Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309 (2d Offences found that “[u]nder the principle of Cir. 2009), certiorari granted by, Am. Power Elec. Co. Inc. universal jurisdiction, a state is entitled, or even v. Connecticut, 131 S. Ct. 813 (2010). 13 required to bring proceedings in respect of certain John Schwartz, Court as Battlefields in Climate Fights, N.Y. serious crimes, irrespective of the location of the TIMES, Jan. 26, 2010, at A1, available at 2010 WLNR 1705147. crime, and irrespective of the nationality of the 4 14 Id. perpetrator or the victim.” 15 Id. Please see Prosecution Beyond Borders on page 11 CUNY ILS Digest Page 9

Corporate Self-Regulation and U.S.-based technology companies have also Its Implications for Free Speech implicated potential human rights violations.8 Yet By Andrew Burtless for all of its public scrutiny of technology companies’ complicity with governmental “Just like any other global company, Yahoo must violations of privacy and free speech, Congress has ensure that its local country sites operate within the not enacted any laws to guide companies that are laws, regulations and customs of the country in pressured to cooperate with the demands of States at which they are based.”1 the expense of human rights. Congress has considered two bills that would have imposed civil “Like other global organizations [Microsoft] must and criminal punishments for cooperating with such abide by the laws, regulations and norms of each kinds of governmental requests, but both efforts country in which we operate.”2 have been side-lined.9

“Don’t be evil.”3 Formed just two years ago, Global Network Initiative (GNI) is a self-described “multi- On April 20, 2004, Shi Tao, an editor of Dangdai stakeholder group of companies, civil society Shang Bao, a newspaper in Human Province, organizations (including human rights and press attended a meeting with the newspaper’s editors to freedom groups), investors and academics.”10 The discuss the Communist Party’s instructions on how group was formed to “create[] a collaborative to report the 15th anniversary of the military approach to protect and advance freedom of crackdown in Tiananmen Square. The meeting’s expression and privacy”11 in the information main topic was a stern warning from the communications technology (ICT) sector. At first Communist Party’s propaganda department glance, GNI represents an extraordinary opportunity forbidding any media coverage of the June 4th to bring greater accountability to the unregulated anniversary. Later that night, Tao used an actions of multi-national juggernauts such as anonymous e-mail account, huoyan- Google, Microsoft, and Yahoo. Through its self- [email protected], to send his notes detailing imposed obligations, GNI requires the largest this directive to a New York-based website, market actors12 to adopt and apply public and Democracy Forum. Just seven months later, Tao uniform practices incorporating international was detained and sentenced by the Chinese norms13 when considering appropriate responses to government for “illegally providing state secrets governmental requests that might limit freedom of overseas.” The sentencing court noted that its speech. finding of guilt relied partially upon information provided by Yahoo, an American corporation, linking Tao to the e-mail.4 According to the “Yet for all of its public scrutiny of sentencing judge, Yahoo provided the court with the IP address of Tao’s computer, Tao’s account technology companies’ complicity with information, Tao’s telephone number, and the location of Tao’s terminal.5 Tao is currently governmental violations of privacy and 6 serving out a ten-year prison sentence. free speech, Congress has not enacted any News of a well-known American corporation’s laws to guide companies that are pressured cooperation with the prosecution provoked outrage in the United States. Congress initiated an to cooperate with the demands of States investigation of Yahoo’s role in the Chinese prosecution and Representatives publicly chastised at the expense of human rights.” Yahoo.7 Although the focus of attention for this incident was Yahoo, the actions of other large Page 10 CUNY ILS Digest

Yet upon closer examination, this seemingly system, requirements for shipping rough diamonds, powerful coalition of corporate forces and non- and a method of tracking diamonds after export.17 governmental actors offers little reassurance to At the heart of KPCS’s efficacy lies the human rights advocates concerned with reining in participation of the member states that certify the state abuses. Putting aside the non-binding diamonds they export as “conflict free” and only language of the GNI’s imprecisely worded import diamonds from one of the seventy-four other Implementation Guidelines and the noteworthy lack member countries that agree to do the same. of participation of numerous critical corporate actors, GNI’s Inaugural Report exposes the serious There are several obvious features that distinguish weakness of such a self-regulatory process. While the sale of rough diamonds from internet providing an attractive public relations message to censorship. KPCS is concerned with a far less investors who “recognize that censorship and pervasive international problem than corporate surveillance pose direct threats to the long-term compliance with governmental censorship. Its viability of ICT sector companies”14 and providing modest goal is simply to prevent the legal sale of a “competitive advantage to GNI member “blood diamonds,” the less than 0.1% of the companies by demonstrating that they are living up world’s total diamond production that are used by to their commitments and earning the trust of rebel movements to finance armed conflicts against stakeholders such as users, investors and civil governments.18 Also, whereas KPCS is concerned society organizations,”15 the Report does little to with the regulation and certification of a limited ensure that ICT companies have actually complied physical product originating from a specific source, with international human rights standards. With no the regulation of an intangible commodity such as benchmarks for success, no uncensored public internet services poses unique challenges. Given assessments of member activities, and—perhaps the pervasiveness of internet censorship and most importantly—no capacity to actually punish invasions of privacy, it is likely that such a behavior that aids and abets a state’s violations of regulatory system could only focus upon the largest international norms, GNI is unlikely to prevent or ICT companies. meaningfully curb future corporate complicity in oppressive government efforts at limiting free Nonetheless, KPCS’s structure and state oversight speech. might prove to be a useful, if ambitious, template for the regulation of global ICT companies. By In order to impose significant limitation upon importing KPCS’s reliance upon state cooperation companies’ intent to do business with the with other interested stake-holders, a coalition of governments of emerging markets, more than a participant nations could agree to “certify” ICT voluntary code of conduct is required. The companies that agree to adhere to certain core Kimberly Process Certification Scheme (KPCS), an principles regarding freedom of speech, privacy, international certification scheme that regulates and censorship devised by human rights groups, trade in rough diamonds, offers a viable blueprint academics, and other civil society organizations. for needed regulation. Comprising states and The coalition of member states could then condition regional economic integration organizations that are access to a company’s services within its borders on eligible to trade in rough diamonds—at present the company’s “certification” of compliance with totaling forty-nine participants representing these basic principles. As with KPCS, a set of seventy-five countries,16 with the European monitoring dispute-resolution procedures could be Community counting as a single participant—the adopted among the member states to ensure Kimberly Process offers a comprehensive compliance. Such a multi-stakeholder process regulatory solution to an international problem. could gain adherence through statements of support Consisting of three main areas of monitoring and in United Nations General Assembly resolutions control, KPCS administers an internal control and the General Comments of the Human Rights Committee. CUNY ILS Digest Page 11

Although the regulation of corporate limitation GLOBAL NETWORK INITIATIVE, 13, upon free speech on the internet is doubtlessly more http://www.globalnetworkinitiative.org/cms/uploads/1/GNI _annual_report_2010.pdf. complex than the simple regulation of “blood 13 diamonds,” it is not beyond reach. However, Implementation Guidelines, GLOBAL NETWORK INITIATIVE, http://www.globalnetworkinitiative.org/implementationgui without the assistance of numerous state actors to delines/index.php (last visited Apr. 24, 2011) (defining enforce specific domestic measures discouraging “freedom of expression” “using Article 19 of the Universal such action, any self-regulatory efforts are almost Declaration of Human Rights (UDHR) and Article 19 of certain to fail. As the home for many of the world’s the International Covenant on Civil and Political Rights (ICCPR).”). largest internet companies, the United States must 14 GLOBAL NETWORK INITIATIVE, supra note 12, at 13. take a leading role in developing a process 15 Id. at 12. 16 involving other states to ensure that the internet Frequently Asked Questions,KIMBERLEY PROCESS, remains a place of free expression and not http://www.kimberleyprocess.com/faqs/index_en.html oppression. (last visited Apr. 24, 2011). 17 See Joseph Hummel, Diamonds Are a Smuggler’s Best Friend: Regulation, Economics, and Enforcement in the

1 Global Effort to Curb the Trade in Conflict Diamonds, 41 Yahoo ‘Helped Jail China Writer’, BBC NEWS, Sept. 7, INT’L LAW. 1145, 1159 (2007). 2005, http://news.bbc.co.uk/2/hi/4221538.stm (last updated 18 Id. Sept. 7, 2005) (quoting a Yahoo! spokesperson responding to allegations that the company serves as a police informant to Chinese authorities). 2 Id. (quoting a Microsoft spokesperson). From Prosecution Beyond Borders on page 8 3 Code of Conduct, GOOGLE INVESTOR RELATIONS, http://investor.google.com/corporate/code-of-conduct.html Conventional criminal law is the primary source for (last updated Apr. 8, 2009). 4 Id. international criminal law. Until recently, few 5 Shi Tao Verdict 10, (2005) states had national legislation that incorporated http://lawprofessors.typepad.com/china_law_prof_blog/file universal jurisdiction, but now an increasing s/ShiTao_verdict.pdf (“Account Holder information number of states are enacting legislation to allow furnished by Yahoo Holdings (Hong Kong) Ltd . . . .”). for the exercise of universal jurisdiction.5 As noted, 6 Danny O’Brien, Attacks on the Press 2010: Internet universal jurisdiction is based primarily on the Analysis, COMMITTEE TO PROTECT JOURNALISTS (Feb. 5, 2011, 12:56 AM), http://cpj.org/2011/02/attacks-on-the- nature of a particular crime. The serious crimes to press-2010-internet-analysis-danny-obrien.php. which universal jurisdiction attaches include war 7 The Associated Press, Yahoo Criticized in Case of Jailed crimes, crimes against humanity, genocide, and Dissident, N.Y. TIMES, Nov. 7, 2007, at C3, available at torture.6 2007 WLNR 21954899. 8 See Derek E. Bambauer, Cybersieves, 59 DUKE L.J. 377, 418–19 (2009) (describing the responses of Google, Historically, war crimes have been significantly Microsoft, Cisco, Secure Computing, Websense, and regulated. The World War II tribunals were forms Fortinet to various governmental demands for internet of collective enforcement against war crimes, as censorship and filtration). Moreover, the rate of were the Geneva Conventions of 1949, which government-sponsored internet censorship is high. provided universal jurisdiction over war crimes.7 Country Profiles, OPENNET INITIATIVE, http://opennet.net/research/profiles (last visited Apr. 24, Crimes against humanity were first defined in 2011) (finding that approximately 40 countries filter the Article 6(c) of the Nuremburg Charter, which internet in varying degrees). entailed the prosecution of such crimes as subject to 9 See Global Online Freedom Act, H.R. 4780, 109th Cong. the jurisdiction of the Tribunal. Similarly, (2006) [hereinafter GOFA 2006]; Global Online Freedom Act, H.R. 2271, 111th Cong. (2009). prosecution for crimes against humanity was 10 GLOBAL NETWORK INITIATIVE, established in the statutes creating the Tribunals for http://www.globalnetworkinitiative.org (last visited Apr. former Yugoslavia and Rwanda, as well as the 24, 2011). International Criminal Court (ICC). 11 Id. 12 “[T]he revenue of GNI’s current company members . . . exceeds that of some nations.” Inaugural Report 2010, Page 12 CUNY ILS Digest

Genocide was first legally defined in the 1948 was intended to complement state prosecutions, and, Convention on the Prevention and Punishment of therefore, can only exercise its jurisdiction when the Crime of Genocide (Genocide Convention).8 states are unwilling or unable to prosecute or Three statutes after the Genocide Convention have investigate suspected offenses. It is also limited to incorporated genocide as a crime with universal referrals from state or non-state parties. While the jurisdiction.9 The International Criminal Tribunal ICC’s scope may not constitute universal authority, for Rwanda held in Prosecutor v. Ntuyahaga that situations in which the Security Council refers universal jurisdiction exists for the crime of crimes to the jurisdiction of the ICC may constitute genocide.10 Some commentators argue that the an exercise of universal jurisdiction as all parties in crime of genocide falls under customary that instance would be non-state, non-parties international law11 while several states have exercising jurisdiction beyond the confines or enacted legislation with universal reach.12 authority of the state.16

Finally, torture has been recognized as a The exercise of universal jurisdiction presents a conventional international crime since the 1984 modern approach to the ability of states to prosecute Convention against Torture and Other Cruel, perpetrators of heinous crimes that are repugnant to Inhuman or Degrading Treatment or Punishment humanity at large. The theory of universal (CAT).13 This convention impliedly provides for jurisdiction has the potential to be an unassailable the universal jurisdiction for crimes of torture. The source for international authority, though a degree authority of a state to extradite or permit another of uniform and cohesive application is required first. party to prosecute is the hallmark of universal It is to be hoped that the international community jurisdiction principles. The CAT allows torture to will recognize universal jurisdiction as a potential be universally prosecuted; thus, all signatory parties source of accountability and recourse for abhorrent to the convention may bring proceedings against crimes, and continue the global effort to ensure crimes of torture. fundamental rights of humanity to everyone.

1 The creation of the Rome Statute of the ICC14 in CHANDRA LEKHA SRIRAM,GLOBALIZING JUSTICE FOR MASS 2002 was the culmination of the international ATROCITIES:AREVOLUTION IN ACCOUNTABILITY 14 (2005) community’s effort to create an institution that (citing INT’L LAW ASS’N, COMM. ON INT’L HUMAN RIGHTS LAW AND PRACTICE, Final Report on the Exercise of would oversee criminal tribunals. The ICC has a Universal Jurisdiction in Respect of Gross Human Rights “universal scope” over specified crimes, crimes that Offenses, 2 (2000)). are characterized as “most serious crimes of 2 Mary Robinson, The Princeton Principles on Universal concern to the international community as a Jurisdiction: Foreword, 15–16 (2001), available at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf. whole,” including genocide, crimes against 3 15 MITSUE INAZUMI, UNIVERSAL JURISDICTION IN MODERN humanity, and war crimes. The ICC, however, INTERNATIONAL LAW:EXPANSION OF NATIONAL JURISDICTION FOR PROSECUTING SERIOUS CRIMES UNDER INTERNATIONAL LAW 25 (2005). 4 Sriram, supra note 1. “It is to be hoped that the international 5 See generally A. Hays Butler, The Growing Support for community will recognize universal jurisdiction Universal Jurisdiction in National Legislation, in UNIVERSAL JURISDICTION:NATIONAL COURTS AND THE as a potential source of accountability and PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL recourse for abhorrent crimes, and continue the LAW (Stephen Macedo, ed., 2004) (No state practice of universal jurisdiction exists without the existence of global effort to ensure fundamental rights of national legislation recognizing it, even where an humanity to everyone.” international body of law provides for such jurisdictional basis). 6 Stephen Macedo et al., The Princeton Principles on Universal Jurisdiction: Introduction and Principles, at Princeton, Principles 2 (1) (2001), available at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf (others include piracy, slavery, and apartheid). CUNY ILS Digest Page 13

7 M. Cherif Bassiouni, The History of Universal biodiversity, and increase large-scale deforestation, Jurisdiction and Its Place in International Law, in amongst other harms. There are several ways to UNIVERSAL JURISDICTION:NATIONAL COURTS AND THE harvest biomass for biofuel that can minimize the PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL LAW 52 (Stephen Macedo, ed., 2004). destructive potential in the environment such as 8 Convention on the Prevention and Punishment of the Crime from waste biomass or from biomass grown on of Genocide, art. II, Dec. 9, 1948, 102 Stat. 3045, 78 degraded and abandoned agricultural lands planted U.N.T.S. 277. with perennials.1 Sources such as Indonesia’s palm 9 See generally Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 808, U.N. SCOR oil, however, have led to human and environmental 48th Sess., 3217th mtg., 1–2, U.N. Doc. S/RES/808 rights abuses while defeating the original purpose (1993); Statute of the International Criminal Tribunal for of switching to biofuel, which is to lower carbon Rwanda, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d emissions. mtg., Annex, U.N. Doc. S/RES/955 (1994); and Rome Statute of the International Criminal Court (ICC), July 17, 1998, U.N. Doc. A/CONF. 183/9, 37 ILM 1002, 2187 The European Parliament has passed energy U.N.T.S. 90. directives to require European Union (EU) member 10 Prosecutor v. Ntuyahaga, Case No. ICTR-90-40-T, states to reach 10% renewable energy by 2020, with Decision on the Prosecutor’s Motion to Withdraw the biofuels as a qualifying source, thus becoming a Indictment (Mar. 18, 1999). 11 major incentive to expand biofuel plantations. Theodor Meron, International Criminalization of Internal Environmentalists are concerned that this will lead Atrocities, 89 AM. J. INT’L L. 89, 93 (1995) (“It is increasingly recognized by leading commentators that the to Indirect Land Use Change (ILUC). ILUC crime of genocide may also be cause for prosecution by includes indirect environmental harms such as any state.”). biofuels pushing out food crops, which then 12 Butler, supra note 5, at 67. requires the production of replacement food (if it is 13 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, indeed possible) and in turn increases carbon U.N. GAOR 39th Sess., Supp. No.51, U.N. Doc. A/39/51 emissions, and is the subject of a report published (1984) entered into force June 26, 1987, draft reprinted in by the European Commission to the European 23 I.L.M. 1027 (1985). Parliament last December.2 Since the passage of 14 The ICC was established by the Rome Statute of the these directives, the EU has passed new International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) (ICC requirements for biofuel amidst environmental and Statute). human rights groups’ claims that additional biofuel 15 Id. arts. 6–8. could accelerate climate change as well as deprive 16 Id. art. 13(b). the poor of food.3 To address some of these concerns, the EU now requires that biofuel must save at least 35% of greenhouse gasses compared with oil and cannot come from recently cleared Biofuel, Food, Deforestration, land.4 Two key palm producers, Malaysia and Indonesia, have been balking at new environmental and Indonesian Palm regulations the EU is attempting to enforce, By Ryan Campbell claiming that they are discriminatory and threatening to take their case to the World Trade 5 Biofuel are fuels that are derived from organic Organization. Although hotly contested, these material from living or recently deceased plants or regulations are only a few of many steps that need animals. It was supposed to be the green dream—it to be taken to address the environmental and social would allow us to significantly reduce our realities of biofuel plantations. emissions with minimal lifestyle changes. These views were quickly altered, however, as the practice of growing crops for biofuel quickly proved to Please see Indonesian Palm on page 17 increase our carbon footprint, put stress on food supplies, pollute our environment, decrease Page 14 CUNY ILS Digest

In Conversation: Fact-Finding Mission to Haiti

In March, ILS sat down with International Women’s had to go there to confirm that these are the Human Rights (IWHR) clinic students April Marcus, conditions and that these are true stories so that we Brenda Hasslinger, and Adam Dubin, who shared could put them into the Petition. their experiences working on gender-based violence issues in Haiti. In particular, we talked about the April: Yes, we looked for specific incidents, details fact-finding mission that was conducted last fall. that we could put into the precautionary measures, We hope this conversation will offer some insights how egregious the conditions were. There were two for those who are interested in practicing parts to the fact-finding: (1) going to see what was international law as well as joining the IWHR clinic going on the ground; and (2) going to see what the during their third year at CUNY Law. government’s take was on what was going on the ground. The latter played a big part of our mission. How did planning the fact-finding mission begin? We went to the United Nations. We met with members of the government to see what the April: The way the clinic ran this year was that disconnect was between what the grassroot when we all showed up the first day of class, women’s groups were saying on what was Professor Davis and Professor Albisa went over the happening in the camps and what the government projects that we may want to sign on to. We got to thought was happening in the camps. choose which one we wanted to work on. By chance Brenda, I and another student went to Haiti. What does it mean for the IACHR to formally adopt recommendations? Are they obligated to Brenda: And I actually wasn’t even supposed to be take affirmatives steps to address these on the project. recommendations?

April: The other projects were all over-subscribed. April: Haiti signed up to be a part of the Inter- Professor Davis didn’t say that we were going to American Commission on Human Rights. They are Haiti when she pitched the project because she bound to the treaties that the Commission has didn’t want people to sign up just for the trip. adopted. We decided to file an emergency petition Basically, after the first class, we were told that we for precautionary measures. This is a preliminary were going to Haiti. I was stunned. I didn’t know injunction, containing measures that have to happen that the clinic involved travel at all. now. Then we can go back to work on the formal issues and procedures. The precautionary measures Brenda: You were a little apprehensive at first. say that all these women in these 22 camps are subject to immediate threat of sexual violence. This April: Yes. I follow the news and I knew what is the first time that unnamed women are parties to a happened in Haiti but I never in my wildest dreams petition. Usually, a petition requires a named would think that I would be traveling to Haiti. I had person but we are saying all these women in these some safety concerns. camps are under immediate threat. We based the immediate threat of sexual violence on the What kind of facts were you looking for during frequency and numbers of incidents and the the mission? egregiousness of what we saw in the camps. So we filed the Petition in November after we came back. Brenda: We had affidavits on the incidents of sexual The IACHR then summarized our Petition and violence that we were putting into the Petition to the asked the Haitian government to respond. The Inter-American Commission on Human Rights of Haitian government workers’ rights.21 The reports the Organization of American States (IACHR). We went on to detail human rights violations, land and had CUNY ILS Digest Page 15 didn’t respond. Since they didn’t respond, the Brenda: I’m writing a Universal Periodic Review IACHR granted all of our measures, basically report for Haiti. In October, Haiti is being verbatim of what we asked. reviewed. I’m writing a shadow report for MADRE to highlight human rights violations and provide Brenda: The Petition gives the government facts and recommendations for government recommendations and calls awareness to a certain responses. situation that is going on in the country. What does this fact-finding mission mean in a April: I think Professor Davis is doing a great job larger, global context? on working to implement the precautionary measures. That is the focus now. We won a great Adam: The whole world is paying attention to decision. Professor Davis is trying to work with the Haiti. In a way, Haiti represents what is going on in Haitian government to implement the many other developing countries. I think if Haiti recommendations. This way, the dynamic can implement what we have been advocating for, established between our work and the Haitian this would signal a sense of how important gender government is not as adversarial. and development really are—theoretically and practically. If you pay attention to gender and What are the next steps? implement measures according to international norms, then there is a real chance for reform. I April: As I mentioned, Professor Davis really think this is something important for the world, wants to collaborate with the Haitian government. especially for countries that are reconstructing. Some collaborate strategies include using other ministries in the Haitian government (for example, April: And Professor Davis has said to us that, the judicial ministry) along with the women’s what we do now after getting a favorable decision, ministry and having gender issues be streamlined and how to implement them—this will be a into an entire governmental plan. And Adam is blueprint for what others can do after winning writing a report. precautionary measures. We have a contact at the IACHR who may be asked to write a blueprint for Adam: I’m writing a report on reconstruction in implementing sexual violence precautionary Haiti, with someone at NYU, in connection with the measures decisions. This seems to be a pretty new need to include gender into the future development situation. plans of Haiti. Right now, there is a reconstruction fund, managed by the World Bank and donor governments to oversee reconstruction in Haiti. “The whole world is paying attention to Haiti. The problem is that there isn’t a real gender component in the funding plan. There’s an In a way, Haiti represents what is going on assumption that women will automatically benefit in many other developing countries. from the fund. But based on the circumstances of Haiti, that women are so marginalized, it won’t I think if Haiti can implement what we have been happen by default. Just because policies are advocating for, this would signal a sense of how implemented doesn’t mean that they will spill over to women because we clearly see that in other parts important gender and development really are— of the world, this just doesn’t happen. This report is theoretically and practically.” divided into two parts. First is on how gender development is so important and second is looking at other parts of the Haitian government and where gender can be inserted to benefit women. Page 16 CUNY ILS Digest

Adam: And this corners governments. Because if During the Benjedid regime, Islamists began the implementation of precautionary measures works gaining momentum, angered by the inability of the out, governments can’t escape the reality that gender government to adhere to the economic promises can’t be left out of development. they made.6 The group gradually attained governmental power and an increased number of What is the most meaningful aspect of this followers. In 1989, Abassi Madani and Ali Belhadj experience that you can take away? founded the Islamic Salvation Front (FIS) against the constitutional prohibition of religious parties.7 Brenda: I think the precedent set is huge. It was for The adoption of a state religion under Boumedienne 22 camps of unnamed people. It was a new was a valid exercise of the state’s authority. By precedent for the history of precautionary measures. 1990, the FIS promulgated Islamic-based laws that I think it’s the beginning of something much bigger. were in direct conflict with the constitution, including: closing co-educational schools; April: I think what this experience has taught me in enforcing the wearing of the veil for all women; and my legal career is that it’s not just one win or one forbidding women from working in certain areas of aspect of any certain situation. You have to keep employment.8 pressing forward and there are so many things you have to do. Once you achieve something, there is The “. . . FIS consistently supported violence as a always something more to do. It’s a constant means to imposing their agenda.”9 In Jane Doe I, et evolving process that you have to be diligent and al. v. Islamic Salvation Front (FIS) and Anwar keep on top of. If you are not going to as an Haddam, the Center for Constitutional Rights and advocate, no one really is. CUNY’s International Women’s Human Rights Law Clinic brought suit on behalf of nine Algerian Women are more than individuals against the FIS in the U.S. District Court for the District of Columbia, in December 1996. Easily Broken Membranous The Plaintiffs alleged that the FIS sought to instill Sheaths: Including Privatized terror in Algerian women, often advancing attacks ranging from raping, killing, butchering, Violence Against Women in the dismembering, burning, and torturing them in a Working Definition of Torture variety of inhumane ways.10 By Lauren Curatolo Let us not forget that during the nearly eight-year Battle of Algiers (1954–1962), Algerian women Algeria: A Brief History were on the frontline of the fight for independence,11 Algerian women became the tabula French occupation of Algeria ended on March 18, rasa upon which the newly sovereign Algeria 12 1962, after nearly 130 years of colonialism.1 Shortly would paint its future. It is my opinion that after, power was handed to the “National Liberation Algeria saw feminists as a threat. The Algerian Front” FLN and its President Ahmed Ben Bella.2 feminists needed to be subordinated in order to After Bella’s imprisonment in 1965, Defense achieve both a national state and religious and Minister Houari Boumedienne took control.3 traditional solidarity. This subordination was Boumedienne’s control of Algeria came with a strict codified in, and promulgated by, the Family Code adherence to the constitutional precepts of socialism of 1984. as well as Islam as the state’s official religion.4 Upon Boumedienne’s death in 1978, Colonel Chadli Please see Algerian Women on page 20 Benjedid, also an FLN member, took office.5 CUNY ILS Digest Page 17

From Indonesian Palm on page 13 deforestation.13 The industry has been accused of using highly carcinogenic herbicides (banned in On the issue of food security, which is the both Europe and the United States), human rights availability of food and one’s access to it, author violations, and burning forests as a cheap method of and journalist Michael Grunwald has made a direct clearing land for palm oil plantations.14 This loss of connection to biofuel crops: “by diverting grain and habitat will likely lead to the extinction of the Asian oilseed crops from dinner plates to fuel tanks, elephant, the Sumatran tiger, and the orangutan of biofuels are jacking up world food prices and Borneo, with plantation owners going so far as to endangering the hungry. The grain it takes to fill an pay 150,000 rupiah (about $17 as of March 2011) SUV tank with ethanol could feed a person for a for the right hand of an orangutan—used to prove a 6 year.” He observes that, “The U.N.’s World Food kill—because orangutans eat young palm fruit.15 Program . . . [called] the rising costs for food 7 nothing less than a global emergency.” Biofuels The palm oil industry in Indonesia has also often hit the stage when changing climate trends have abused local indigenous populations. To produce already taken a serious toll on food supplies. For crude palm oil, the palm harvest must get to a crude example, droughts in Russia severely harmed their palm oil mill within 24 hours, while it is still fresh, 8 2010 cereal yields. When Russia imposed an which requires at least 4,000 hectares of land, export ban on cereal in August, international cereal though more commonly 10,000 to 40,000, to 9 prices spiked. In response to the drought in Russia achieve a profit.16 The palm oil industry has bribed knocking out wheat crops, Alwyn Hughes, chief or used local community leaders as agents to executive and owner of Ensus, one of the largest acquire large parcels of land while ordinary local biorefineries in England, said, “We are planning at residents have rarely been involved, which is often this stage to get all our [wheat] requirements from contrary to their right to communal land.17 In areas 10 the UK but the position is tighter this year.” This where local farmers and indigenous groups have will leave the poor contending with Ensus’ demanded more equitable distribution of benefits, biorefinery for whatever is left of the wheat harvest they have often been violently suppressed by this year, or to try to move on to other food, putting military personnel, as well as regional police and pressure on another source, and exacerbating the even gangs, recruited by palm oil companies to already dire problem of global food shortages. work as security.18 Recently, the Center for Democracy and Human Rights Studies, the Institute Indonesia, a key producer of palm oil for biofuel, for Policy Research and Advocacy, the Indonesian currently has a significant deforestation problem: Forum for the Environment, and 22 other NGOs land use change (i.e. burning forests to clear for presented reports and claims that the development plantations) counts for 80% of carbon emissions of plantations resulted in conflicts between the 11 from Indonesia. Converting rainforests to produce companies and the locals.19 The National food crop-based biofuels, such as biofuels derived Commission for Human Rights, an organization that from palm fruit, can create a biofuel carbon debt by promotes and monitors human rights in Indonesia, releasing 17 to 420 times more CO2 than the annual said that 30% of the 5,000 complaints filed with it greenhouse gas reductions that these biofuels would were related to land conflicts between companies 12 provide by displacing fossil fuels. Indigenous and and people living nearby.20 The NGOs also farming-and-gathering communities on the frontier reported that 12 of the Roundtable on Sustainable (groups who are often politically powerless and Palm Oil members, a self-described “international know little about their legal rights) are dependent organization of producers, distributors, upon these forests, which are being destroyed. conservationists and other stakeholders” of palm Indonesia has lost roughly half of its forest since oil, were involved in conflicts centered on the legal 1967, and the palm oil industry is the main driver of status of land and workers’ rights.21 The reports went on to detail human rights violations, land Page 18 CUNY ILS Digest snatching practices, and practices bordering on http://www.energy.eu/publications/Indirect-Land-Use- slavery in the treatment of workers, including Change-from-increased-Biofuels-Demand.pdf. See also children.22 Virginia H. Dale et al., Biofuels: Implications for Land Use and Biodiversity, ECOLOGICAL SOCIETY OF AMERICA, 1–4 (Jan. 2010), Fraud runs rampant in this already flawed system of http://biology.kenyon.edu/courses/ENVS%20112/ESA%20 granting concessions for palm development in Biofuels%20Report_VH%20Dale%20et%20al.pdf. Indonesia. Often, when a company is given a 3 EU Biofuels Growth on Hold as Green Benefits Queried, concession on the land to plant palm trees, the REUTERS (William Hardy ed., Nov. 10, 2010), http://www.reuters.com/article/idUSTRE6A948O2010111 company will clear trees instead of planting. On 0. this subject, Willie Smits, creator of SarVision 4 Pete Harrison, Malaysia, Indonesia Warn EU Hampers Palm (satellite mapping service that charts the rainforest’s Oil Trade, REUTERS (Jane Baird ed., Nov. 16, 2010), decline), weighed in, “When you look closely at the http://af.reuters.com/article/energyOilNews/idAFLDE6AF 14C20101116?pageNumber=2&virtualBrandChannel=0. areas where companies are getting permission for 5 23 Id. oil palm plantation are those of high-conservation 6 Michael Grunwald, The Clean Energy Scam, TIME, Mar. 27, forest . . . What they’re really doing is stealing the 2008, timber because they get to clear it before they plant. http://www.time.com/time/magazine/article/0,9171,172597 But the timber’s all they want; hit and run with no 5,00.html. 7 intention of ever planting.”24 Id. 8 Janet Raloff, Food Security Wanes as World Warms, US NEWS AND WORLD REPORT, Dec. 2, 2010, Palm oil development has been a loss for human http://www.usnews.com/science/articles/2010/12/02/food- rights, indigenous rights, and created a variety of security-wanes-as-world-warms.html. environmental problems aside from generating 9 Id. 10 more carbon than the biofuels would displace. The EU Biofuels, supra note 3. 11 Jessica Leber, Indonesia Walks a ‘Tricky’ Path Toward rush for biofuel as a potential solution to climate Growth and Sustainability, N.Y.TIMES, Mar. 22, 2010, change has placed pressure on the development of http://www.nytimes.com/cwire/2010/03/22/22climatewire- resources, such as palm oil, in rainforests that are indonesia-walks-a-tricky-path-toward-growth-22444.html. sparsely populated with small communities of 12 Fargione, supra note 1, at 1235. 13 people, some of whom have lived in the rainforest Fidelis E. Satriastanti, Indonesian Greens Push Plantation Moratorium, THE JAKARTA GLOBE, Apr. 6, 2010, all their lives with little or no contact with the http://www.thejakartaglobe.com/news/indonesian-greens- outside world. Large companies that steal large push-plantation-moratorium/367995. 14 tracts of land from these communities to produce Id.; LOST IN PALM OIL (Journeyman Pictures 2007). palm oil are often met with little resistance. This all 15 Ian MacKinnon, Palm Oil: The Biofuel of the Future takes place on the vast frontier, where even earnest Driving an Ecological Disaster Now, THE GUARDIAN, Apr. 4, 2007, attempts at law enforcement are difficult, if not http://www.guardian.co.uk/environment/2007/apr/04/energ impossible. In short, while biofuels may have had y.indonesia. some promise, the way in which they have been 16 Narihisa Nakashima, Oil Palm Development and Violence: pursued has not been an environmental solution, A Case Study of Communal Land Struggle in Kapar, West but, rather, an environmental and social problem. Sumatra, Indonesia, HOSEI UNIVERSITY REPOSITORY, 1 (2010),

1 http://rose.lib.hosei.ac.jp/dspace/bitstream/10114/5148/1/ib Joseph Fargione, Land Clearing and the Biofuel Carbon unka11_nakasima-na01.pdf. Debt,SCIENCE MAGAZINE (Feb. 29, 2008), 17 Id. http://www.sciencemag.org/content/319/5867/1235.full. 18 2 Id. Robert Edwards et al., Indirect Land Use Change from 19 Human Rights Violations Top List of Issues. THE JAKARTA Increased Biofuels Demand: Comparison of Models and POST, Nov. 12, 2010, Results for Marginal Biofuels Production from Different http://www.thejakartapost.com/news/2010/11/12/human- Feedstocks, EUROPEAN COMMISSION,JOINT RESEARCH rights-violations-top-list-issues.html. CENTRE,INSTITUTE FOR ENERGY, 6–12 (2010), 20 Id. 21 Id. CUNY ILS Digest Page 19

22 Id. scholar in international criminal law, has 23 “Oil palm” and “palm oil” are used interchangeably in the maintained that the ICC’s outstanding arrest industry. 24 warrants for Al Bashir may be enforced through the MacKinnon, supra note 15. Genocide Convention for several reasons, notably because the Genocide Convention is a treaty with more signatories than the Rome Statute and it may have a stronger political hook than the Rome Statute.6 The Arrest Warrants for Omar Al Bashir: The Forces of Compliance in International Law and Politics “Arguably, the Genocide Convention may By George C. Grasso supplement or even serve in place of the jurisdiction

of the ICC, which is generally conferred Introduction by the Rome Statute.” On July 12, 2010, the International Criminal Court (ICC) issued a second arrest warrant for the Sudanese President Omar Al Bashir for three counts of genocide.1 This newer warrant was preceded by a 2009 warrant for war crimes and crimes against The Conflict in Darfur and the humanity.2 Since the ICC is not a supranational Arrest Warrants for Al Bashir court and has no policing powers or prisons, its jurisdiction is only complementary to that of its Sudan has a long and bloody history of violence and signatories; thus, implementing and enforcing the turmoil.7 The current conflict in Darfur began in obligation of States to cooperate with the ICC’s 2003, when the National Congress Party began mandates is one of the ICC’s most important terrorizing specific tribes in response to a rebellion challenges.3 Numerous national and international brought on by economic marginalization.8 The political pressures may have prominent roles in conflict has lead to the deaths of around 300,000 compelling many signatories of the Rome Statute of people and the displacement of almost 4 million.9 the ICC (Rome Statute or Statute) to arrest Al Although Sudan is not a party to the Rome Statute, Bashir and extradite him to the ICC. These political the ICC acquired jurisdiction over Sudan on March pressures could reinforce certain persuasive legal 31, 2005, through United Nations Security Council arguments for jurisdiction and compliance, thereby (UNSC) Resolution 1593.10 In 2008, subject to expediting the execution of the warrants for Al some criticism,11 the ICC's prosecutor, Luis Bashir. Moreno-Ocampo, petitioned the ICC to issue a public arrest warrant for the Sudanese President, One legal argument for the ICC’s jurisdiction over Omar Al Bashir, on the charges of genocide, war both signatory and non-signatory States is founded crimes, and crimes against humanity. The in the Convention on the Prevention and Prosecutor’s request followed a multiyear Punishment of the Crime of Genocide (Genocide investigation by his office amid mass public outcry Convention).4 Arguably, the Genocide Convention for action on the situation in Darfur.12 may supplement or even serve in place of the jurisdiction of the ICC, which is generally conferred Please see Omar Al Bashir on page 23 by the Rome Statute.5 Göran Sluiter, a learned Page 20 CUNY ILS Digest

From Algerian Women on page 16 are governed by the Family Code, which is based in part on the Shariah.”18 In 2005, the Algerian The Family Code of 1984, CEDAW, and a Simple government did modify the Family Code. The new Truth Found in the Shadows: Family Code includes provisions such as: women’s Algerian Women are Resisting right to choose their husbands; to conserve their heritage; to ask for divorce; and to manage their Article 222 of the The Family Code of 1984 (the own properties and the right for inheritance.19 Code) states that the Shari’ah, the religious law of 13 Islam, is the primary source of the law. The While the modification of the Code was viewed as a Code’s “most hotly contested” provisions include: victory for many Algerian women who were the legal recognition of polygamy (Article 8); the demanding modification, it has simultaneously formal nature of the daughter’s obligation to seek created adversity in other women’s lives.20 permission for her first marriage (Article 8); a “Women were told that by repealing the 1984 law woman’s “marriage guardian” (her father, a close on marriages, they and their children would finally male relative, or a judge) is responsible for the enjoy rights and protections in the case of divorce. termination of her marriage, if one is sought (Article Promises of what the new law would bring ranged 11); the father may oppose the marriage of his from ‘equality of the sexes’ to ‘strengthening the daughter if this is in her best interest (Article 12); family unit.’”21 However, the new Family Code did the dowry is a unilateral gift made upon signature of nothing except create new ways for husbands to the marriage contract and regarded as a constituent circumvent their obligations to their former wives element of marriage by the Code (Article 33); and a and children.22 marriage entered into without a dowry shall be 14 declared null and void (Article 15). Yet in what has been deemed a “quiet revolution,” Algerian women have carved out modes of Women’s civil and political rights are covered by resistance to the marginalization and Algeria’s adoption of CEDAW, ratified into commodification of their physical, sexual, Algerian law in June 1996 on its government’s emotional, and psychological lives. Women have terms. “Algeria’s international commitments prevail increasingly become self-agents, transcending 15 over domestic law.” According to Algeria’s traditional notions of a woman’s work, and instead country report, once the convention “becomes part advancing to leadership positions in both the of domestic law, and acquires . . . an authority that economic and political worlds in Algeria. “Women supersedes that of law,” it “may be asserted by [any] make up 70 percent of Algeria’s lawyers and 60 16 Algerian citizen against domestic jurisdiction.” In percent of its judges. Women dominate medicine. an attempt to align CEDAW with the already Increasingly, women contribute more to household 17 promulgated Family Code, Algeria submitted income than men. Sixty percent of university reservations and declarations upon its ratification of students are women . . . . ”23 the treaty; in adopting a treaty, a state may add reservations that limit the scope of its force However, while progress is being made, it seems as domestically so as not to conflict with its national though persisting traditional notions of a woman’s laws. The CEDAW country report submitted by place in Algerian society are burying autonomy. Algeria states, “As in all the societies that make up While filming a documentary in Algeria in 2005, I the Arab-Muslim world, the legal status of women met and became friends with Karina, a young in Algeria presents a dichotomy. Thus, the Algerian woman who embodies resistance. constitutional principle of the equality of the sexes Speaking in French, Karina told me, “We all have a is scrupulously respected when it comes to civil and virginity, men and women alike. But, once a political rights: women have the status of full woman loses her virginity, it’s over. It’s a label. citizens. With respect to their personal status, they It’s a catastrophe.”24 CUNY ILS Digest Page 21

Truth and Reconciliation: The CEDAW “Both CEDAW and the African Charter fail to solve the issues of domestic violence, rape, and other Problem and a Possible Solution atrocities that women face on a daily basis, including less overt but equally degrading forms The reservations to CEDAW submitted by the of oppression, like placing value Algerian government limit its effectiveness in on a woman’s ‘preserved’ hymen.” asserting Algerian women’s rights. Johanna Bond, a legal scholar who focuses on international human rights law and gender and the law, states that The repression of women’s sexuality and the although CEDAW has proven to be a useful tool for promulgations seeking to codify that repression activists, “[I]t fails to acknowledge that women may such as the Family Code are forms of torture. As face multiple forms of discrimination, such as that international human rights and gender rights scholar based on, among other things, race, ethnicity, and activist, Rhonda Copelon, has demonstrated: culture, religion, or sexual orientation.”25 Further, a (1) including intimate partner violence in the state’s reservations to CEDAW often shield the definition of torture and cruel, inhuman, and state’s family, customary and religious laws—like degrading treatment; (2) recognizing gender-based the Family Code and Shari’ah law—from scrutiny violence as an independent violation of international by international monitoring bodies.26 human rights; and (3) recognizing gender-based violence along with torture as a violation of norms An alternative to CEDAW could be The Protocol to having preemptory status,” are steps toward placing the African Charter on the Rights of Women in more direct pressure on the states to eliminate non- Africa (the Protocol). Algeria has, to date, failed to 27 egalitarian texts that perpetuate the decentralization ratify the Protocol. Bond suggests three reasons 30 of women’s rights. Redress needs to be offered to why the Protocol can serve as a significant and women who suffer at the hands of privatized monumental tool in the promotion of women’s violence, to ensure that women’s economic rights in Africa, “First, the Protocol offers dependency and men’s social and cultural credibility within the region. African women 31 entitlements are eradicated. This eradication played a large role in drafting and promoting the needs to happen through state enforcement. Protocol. Second, the Protocol has strong substantive provisions for the protection of Yet we must also address the violence of women’s rights in the region . . . Third, the Protocol prevention. Preventing women from entering into provides a . . . procedural right which . . . could lay the world of sexuality prior to marriage, preventing the foundation for engaging grassroots discourse women from being free agents, entitled to their that promotes women’s voices in the ongoing bodily integrity, and instituting a state-wide process of cultural definition and the articulation of protectionist model such as the Family Code, meant customary norms.”28 The objective of the Protocol to keep women domesticated and silenced, their is to close the gaps that are found in CEDAW and hymens intact, should be seen as a form of torture, the African Charter, “seeking to correct CEDAW’s or subject to challenge under international norms neglect of culture and the African Charter’s because of the way it facilitates tortious acts against prioritization of culture to the neglect of gender Algerian women. Violence extends beyond the equality.”29 This egalitarian treaty establishes physical, and is protected, perhaps even encouraged, substantive provisions that, if ratified by Algeria, in the confines of the home. This violence and could serve as a base for the advancement of systematic oppression stems directly from state- women’s rights in Algeria. Both CEDAW and the enforced interpretations of Shari’ah that have African Charter fail to solve the issues of domestic essentially kept women on the peripheries of violence, rape, and other atrocities that women face economic, political, social, and sexual autonomy. If on a daily basis, including less overt but equally women are able to hold the state directly degrading forms of oppression, like placing value accountable when they are deprived of economic, on a woman’s “preserved” hymen. social, political, and sexual freedoms, it will be a Page 22 CUNY ILS Digest

9 way of actualizing complete bodily autonomy. Shadow Report on Algeria, INTERNATIONAL WOMEN’S HUMAN RIGHTS LAW CLINIC AND WOMEN LIVING UNDER MUSLIM LAWS, http://www.nodo50.org/mujeresred/argelia- Including ideas such as mandated hymen shadowreport.html (last visited Apr. 24, 2011). preservation in the definition of torture invites the 10 Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3, 5–6, following concern: doing so will dilute the concept of (D.D.C. 1998) (though eventually losing the suit). torture in international law. However, if another term 11 Daniele Djamila Amrane-Minne. Women and Politics in were to be used for what is happening to women Algeria from the War of Independence to Our Day, 30 RES. IN AFR.LITERATURES 3, 62–63 (1999). globally, we would further marginalize issues that all 12 Tabula rasa is a Latin term that translates in English to states should be addressing without reservation. We “blank slate.” It is the epistemological theory that should redefine “torture” as the exertion of control knowledge develops from one’s perceptions and and power over another human being that experiences. I use it here to explain that Algeria’s intentionally, knowingly, recklessly, or negligently independence allowed the state to create a new foundation, and women’s bodies were a blank slate upon which the causes, or seeks to cause, severe mental, physical and Algerian government could build a virginal, new state, on psychological pain or suffering. At one end of the its own terms. 13 spectrum, there is penetration against one’s will: ISLAMIC FAMILY LAW IN A CHANGING WORLD:AGLOBAL rape. At the other end of the spectrum, there is state- RESOURCE BOOK 165 (Abdullahi A. An-Na’im ed., 2002). 14 mandated abstinence. To force sex upon a woman, Id. 15 Id. at 3, 8. or to deny her the choice of having sex, ultimately 16 Id. at 8. strips her of bodily autonomy and integrity; thus, 17 Id. both should be considered forms of torture. 18 Id. 19 Boutheine Gribaa et al., Strengthening Women’s Leadership Conclusion and Participation in Politics and Decision Making Process in Algeria, Morocco and Tunisia: Mapping of the Situation, 12 (2009), At the hands of liberalization, Algerian women were http://www.womenpoliticalparticipation.org/upload/public tucked into the corners of their country’s Constitution ation/publication2.pdf. and given Shari’ah-imposed duties through the 20 Achira Mammeri, Algerian Women Cite Problems with Family Code. International treaties have been Implementation of New Family Code, MAGHAREBIA (Feb. 15, 2010), ineffective in advancing women’s rights as human http://www.magharebia.com/cocoon/awi/xhtml1/en_GB/fe rights and in centralizing the various forms of the atures/awi/reportage/2008/02/15/reportage-01 overall dehumanization of women in Algeria. (testimonials by the women adversely affected by the Violence against women, in both the private and change are given voice). 21 public spheres of the Algerian state, must be Id. 22 Id. internationally recognized as torture. 23 Id. 24 ALGERIA, THE FREE:WHEN SILENCE SPEAKS is a 1 Chafika Kahina Bouagache, The Algerian Law on documentary film I co-filmed and co-edited in 2005–2006. Associations Within Its Historical Context, 9 INT’L J. NOT- I traveled to Algeria and worked in the shelter SOS FOR-PROFIT L. 37, 39 (2007). Femmes en Detresse. 2 Id. 25 Johanna E. Bond, Gender, Discourse, and Customary Law 3 Id. at 39. in Africa 83 S. CAL. L. REV. 509, 524 (2010). 4 Id. 26 Id. at 527. 5 Id. at 42. 27 Id. 6 FEDERAL RESEARCH DIVISION,ALGERIA:ACOUNTRY STUDY 28 Id. at 522–524. 62 (Helen Chapin Metz ed., 1994). 29 Id. at 542. 7 Id. 30 Rhonda Copelon, Recognizing the Egregious in the 8 BENJAMIN STORA,ALGERIA, 1830-2000: A SHORT HISTORY Everyday: Domestic Violence as Torture, 25 COLUM.HUM. 253 (Jane Marie Todd trans., 2001); Peter A. Samuelson, RTS. L. REV. 291, 353 (1994). Pluralism Betrayed: The Battle Between Secularism and 31 Johanna E. Bond, Gender, Discourse, and Customary Law Islam in Algeria’s Quest for Democracy, 20 YALE J. INT’L L. in Africa, 83 S. CAL. L. REV. 509, 552 (2010). 309, 352 (1995). CUNY ILS Digest Page 23

From Omar Al Bashir on page 19 New York and California) and cities (including Los Angeles and Chicago) have followed suit and The ICC’s procedure for procuring a warrant adopts divested their public pension funds from a standard of “reasonable grounds” reminiscent of corporations doing business with Sudan.22 the familiar U.S. standard of probable cause.13 In 2009, in response to Moreno-Ocampo’s request, the Additionally, many NGOs have urged States to pre-trial chamber of the ICC issued an arrest warrant comply with the mandate of the ICC in executing for Al Bashir on five counts of crimes against the warrants issued for Al Bashir.23 For example, humanity (murder, extermination, forcible transfer, the International Bar Association (IBA) (a NGO 14 torture, and rape) and two counts of war crimes member of the Coalition for the International (intentionally directing attacks against a civilian Criminal Court (CICC)) has issued a news release population as such or against individual civilians not urging all member States of the Rome statute to 15 taking part in hostilities, and pillaging). The court adopt implementing legislation in order to ensure stopped short of issuing a warrant for the crime of compliance with the Statute.24 genocide. However, on July 12, 2010, after appeal, the pre-trial chamber issued an arrest warrant for Al The continuing and reverberating voices and Bashir charging three counts of genocide. The 2010 pressure from the CICC, various NGOs, activists, arrest warrant for three counts of genocide consists of and political leaders are essential pieces of the the charges of genocide by killing, genocide for puzzle to ensure compliance with the ICC. In other causing serious bodily or mental harm, and genocide words, these institutions and actors have a unique by deliberately inflicting conditions of life calculated power to influence government to take the right 16 to bring about physical destruction. steps towards compliance with the ICC.

Prominent Political Forces The Role of Article VI of the Genocide Convention The conflict in Darfur has attracted widespread attention by various media outlets, activists, NGOs, The Genocide Convention, which took effect in the politicians and celebrities. The conflict has spawned wake of WWII in 1951, currently binds 140 States 17 18 19 books, movies, and activist groups in addition to by voluntary consent of its terms. Over 60 years sparking general public outrage. Some cynics have since its inception, the Genocide Convention is even argued that the crisis in Darfur has received too beginning to take on a new and profound role, 20 much attention. where, by its own terms, it confers jurisdiction on the brand-new ICC. In the United States, several organized and valiant political efforts have been initiated in response to the Article VI of the Genocide Convention states: crisis in Darfur. In some instances, political efforts have pressured the ICC to take meaningful action and Persons charged with genocide flex its muscles. And in other instances, the actions or any of the other acts of the ICC have mobilized activists and other entities enumerated in article III shall be to fight for compliance with the Court’s mandates, or tried by a competent tribunal of at least to stand in solidarity with the ICC. the State in the territory of which the act was committed, or For instance, in 2007, just ahead of the ICC's by such international penal Prosecutor’s request for arrest warrants for Al Bashir, tribunal as may have the United States Congress passed, and President jurisdiction with respect to those Bush signed, a bill authorizing the divestment of Contracting Parties which shall public monies from companies doing business with have accepted its jurisdiction.25 the Sudanese government.21 Many states (including Page 24 CUNY ILS Digest

Sluiter persuasively argues that “[T]here is much individual who has been indicted for genocide), the more to the ICC than its statute. The ICC is also an result would be impunity for genocide and the instrument in the enforcement of the Genocide convention would be violated. A violation of the Convention.”26 Sluiter reasons that all UN member convention could plausibly (and should) result in States have, by virtue of the UN Charter, accepted serious political, diplomatic, or economic the authority of the United Nations Security Council consequences. (UNSC). He continues to argue that: Finally, the fact that the Genocide Convention “[T]he word ‘accepting’ in that provision is contemplated an “international penal tribunal” is identical to the language in Article VI of the substantial evidence that the signatories of the Genocide Convention. Therefore, when the Genocide Convention intended that the jurisdiction Security Council . . . submits a situation to conferred by the treaty be automatically absorbed the ICC, thereby creating jurisdiction for by whatever international penal tribunal should be that Court, UN members must be regarded created in the future. In other words, the signatories as having accepted the jurisdiction of the of the Genocide Convention foreshadowed and ICC in respect of that situation. This brings anticipated the creation of international criminal the ICC, in relation to the situation in Darfur courts. Therefore it is logical to believe that and when an arrest warrant includes allowing the ICC jurisdiction over genocide would accusations of genocide, within the full be in line with the intent of the Genocide reach of Article VI of the Genocide Convention. Convention. All contracting parties to that Convention are members of the UN and all Sudan, while not a member of the Rome Statute, is of them can be said to have accepted the a signatory of the Genocide Convention. This fact jurisdiction of the Court.”27 may have important political and legal implications. If Sluiter’s argument is correct and achieves This reasoning is persuasive for several reasons. international support, many States may be even First, Sluiter is correct in pointing out that the more encouraged to apply external political pressure UNSC is supreme over the General Assembly’s on Khartoum to secure compliance with the decision-making authority. Although many States, Genocide Convention, thereby, the warrants issued scholars, and activists often quarrel with the notion by the ICC. that five superpowers retain so much dominance over decisions that may very well affect the entire world, the fact is that the UNSC’s authority and veto power are settled as all member States accepted the UNSC’s role upon ratifying the UN “[T]he fact that the Genocide Convention contemplated Charter. As controversial as the UNSC’s role may be, it is an indisputable part of the structure of the an “international penal tribunal” is substantial evidence UN. In this case, the UNSC resolution referring the that the signatories of the Genocide Convention intended Sudan matter to the ICC confers jurisdiction upon the Court, which compels compliance based on the that the jurisdiction conferred by the treaty be Rome Statute and Article VI of the Genocide Convention. automatically absorbed by whatever international penal

Second, the intent and purpose of the Genocide tribunal should be created in the future.” Convention are the swift and efficient punishment and deterrence of genocide.28 Should a signatory of the Genocide Convention neglect to carry out its duties under the Convention (i.e. arresting an CUNY ILS Digest Page 25

Conclusion (follow “Press Releases (2005)” hyperlink for the correct press release). 13 See Prosecutor v. Al Bashir, No. ICC-02/05-01/09 OA, at In any case where international law is at issue, it is n.99. important to explore political climate in conjunction 14 Rome Statute, supra note 5, art. 7(1). with the relevant international law because political 15 Id. art. 8(2)(e). and legal forces supplement and compensate for 16 Id. art. 6. 17 each other. Where one fails to bind or persuade, the See generally DON CHEADLE &JOHN PRENDERGAST,NOT other may provide the missing link. Where one ON OUR WATCH:THE MISSION TO END GENOCIDE IN DARFUR AND BEYOND (2007); JEN MARLOWE,DARFUR seems unjust, the other may provide explanation or DIARIES:STORIES OF SURVIVAL (2006). 18 justification. If justice is the ultimate goal, than the See e.g.,DARFUR NOW (Crescendo Productions, Mandalay law cannot be viewed in a vacuum; all things must Independent Pictures, Participant Productions 2007); The Devil Came on Horseback (Break Thru Films 2007). be considered. In the case of Al Bashir, if the 19 political winds are in tune and the legal arguments See e.g.,THE ENOUGH PROJECT, http://enoughproject.org (last visited Apr. 24, 2011); SAVE DARFUR, for the jurisdiction and authority of the ICC http://SaveDarfur.org (last visited Apr. 24, 2011). resonate with clarity, then the “forces of 20 Andrew Heavens, Is Sudan’s Darfur Crisis Getting too compliance” will lead to the execution of justice. much Attention?, REUTERS (Oct. 26, 2009, 5:23 AM), http://blogs.reuters.com/africanews/2009/10/26/is- 1 Prosecutor v. Al Bashir, No. ICC-02/05-01/09, Decision on sudans-darfur-crisis-getting-too-much-attention/. 21 the Prosecutor’s Application for a Warrant of Arrest Sudan Accountability and Divestment Act of 2007, 50 Against Omar Hassan Ahmed Al Bashir (July 12, 2010), U.S.C. § 1701, Pub. L. 110-174, §§ 1 to 12, Dec. 31, available at http://www.icc- 2007, 121 Stat. 2516, as amended Pub. L. 111-195, Title cpi.int/menus/icc/situations%20and%20cases/situations/sit II, § 205(a), July 1, 2010, 124 Stat. 1344 (2008). 22 uation%20icc%200205/related%20cases/icc02050109/icc0 Get Involved with Divestment, THE ENOUGH PROJECT, 2050109?lan=en-GB. http://www.enoughproject.org/take_action/divestment 2 See id. (last visited Apr. 24, 2011). 3 23 COALITION FOR THE INTERNATIONAL CRIMINAL COURT, See COALITION FOR THE INTERNATIONAL CRIMINAL Cooperation Agreements and Enforcement – Background, COURT, supra note 3. 24 http://www.iccnow.org/?mod=agreements (last visited Apr. News Release, International Bar Association, IBA Says All 24, 2011). States Parties to the ICC Must Adopt Implementing 4 Göran Sluiter, Using the Genocide Convention to Strengthen Legislation as a Matter of Urgency (Nov. 14, 2008) Cooperation with the ICC in the Al Bashir Case, 8 J. INT’L available at CRIM.JUST. 365, 382 (2010) (“There is a very strong case http://www.iccnow.org/documents/IBA_NEWS_RELEA to be made that contracting parties [of the genocide SE.pdf. 25 convention] have an unconditional duty to arrest and Convention on the Prevention and Punishment of the surrender Al Bashir to the ICC, irrespective of whether Crime of Genocide, art. VI, Dec. 9, 1948, 102 Stat. 3045, they are a party to the ICC or not.”). 78 U.N.T.S. 277. 26 5 See Generally Rome Statute of the International Criminal Sluiter, supra note 4, at 379. 27 Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force Id. at 373–72. 28 July 1, 2002). Id. at 371. 6 See Sluiter, supra note 4, at 382. 7 See About the Conflict in Darfur and Southern Sudan, THE ENOUGH PROJECT, http://www.enoughproject.org/conflict_areas/darfur_southe rn_sudan/about_the_conflict (last visited Apr. 24, 2011) (providing a detailed history of Sudan’s internal conflicts). 8 Id. 9 Id. 10 S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005). 11 Antonio Cassese, Flawed International Justice for Sudan, Entry to The World in Words, PROJECT SYNDICATE (July 15, 2008), http://www.project- syndicate.org/commentary/cassese4/English. 12 See Press Release, Int’l Criminal Court, The Prosecutor of the ICC Opens Investigation in Darfur, ICC-OTP-0606- 104-En (June 6, 2005), available at http://www.icc- cpi.int/Menus/ICC/Press+and+Media/Press+Releases/ Page 26 CUNY ILS Digest

analogues in the main Convention’s Article 1 and In Loco Moralitatis: A Critique of 6 United Nations Conventions and 34, the Worst Forms of Child Labour Convention Articles 2 and 3,7 and Article 3(c)-(d) of the State Custody of Minors Palermo Trafficking Protocol.8 The OPSC adopts Involved in the Sex Trade the presumption of victimhood for minors involved By Brendan Michael Conner in the sex trade as encompassed by these prior agreements, and so also distinguishes this 1 presumption from the standard of proof required for The second Optional Protocol on the Sale of adult survivors as defined by the Palermo Children, Child Pornography, and Child Prostitution 2 Trafficking Protocol, namely proof of force, fraud, (OPSC) to the United Nations Convention on the 9 3 or coercion. In other words, minors who seek out Rights of the Child (UNCRC) entered into force on transactional sex as a result of limited economic January 18, 2002, appending a concern for choices, and who have never come in contact with a “trafficked” minors to the most widely ratified third party such as a pimp, manager, or trafficker, treaty in the history of the world. The OPSC, are, categorically, defined as victims of trafficking. however, is not a rights-based treaty in the sense of This classification stands in opposition to recent the main Convention or its partner protocols, but is data prioritizing the social and economic motivators instead a blueprint for international cooperation in of minors’ participation in the sex trade, such as a the enforcement of criminal laws to prevent the recent Department of Justice-funded New York City “sale of children, child prostitution, and child 4 population estimate that found 84% of minors pornography.” While the OPSC includes involved in the sex trade did not have a pimp, provisions concerning such crimes as organ manager, or trafficker.10 Additionally, the focus on harvesting and forced legal labor, the protocol has non-transgender girls operates to exclude boys and primarily served to target consumers and procurers transgender minors from services. The same study of pornography and transactional sex involving found that 54% of minors involved in the sex trade persons under the legal age of majority, which in New York City are boys,11 and yet not one case according to most State parties is 18—defined as 5 was known of a boy under 16 who was provided “children” or, in this article, “minors.” In its non-secure detention under the New York Safe preoccupation with enforcement, the protocol has Harbor Act when being prosecuted for prostitution sidelined the human rights concern of (and boys make up 46% of the prostitution cases in decriminalizing minors’ participation in the sex family court).12 Instead, boys under 16 in New trade, which has resulted in involuntary removal York’s family court system are “placed” in the from parental custody, secure detention, and infamously abusive Bridges detention center or deportation. These outcomes are contrary to the group homes when charged with prostitution-related “best interest” of those affected, which ought to be a crimes. Regardless of numbers or geography, the determination made by minors themselves. To this presumption of victimhood harms both young end, efforts to support young sex workers and survivors of trafficking and young sex workers the survivors of trafficking must prioritize voluntary world over by subjecting both populations to an and client-centered services, shelter and long-term enforcement approach. affordable housing options—including secure housing for those minors who desire it as Supporting this proposition, the Global Network of protection—living wage alternatives, and safer Sex Work Projects (NSWP) conducted a study that working conditions for those who choose to trade found the presumption of trafficking in the OPSC sex as the best choice among limited economic had impliedly justified the criminal prosecution, choices. secure detention, and deportation of those minors in the sex trade who actually do choose sex work as The OPSC is not unique in its approach to the “sale the best choice among limited economic choices, in of children,” but instead inherits its classification of addition to young survivors of trafficking caught “children” in the sex trade from definitional CUNY ILS Digest Page 27

up in the enforcement apparatus targeting (Article 5); cooperation in international consumers and procurers.13 Additionally, adult sex investigations (Article 6); and the seizure and workers are, in many countries that have adopted confiscation of assets (Article 7). the enforcement approach, prosecuted as alleged procurers for sharing workplaces, clients, and safety More recently, the Committee on the Rights of the advice with young people who trade sex. Child (CRC), the monitoring committee of the Moreover, in the same study, NSWP expressed UNCRC, has taken the “best interest” in the concern for the dangers of mandatory reporting in “treatment by the criminal justice system” language the absence of evidence of force, fraud, or coercion, a step further. Under the Convention, and by the collateral consequences of criminal charges for extension the Convention’s optional protocols, State minors, and, even in countries where sex work is parties must first report to the monitoring regulated or decriminalized, the discrepant committee two years after acceding to the application of age of consent laws between the legal Convention and then every five years.16 The CRC age for consensual sex and the legal age for has increasingly criticized State parties for retaining transactional sex. laws criminalizing minors for prostitution. For instance, the United States was encouraged in its While the text of the OPSC itself does not explicitly most recent review, in 2008, to “[e]nsure that all contemplate the prosecution and involuntary persons below the age of 18 [who are] victims of commitment of minors to secure detention, its any of the offences under the Optional Protocol are failure to prohibit punitive and rehabilitative as such neither criminalized nor penalized at [the] prosecution and detention amounts to a crime of federal or state level.”17 Additionally, the CRC has omission. At best, OPSC’s Article 8 may be said to proposed a third Optional Protocol to establish a source UNCRC’s Article 3, § 1 imperative that state communications procedure, which would allow and private welfare intervention must consider the minors and their representatives to file individual “best interest” of the minor as a primary complaints for violations of rights under the consideration.14 More specifically, Article 8, § 3 of UNCRC.18 While this proposal would not eliminate the OPSC states: criminal prosecution and involuntary commitment, it would create an enforcement and accountability “States Parties shall ensure that, in the mechanism that may serve to temper the “best treatment by the criminal justice system of interest” to approximate a voluntary and client- children who are victims of the offences centered model as advocated in this article, and as described in the present Protocol, the best arguably supported by the rights-based framework interest of the child shall be a primary of the UNCRC. consideration.”15

The operative phrase, “treatment by the criminal “While the text of the OPSC itself does not justice system,” however, remains undefined in the text of the protocol itself. Even when read explicitly contemplate the prosecution and generously, the “best interest” framework is involuntary commitment of minors to secure anchorless without a rights-based approach that prioritizes minors’ self-determination. Thus, the detention, its failure to prohibit OPSC’s principal function is that of a punitive and rehabilitative supplementary treaty to the UNCRC for the enforcement of criminal laws against consumers prosecution and detention amounts and procurers, specifically UNCRC Article 34. A to a crime of omission.” summary of the OPSC contents illustrates the point: enumerated offenses (Article 3); jurisdictional guidelines (Article 4); extradition proceedings Page 28 CUNY ILS Digest

There remains, however, no prohibition in the text an earlier age of majority, with exceptions for of OPSC itself upon the criminal prosecution and enumerated benchmarks (e.g., compulsory education through primary school, prohibiting capital punishment involuntary commitment of minors involved in the and life imprisonment for those under 18)). sex trade, despite the liberal interpretations of the 7 See Convention Concerning the Prohibition and Convention’s monitoring committee. Therefore, Immediate Action for the Elimination of the Worst an enforcement protocol may prove irrelevant for Forms of Child Labour, adopted June 17, 1999, ILO minors involved in the sex trade. Additionally, the No. 182, arts. 2–3, available at http://www.unhcr.org/refworld/docid/3ddb6e0c4.html. alternative enforcement apparatus, the United 8 See Protocol to Prevent, Suppress and Punish Trafficking Nations Standard Minimum Rules for the in Persons, Especially Women and Children, 19 Administration of Juvenile Justice, is only a Supplementing the United Nations to the Convention procedural safeguard and not a substantive bar, Against Transnational Organized Crime, arts. 3(a), (c), and so it is insufficient to protect minors from Nov. 15, 2000, 2237 U.N.T.S. 319. 9 Id. art. 3(a). abuses of state power. Therefore, there are two 10 RIC CURTIS ET AL., THE COMMERCIAL SEXUAL available remedies: (1) an amendment to OPSC EXPLOITATION OF CHILDREN IN NEW YORK CITY, that is specifically crafted to shield minors from VOLUME ONE:THE CSEC POPULATION IN NEW YORK criminal and civil commitment proceedings related CITY:SIZE,CHARACTERISTICS, AND NEEDS 77 (2008), to their involvement in the sex trade; and (2) a available at www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf. third Optional Protocol, which would similarly 11 Id. at 37. 12 institute a prohibition upon involuntary AMY MUSLIM ET AL., THE COMMERCIAL SEXUAL commitment of minors involved in the sex trade, EXPLOITATION OF CHILDREN IN NEW YORK CITY, but also incorporate the proposed complaint VOLUME TWO:FORMATIVE EVALUATION:THE NEW communications procedure that functions for YORK CITY DEMONSTRATION 17 (2008), available at www.ncjrs.gov/pdffiles1/nij/grants/225084.pdf. minors and third parties more generally. Only 13 Disclosure is due to this paragraph’s reference to an then would one of the most widely ratified treaties earlier study conducted by the author, through research in the world be made to work for the “best with member organizations of the NSWP. BRENDAN interest” of those who are most affected by its CONNER, XVIII INTERNATIONAL AIDS CONFERENCE: provisions. WARDS OF THE STATE:LAW,POLICY AND YOUNG SEX WORKERS’SPECIAL VULNERABILITY TO HIV/AIDS

1 (2010) (on file with author). In the technical sense, a protocol to a treaty is ‘optional’ in 14 UNCRC, supra note 3, art. 3 § 1. that it is not automatically binding on the states that have 15 OPSC, supra note 2, art. 8. already ratified the treaty. See generally “Key Terms,” 16 UNCRC, supra note 3, art. 43. United Nations Treaty Reference Guide. Only two of the 17 U.N. Comm. on the Rights of the Child, Consideration of 192 United Nations member states—Somalia and the Reports Submitted by States Parties Under Article 12, United States—are not state parties to the OPSC’s main Paragraph 1, of the Optional Protocol to the treaty, the 1989 UNCRC, as of February 18, 2011. Convention on the Rights of the Child on the Sale of Somalia is said to have delayed ratification as a result of Children, Child Prostitution and Child Pornography- its governance crisis. The United States has cited its Concluding Observations: United States of America, history of delaying ratification of UN conventions for the 38(a), U.N. Doc. CRC/C/OPSC/USA/CO/1 (June 25, purpose of a fully informed signing. However, the 2008). United States ratified the OPSC as of Dec. 23, 2002, 18 Press Release, U.N. Committee on Children’s Rights, demonstrating its prioritization of enforcement over Committee on Children’s Rights Urges the U.S. services. 2 and Somalia to Ratify the Convention on the Rights of Optional Protocol to the Convention on the Rights of the the Child (Oct. 13, 2010). Child on the Sale of Children, Child Prostitution and 19 United Nations Standard Minimum Rules for the Child Pornography (OPSC), May 25, 2000, 2171 Administration of Juvenile Justice (“The Beijing U.N.T.S. 227. 3 Rules”). G.A. Res. 40/33, Annex, U.N. GAOR, 40th United Nations Convention on the Rights of the Child, art. Sess. Supp. No. 53, U.N. Doc. A/40/53, at 207 (Nov. 1, Nov. 20, 1989, 1577 U.N.T.S. 3. 29, 1985). 4 Id. Preamble, ¶ 1. 5 I refer to those affected as “minors” and not children in order to respect young people’s resiliency and capacity for choice, even among limited choices. 6 The UNCRC defines “child” to be inclusive of all persons under 18 years of age, unless a treaty party recognizes CUNY ILS Digest Page 29

Torture in Colorado: Reflections on was accused of allowing an acquaintance, Junaid Fahad’s S.A.M.s A Year Later Babar, to store ponchos, waterproof socks, and sleeping bags in his apartment for a few weeks in By Kathryn Heffron 2004. Fahad was also accused of allowing Babar to use his cell phone and lending Babar three hundred dollars for a plane ticket.6 Babar allegedly gave the My brother, Ahmed Abu Ali, has spent the past five socks and ponchos to a leading member of al-Qaeda years in solitary confinement, under 23-hour and later entered an agreement with the government lockdown, in a 7x12 cell. He has one recreational as a cooperating witness. In 2006, Fahad was hour in which he must get strip-searched if he arrested in Heathrow Airport on material support wishes to leave his cell. He gets one unscheduled charges.7 He was extradited from England and was telephone call a month to his family, and receives placed in pretrial detention for three years under the newspaper by the time news becomes history. If Special Administrative Measures (the “S.A.M.s”) at I send him a letter wishing him a happy birthday, he the Metropolitan Correctional Center, located in gets it 60 days later. When I visit him, once a year, downtown Manhattan adjacent to the federal I speak to him from behind a glass window. He is courts.7 literally in a dungeon, over 20 meters beneath the 1 ground. S.A.M.s are specific conditions of detentions imposed on federal prisoners when the Attorney Mariam Abu Ali, describing the special General determines that communication could be administrative measures imposed on her brother disclosed that would threaten national security or at a super maximum security prison in that prisoner’s interactions could result in serious Florence, Colorado. injury or death of others through acts of violence or terrorism.8 The regulations promulgating S.A.M.s never use the words “solitary confinement” but the About a year ago, a group of CUNY School of Law restrictions imposed on housing, restrictions on students joined up with activists around New York access to visitations, strict restrictions on to other to show their support for Syed Fahad Hashmi, who prisoners or religious officials, restrictions on was facing a trial in federal court in April 2010, for telephone, or news media amount to conditions of material support to terrorism charges. Fahad’s case solitary confinement for extremely prolonged resonated with CUNY students for several reasons. periods of time.9 S.A.M.s were introduced by Fahad was born in Pakistan and moved to the Congress in 1996 and initially could only be used United States when he was three-years-old. He 120 days at a time, but after September 11, 2001, 2 grew up in Flushing, Queens. Fahad is a CUNY this time period was lengthened to a year with the alumnus, graduating from Brooklyn College, where opportunity for extensions annually.10 The revised he often stood with others at his campus to speak rules allow for the Government to monitor out against American domestic and foreign policy communications between an inmate and his attorney 3 in the wake of September 11th. Jeanne Theoharis, where “reasonable suspicion exists to believe Fahad’s political science professor at Brooklyn that a particular inmate may use College, remembers that Fahad was “[a] critic of communications with attorneys or their agents U.S. foreign policy and its treatment of Muslims, he to further or facilitate acts of terrorism.”11 The held the rather optimistic view that you could Department of Justice’s justification maintains that change people's minds by talking and arguing with S.A.M.s serve a “legitimate penological objective” 4 them.” of the corrections system and deter crime and When CUNY students first learned of the case, maintain internal security within the corrections 12 Fahad was facing a seventy-year sentence in federal facilities. In 2009, the Department of Justice court for material support to terrorism and other revealed that 44 federal prison inmates, terrorist charges.5 In frightening absurdity, Fahad including defendants awaiting trial, were being held under S.A.M.s in prisons across the United Page 30 CUNY ILS Digest

States.13 S.A.M.s by and large affect Muslim In the months preceding Fahad’s trial, CUNY defendants.14 students attended vigils outside the Metropolitan Correctional Center, wrote editorials to press, held Under SAMs, Fahad endured inhumane conditions, strategy sessions with other advocates, and made prohibited under international law. Fahad spent 23 plans to pack the courthouse for the trial. On April hours a day in solitary confinement lockdown.15 26, 2010 the Judge granted the Attorney General’s For several month-long intervals, Fahad was not motion for an anonymous jury with extra security allowed visitation from his family. When he was measures two days prior to the start of trial. The allowed visitations, they were confined to one- government’s motion requesting an anonymous jury person visits for one hour and a half, every other specifically referred to the growing activism around week. Fahad was permitted to write one letter a the case, which included community groups, week to his family but could not use more than professors, artists, attorneys, civil rights three pieces of paper per letter. He was forbidden organizations, and students. On the eve of trial, any contact directly or through attorneys with news Fahad, unable to view classified information media. Fahad could read only news articles pertaining to his case and likely sensing the approved by the prisons and not until thirty days impossibility of a fair trial under an anonymous after publication. The S.A.M.s include 24-hour jury, accepted a plea bargain and was sentenced to electronic monitoring and a prohibition of fifteen years. He was moved to a high security communication with other inmates. He was prison in Florence, Colorado, where he remained allowed one hour of recreation every day—inside a under S.A.M.s conditions. Today, one year after cage.16 All these measures were imposed on Fahad the plea bargain, Fahad’s situation remains before his guilt had ever been proved in any court of unchanged. The torture of Fahad now continues law. into its fourth year. On October 29, 2010, the S.A.M.s were extended against Fahad.19 Throughout the three years of pretrial detention, Fahad’s attorneys insisted to the court that such Human Rights Law on S.A.M.s conditions of confinement would have “lasting psychological, emotional, and physical damage” to The use of prolonged solitary confinement such as their client and that the conditions would affect their that which is imposed under S.A.M.s has been client’s ability to assist in his own defense.17 Their addressed in international law. International treaty motions were denied. Fahad’s family and attorneys bodies have found that prolonged solitary spoke of Fahad’s mental and physical deterioration confinement can amount to inhumane and throughout the length of the pretrial period. Joshua degrading treatment.20 The Special Rapporteur Dratel, an attorney familiar with similar cases in noted that solitary confinement, including the federal court, writes of defendants subjected to holding of a person in physical isolation for 22 to 24 S.A.M.s: hours a day and being allowed outside for only one hour a day, may amount to cruel, inhumane, and The mental and physical deterioration of the degrading punishment or torture.21 The Special client is palpable after only a short period of Rapporteur has also referenced the Human Rights time. The complete isolation, lack of exercise Committee statement that prolonged solitary and emotional and mental stimulation, all confinement may violate Article 7 of the manifest themselves clearly, steadily, and International Covenant on Civil and Political increasingly over time. The client has difficulty Rights. Additionally, The Committee Against concentrating, becomes irritable, listless, demanding, and uncooperative, progressively Torture has recognized the harmful, physical, and loses appetite, which further impairs his health, mental effects of prolonged solitary confinement and frequently develops physical and somatic and has expressed concern about its use, including symptoms of the pervasive stress under which preventative measures during pre-trial detention as he suffers.18 CUNY ILS Digest Page 31 well as a disciplinary measure. Several treaty UN considered by the Court includes a statement from bodies have reviewed the practice of prolonged ADX warden Ron Wiley, letters and reports from solitary confinement in United States prisons.22 In Human Rights Watch, an article by Time Magazine 1995, the U.N. Human Rights Committee stated on U.S supermax prisons, and a report from that isolation conditions in certain U.S. maximum psychiatrist, Dr. Terry Kupers, documenting the security prisons were incompatible with Effects of the conditions imposed at the supermax international standards. In 1996, the U.N. special facility. The Court is reviewing treaty reports rapporteur on torture reported on cruel, inhuman, including statements on prolonged solitary and degrading treatment in U.S. supermax prisons. confinement from the UN Committee Against In 2000, the U.N. Committee on Torture explicitly Torture and the UN Human Rights Committee. The condemned the United States for its treatment of Court also considered a copy of the Istanbul prisoners, citing supermax prisons. In May 2006, statement on the use and effects of solitary the same committee concluded that the United confinement, adopted at the International States should review the regimen imposed on Psychological Trauma Symposium in December detainees in super maximum security prisons, in 2007.28 Additionally, the Court is also reviewing a particular, the practice of prolonged isolation.23 report from the Civil Rights Clinic at the University of Denver, which emphasizes the increased risks to Most recently, the European Court of Human prisoners such as Fahad, who are placed in Rights, citing potential inhumane U.S Federal supermax and, additionally, subjected to SAMs prison conditions, has stayed the extradition of restrictions.29 four terrorist suspects to the United States.24 The applicants argued extradition to the United States Some civil rights activists have been reticent to for trial in federal court included “a substantial risk criticize conditions in United States federal prisons, that [they] would be subjected to administrative with the fear that such activism might compromise measures whilst in pre-trial detention in a federal the campaigns to close Guantánamo Bay and prison . . . these measures could involve solitary Bagram.30 Yet, torture is torture and it is confinement and restrictions on communication unacceptable regardless of whether it occurs IN with his legal representatives in violation of Guantánamo, Bagram, Colorado, or downtown Article 3 and 6 of the Convention.”25 Article 3 of Manhattan. There is hope that the European Court the Convention on Human Rights prohibits of Human Rights pending decision will make a “torture or inhuman or degrading treatment or strong statement against the use of SAMs in the punishment.” Article 6 of the Convention United States. Regardless of that decision, a year guarantees a fair, public trial within a reasonable has passed, and Fahad still remains under the same amount of time, the presumption of innocence, and deplorable treatment that he endured for three years protections for defendants in preparing for their prior to trial. It is perhaps time for us all to reflect defense.26 on how his situation has remained unchanged and what it is we can do to respond. The European court is considering five separate statements from attorneys who have worked on 1 Mariam Abu Ali, My Brother Faces a Lifetime of Solitary federal cases and are familiar with use of SAMs. Confinement on a Spurious Terror Conviction, ALTERNET, May 12, 2010, http://www.alternet.org/ The court is reviewing information from the (search “My brother”; then follow “My Brother Faces a Department of Justice on speedy trial statutes Lifetime of Solitary Confinement on a Spurious. . . .” under federal law and the reasons for delay in hyperlink). federal court.27 Additionally, the court considered 2 “Guantanamo at Home”: Muslim American Syed Fahad the similar conditions, which would be imposed on Hashmi Held in 23-Hour Solitary Pretrial Confinement defendants after they are convicted in supermax for over Two Years in Case Resting on Plea-Bargaining Government Informant, DEMOCRACY NOW, June 5, 2009, prisons, such as the prison where Fahad is http://www.democracynow.org/2009/6/5/hashmi. currently located in Colorado. Information Page 32 CUNY ILS Digest

3 Jeanne Theoharis, The Legal Black Hole in Lower 22 Bill Quigley, Not Just Guantanomo: US Torturing Muslim Manhattan, SLATE (Apr. 27, 2010, 11:05 AM), Pre-Trial Detainee in NYC,HUFFINGTON POST, Apr. 3, http://www.slate.com/id/2252117/. 2010, http://www.huffingtonpost.com/bill-quigley/not-just- 4 Id. guantanamo-us-to_b_524226.html. See also Lobes, supra 5 After 3 Years in Pre Trial Solitary Confinement Fahad note 20, at 123–24 (citing U.N. Comm. Against Torture, Hashmi Pleads Guilty on the Eve of a Terror Trial, Conclusions and Recommendations of the Committee DEMOCRACY NOW, Apr. 28, 2010, Against Torture: United States of America, ¶ 36, U.N. http://www.democracynow.org/2010/4/28/after_3_years_in Doc. CAT/C/USA/CO/2 (May 18, 2006), available at _pretrial_solitary. http://www.aclu.org/images/torture/asset_upload_file807_ 6 Id. 25607.pdf. 7 23 Id. See also DEMOCRACY NOW, supra note 2. Id. 8 28 C.F.R. §§ 501.2(a), 501.3(a) (2010). 24 Eberhardt & Theoharis, supra note 14. 9 See id. 25 Id. 10 National Security; Prevention of Acts of Violence and 26 Council of Europe, European Convention of Human Rights, Terrorism, 66 Fed. Reg. 55,062, 55,063–64 HELLENIC RESOURCES NETWORK, (proposed Oct. 31, 2001) (to be codified at C.F.R. pts. http://www.hri.org/docs/ECHR50.html#C.Art6 (last visited 500–01). Apr. 24, 2011). 11 Id. at 55,066. See also NYU School of Law, The Center of 27 European Court of Human Rights, Partial Decision as to Law and Security, Terrorist Trial Report Card, September Admissibility of Application nos. 24027/07, 11949/08, 11, 2001-September 11, 2011, 21 (2010), available at 36742/08, by Babar Ahmad, Haroon Rashid Aswat, Syed http://files.e2ma.net/36219/assets/docs/ttrcseptember15th2 Talah Ashan and Mustafa Kamal Mustafa (Abu Hamza) 010.pdf. against the United Kingdom, 32–33 (2010) available at 12 National Security; Prevention of Acts of Violence and http://www.unhcr.org/refworld/country,,,CASELAW,EGY,, Terrorism, 72 Fed. Reg. 16,271, 16,274 (Apr. 4, 2007) (to 4c3718882,0.html. be codified at 28 C.F.R. pts. 500–01). 28 Id. at 35. 13 The Center on Law and Security, supra note 10, at 21. 29 Id. 14 Sally Eberhardt & Jeanne Theoharis, Guantánamos Here at 30 Eberhardt & Theoharis, supra note 14. Home, THE NATION, Feb. 7, 2011, available at http://www.thenation.com/article/157896/guant%C3%A1n amos-here-home. 15 Nat Hentoff, A Brooklyn College Grad Experiences the Constitution in a Cage, VILLAGE VOICE, Nov. 5, 2008, available at http://www.villagevoice.com/2008-11- 05/columns/a-brooklyn-college-grad-experiences-the- constitution-in-a-cage/. 16 Id. 17 Id. 18 Joshua L. Dratel, Ethical Issues in Defending a Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case, 2 CARDOZO PUB. L. POL’Y ÐICS J. 81, 84-85 (2003). 19 Memorandum from Dep’t of Justice, Assistant Att’y Gen. Lanny A Breuer for Fed. Bureau of Prisons, Dir. Harley G. Lappin (Oct. 28, 2010) (on file with author). 20 See Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J. CONST. L.115, 122–23 (2008); U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: New Zealand, 5, U.N. Doc. CAT/C/CR/32/4 (May 19, 2004); U.N. Human Rights Comm., General Comment No. 20, 6, U.N. Doc. CCPR/A/47/40/1992, Annex VI (1994). 21 U.N. General Assembly, Note by the Secretary General, Torture or Other Cruel, Inhumane or Degrading Treatment, U.N. Doc. A/63/175 (July 28, 2008). 36th Session, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: CUNY ILS Digest Page 33

Editorial Board

Bianca Cappellini Marleecia Deck Cynthia Galik Robert Kim Cynthia Liang Rebecca Pendleton

CUNY’s International Law Society returns with another Digest publishing pieces solely authored by CUNY law students. This year’s Digest contains a variety of topics that span the globe and work that is being done by our fellow students. The Digest’s mission is to encourage student writing and research and continue discussion of international and comparative legal issues. We hope that this Volume will inspire students to persevere with their scholarship.

Special thanks to Professor Andrea McArdle and the Writing Center’s Nicole Klym (3L) for offering their insights and expertise. Have a great summer and we will see you next year!

ILS Digest Editorial Board 2010–11