ACLU INTERNATIONAL CIVIL LIBERTIES REPORT
2002 EDITION 723 Ocean Front Walk Venice, CA 90291 Tel. 310.396.0731 Fax. 310.399.7040
ACLU E-MAIL [email protected] INTERNATIONAL WWW.ACLU.COM HUMAN RIGHTS TASK FORCE ACLU INTERNATIONAL HUMAN RIGHTS TASK FORCE 723 O cean Front W alk Venice, CA 90291 tel.310.396.0731 fax. 310.399.7040 [email protected]
PAUL HOFFMAN ANN BEESON Nat’l Task Force Co-Coordinator Nat’l Task Force Co-Coordinator 723 O cean Front W alk ACLU Venice, CA 90291 125 Broad Street, 18th Floor 310.396.0731 New York, NY 10004 310.399.7040 fax 212.549.2601 [email protected] 212.549.2651 fax [email protected] NADINE STROSSEN New York Law School AL BRONSTEIN 57 Worth Street Nat’l Prison Project New York, NY 10013 1875 Connecticut Avenue, N.W., Suite 410 212.431.2386 Washington, D.C. 20009 [email protected] 202.234.4830 [email protected] john powell University of Minnesota Law Center DEBORAH PERLUSS 229 19th Avenue Sou th c/o ACLU of Washington Minneapolis, MN 98104 705 Second Avenue, Suite 300 612.625.1000 Seattle, WA 98104 206.624.2180 STEVE SHAPIRO administration@aclu-w as.org ACLU 125 Broad Street, 18th Floor LAURA W. MURPHY New York, NY 10004 ACLU 212.549.2611 122 Maryland Avenue, N.E. [email protected] Washington, DC 20002 202/675.2305 JEANNE WOODS [email protected] Loyola Law School 7214 St. Charles Avenue MARK SILVERSTEIN New Orleans, LA 70018 ACLU/Colorado 504.861.5550 400 Corona Street [email protected] Denver, CO 80218 303.777.5482 SAMUEL PAZ [email protected] 520 So. Grand Avenue, Seventh Floor Los Angeles, CA 90071-2645 SLATER NEWMAN 213.955.4271 315 Shepherd Street [email protected] Raleigh, NC 27607 919.515.1728 WILLIAM ACEVES [email protected] California Western School of Law 225 Cedar Street FRAN CISCO FORR EST MARTIN San Diego, California 92101 3801 S. Ocean Drive, Apt. 4U 619.525.1589 Hollywood, FL 33019 [email protected] [email protected] INTERNATIONAL CIVIL LIBERTIES REPORT
TABLE OF CONTENTS
Page(s)
1. Introduction to ACLU International Civil Liberties Report 2002 ...... 1
2. Human Rights, Antiterrorist Wrongs By: Diane Marie Amann ...... 3
3. Was John Walker Lindh a Victim of Torture? By: William J. Aceves ...... 11
4. Death Penalty Cases By: Connie de la Vega and Kathleen Dyer ...... 20
5. The New Remedies of Withholding and Deferral of Deportation under the Torture Convention By: Dilan A. Esper ...... 27
6. Litigation Update: a Summary of Recent Developments in U.s. Cases Brought under the Alien Tort Claims Act and Torture Victim Protection Act By: Paul Hoffman and Jennifer Green ...... 30
7. The Vienna Convention on Consular Relations: Recent Developments By: William J. Aceves ...... 44
8. Romagoza v. Garcia: Proving Command Responsibility Under The Alien Tort Claims Act And The Torture Victim Protection Act By: Beth Van Schaack ...... 50
9. The Center for Justice & Accountability: Holding Perpetrators Accountable By: Joshua Sondheimer and Matthew Eisenbrandt ...... 57
10. The Krebs Case, the Inter-American Commission on Human Rights, and U.S. Death Penalty Litigation By: David Sloss ...... 64
11. The Inter-American Human Rights System: Activities from Late 2000 through October 2002 By: Richard J. Wilson and Jan Perlin ...... 72
12. Holocust Restitution in the United States and Other Claims for Historical Wrongs – an Update By: Michael J. Bazyler and Adrienne Scholz ...... 101
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13. The Cavallo Case and the Future of Universal Jurisdiction By: Ellen L. Lutz and Naomi Roht Arriaza ...... 117
14. War on the Court: The International Criminal Court and U.S. Opposition By: James Ross ...... 121
15. Summary of Developments at the 53rd Session of the United Nations Sub-commission on the Promotion and Protection of Human Rights By: David Weissbrodt, Bret Thiele, Mayra Gómez, and Muria Kruger ...... 127
16. Revised Guide to Human Rights Research on the Web by: Marci Hoffman ...... 150
17. Penal Reform International – Working for Human Rights and Accessible Justice Worldwide By: Jenni Gainsborough ...... 172
18. Recent ILRF Cases to Enforce Human Rights under the Atca By: Terry Collingsworth ...... 175
19. The ACLU/North Carolina Committee on International Human Rights By: Slater Newman ...... 181
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1. Introduction document and hold the government accountable for any abuses. By Ann Beeson and Paul Hoffman* In May 2002, we held a plenary session and workshop at the ACLU National Staff The protection of civil liberties and Conference, entitled “Using International human rights across the globe has taken on Human Rights Domestically.” Alice Henkin of added urgency in the past year. Following the the Aspen Institute discussed her training of September 11th terrorist attacks, the United federal judges in international human rights law. States government has been all too willing to Paul Hoffman outlined recent uses of sacrifice civil liberties and human rights in the international law in domestic civil rights name of national security and the war on litigation. Catherine Powell, the (now former) terrorism. The United States sets a powerful Executive Director of Columbia’s Human example for the respect – or disrespect – of Rights Institute, discussed local, state and human rights around the world. The erosion of federal legislative efforts to adopt international fundamental liberties at home is certain to lead human rights standards. Cheri Honkala of the to a corresponding erosion of rights elsewhere Kensington Welfare Rights Union inspired in the world. everyone with her call for more grass-roots There is a greater need than ever for advocacy and community building based on domestic civil rights organizations like the international human rights standards. ACLU to hold the U.S. government accountable In July 2002, the ACLU and many other for violating international human rights groups participated in a working conference at principles in addition to constitutional ones. We Howard University, called “Ending must also increase our partnerships with Exceptionalism: Strengthening Human Rights international, national, and local human rights Work in the United States.” Over sixty policy organizations around the world to fight the advocates, documentarians, academics, lawyers, erosion of rights. In addition to the many and grass-roots advocates discussed specific developments discussed in detail in the methods for applying human rights principles to following report, in the past year the ACLU rose issues such as sovereignty, incarceration, the to this challenge in a number of ways. death penalty, discrimination, immigration, and ACLU Executive Director Anthony poverty in the US. The work of the conference Romero initiated an innovative joint project is ongoing and is likely to result in the creation with the Human Rights Commission of Pakistan of a ground-breaking new US Human Rights to identify, contact, and document the Network. The Network would bring together a experiences of Pakistanis secretly detained and broad range of activists to promote US then deported by the US government after 9/11. compliance with universal human rights The project, which is ongoing, will send a standards. strong message to the US government that it Other efforts to bring together US cannot gain impunity through secrecy; human human rights activists also gained momentum in rights advocates will work across borders to the last year. Columbia’s Human Rights Institute (CHRI) continued its Bringing Human Rights Home Lawyers Network, which hosts a quarterly meeting of lawyers to discuss specific * Ann Beeson and Paul Hoffman are the Co- human rights cases and resources in the US. Coordinators of the ACLU International Human CHRI also launched the Human Rights Online Rights Task Force. Ann Beeson is the ACLU’s web site, hosted on probono.net, which links Associate Legal Director.
1 INTERNATIONAL CIVIL LIBERTIES REPORT civil rights and human rights organizations. The web site allows practitioners to share new ideas and resources for challenging injustice in the US, and to make their collective knowledge more accessible to other advocates. In October 2002, the ACLU and Human Rights Watch announced the creation of a new two-year joint fellowship, the Aryeh Neier Fellowship for Human Rights. The fellow will work with both organizations on joint initiatives to strengthen respect for human rights in the US. Work is likely to include field research in the US, preparation of reports, advocacy, and development of litigation strategies. HRW and the ACLU created the fellowship to honor the legacy of Aryeh Neier. As executive director the ACLU and then of HRW, Aryeh Neier helped guide both organizations into powerful forces for justice and human rights. We expect to make additional headway next year, with two projects already in the works. First, we are revitalizing the existing ACLU International Human Rights Task Force, to work with ACLU staff, members and the Board to increase the knowledge and use of human rights principles within the ACLU. Second, we have obtained funding to plan and host an intensive two-day conference to train civil rights lawyers around the country to incorporate human rights principles into domestic civil rights litigation. We are hiring a consultant to plan the conference, and she will work closely with a program committee which includes representatives from five key human rights and civil liberties organizations. The conference will be probably be held in Atlanta, Georgia (or elsewhere in the south), sometime in the fall of 2003.
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2. HUMAN RIGHTS, Homeland Security Department, with much ANTITERRORIST WRONGS access to intelligence data about terrorism. More than seven thousand persons found in the By: Diane Marie Amann* United States, mostly Arabs, South Asians, or Muslims, received invitations to appear at police The September 11, 2001, attacks that stations and answer questions; more than a killed thousands in New York and Washington thousand noncitizens were held in prolonged awakened Americans to a new sense of and secret detention. vulnerability. These were not the first terrorist Detainees outside the United States strikes against the United States; prior assaults endured exceptional treatment. Those whom had included explosions at Marine barracks in President George H. Bush presumed members Beirut in 1983 and at U.S. embassies in Africa of Al Qaeda were detained indefinitely at a U.S. in 1998. But this time, in a perverse twist, military base at Guantánamo Bay, Cuba. There civilians, passengers on civil aircraft, were they were denied the protection of the U.S. transformed into tools for commission of Constitution. Vice-President Dick Cheney international terrorism on U.S. soil. September justified this by saying of terrorists, “‘They 11 thus shocked Americans into awareness that don’t deserve the same guarantees and their borders, no less than those elsewhere in the safeguards that would be used for an American world, could be penetrated. citizen going through the normal judicial The Government’s Antiterrorism process.’”2 Officials endeavored to interrogate Campaign – With this new vulnerability might detainees, who were refused access to counsel, have come a new willingness to work with other and the reported silence of many prompted nation-states against a common enemy. some in the United States to discuss the use of Initially, U.S. Secretary of State Colin M. torture to extract confessions.3 President Powell shuttled from state to state building a George W. Bush authorized the use of special coalition to intervene militarily against the military commissions, not bound to observe the Taliban regime in Afghanistan, refuge of Osama panoply of the rights of the accused and not bin Laden, leader of Al Qaeda, the terrorist subject to judicial review, for trial of some of network believed to have committed the the detainees. The rest – and any whom a September 11 attacks. Soon, however, the military tribunal might acquit – faced United States began following its own path. internment until the United States declared an As a result of the USA PATRIOT Act end to its “war” against terrorism.4 of 2001 and subsequent measures,1 internal The U.S. campaign provoked much surveillance increased. Attorney-client criticism from its allies and others around the conversations, once confidential, were subject to globe. Sweden pressed for release of its eavesdropping. Federal employees replaced citizens’ assets, frozen by the U.N. Security private security guards, and employed more Council at the United States’ request; Spain intrusive search methods at airports. signaled that it might not hand over suspected Policymakers mulled combining a score of Al Qaeda members unless the United States federal agencies into a new, Cabinet-level promised to try them in civilian courts; and domestic security sector, to be named the several states protested the U.S. plan to seek the death penalty for one defendant, a French national.5 States pressed for a diplomatic solution to concerns about weapons-making in * Diane Amann is a Professor of Law at the University of California, Davis, School of Law.
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Iraq in spite of U.S. demands for a military were not aliens but rather U.S. citizens, the assault. government maintained that the Supreme Treatment of Guantánamo detainees Court’s decision in Ex parte Quirin, 317 U.S. 1 sparked international outrage. Photographs of (1942), authorized it, without any judicial hooded men, in chains and on their knees amid oversight, to curtail liberties of all “unlawful cages, spurred insistence that the United States combatants” – even its own citizens found on its obey the third Geneva Convention, regarding own territory. the treatment of prisoners of war.6 It requires Legal Challenges to the U.S. that a High Contracting Party treat prisoners of Campaign – Opponents of U.S. antiterrorist war humanely and refrain from demanding measures sought legal recourse. Resorting to information other than that relating to one of few potential judicial mechanisms for identification. Prisoners of war accused of international scrutiny, a number of U.S. human crimes must receive a fair trial, according to the rights attorneys filed with the Inter-American Convention – at a minimum, the same criminal human rights system a challenge to the process that the detaining state would accord its conditions of detention at Guantánamo. Even own military personnel. Prisoners not subject to though the United States never ratified the criminal proceedings must be liberated and American Convention on Human Rights of repatriated as soon as the conflict ends. 1969, the Inter-American Court of Human The United States resisted application Rights had ruled in 1990 that the United States’ of the Convention, arguing that the alien membership in the Organization of American detainees were not prisoners of war, but rather States rendered it liable to answer before inter- “enemy combatants” unprotected by the Geneva American human rights bodies.9 Thus in March framework. Eventually it relented with regard 2002, the Inter-American Commission on to nationals of Afghanistan. Others – nationals Human Rights adopted precautionary measures of more than two dozen states including Saudi that asked the United States to “take the urgent Arabia, Pakistan, Yemen, Algeria, Australia, measures necessary to have the legal status of Sweden, Britain, Belgium, and France – were the detainees at Guantanamo Bay determined by presumed to belong to Al Qaeda, a nonstate a competent tribunal.” The United States entity. The U.S. government continued to refused, arguing both that the Commission maintain that the Convention did not cover these lacked the competence to issue such a decision detainees, more than a third of the Guantánamo and that, in any event, the third Geneva captives. It further rejected the Red Cross’ Convention does not apply, so that there is no position that executive designation of detainee need to consult a “competent tribunal.” The status did not satisfy the Convention Commission held a hearing on the matter in requirement that “a competent tribunal” decide October 2002.10 whether a detainee is a prisoner of war.7 As this international litigation unfolded, In late 2002, the United States released opponents also looked to national law, calling four Guantánamo detainees, but brought in on state and federal judges throughout the about thirty more, increasing the detention United States to examine aspects of the population to more than 600 men.8 The antiterrorism campaign. Here too the executive proposed special military tribunals had not yet resisted. In cases relating to Guantánamo, it been established. Nonetheless, officials persisted in its rebuff of the Geneva expanded the group of individuals they deemed Convention; in others, it argued that a post- unworthy of legal protection. Having September 11 national emergency justified discovered that a number of suspected terrorists measures such as protracted and secret detention
4 INTERNATIONAL CIVIL LIBERTIES REPORT and seizure of funds even absent a showing of “The Constitution of the United States is a law ties to terrorism. In many cases the executive for rulers and people, equally in war and in branch contended that the federal judiciary had peace, and covers with the shield of its no authority to review its decisions. Petitions protection all classes of men, at all times, and writs for habeas corpus, by which the U.S. under all circumstances. No doctrine, involving Supreme Court had reviewed proceedings of more pernicious consequences, was ever military tribunals in World War II-era cases like invented by the wit of man than that any of its Quirin and Application of Yamashita, 327 U.S. provisions can be suspended during any of the 1 (1945), were claimed to have no jurisdictional great exigencies of government.” Detroit Free foundation. At a hearing involving Yaser Esam Press, 303 F.3d at 683; Awadallah, 202 F. Supp. Hamdi, a U.S. citizen captured in Afghanistan, a 2d at 57 (quoting Ex parte Milligan, 71 U.S. (4 district court “verbally cuffed” government Wall.) 2, 120-21 (1866)). lawyers for seeking to avoid judicial scrutiny of At the other end, the Fourth Circuit their assertion that Hamdi did not enjoy the full based its reversal of an order permitting a complement of constitutional rights; as of yet no detained citizen access to counsel on the district appellate panel has ruled on the question.11 court’s “inattention to ... cardinal principles of Actual exercise of review did not mean constitutional text and practice”; specifically, a that judges would rule against the executive. To practice of extreme judicial deference to the contrary, one challenge to detention at executive and legislative acts “implicating Guantánamo promptly was dismissed for the sensitive matters of foreign policy, national reason that government action outside U.S. security, or military affairs.” Hamdi, 296 F.3d territory fell outside the reach of the U.S. at 281-82. Each opinion struggled to adjudicate courts.12 Judges divided on most questions put novel questions by application of national law. before them; for example, whether the executive But settled national law often failed to provide had abused its statutory power by holding an adequate means to just resolution. In tacit individuals in custody as material witnesses acknowledgment of this, one court highlighted despite the lack of proof of misconduct;13 the pertinence of the third Geneva Convention whether immigration authorities must disclose to Guantánamo detention even as it deemed names and other information about detainees;14 itself incompetent to enforce the terms of that whether the government could close treaty. See Coalition of Clergy, 189 F. Supp. 2d immigration hearings in matters that the at 1050 (discussing Convention and executive branch had classified of “special commenting that “nothing in this ruling interest”;15 and the degree to which the suggests that the captives are entitled to no legal government had to prove links to terrorism protection whatsoever”). before a suspect’s assets could be frozen.16 But continued abdication of jurisdiction Toward Just Decisionmaking – Judges could mean that no body will be able to place a in the United States sought guidance in their check on post-September 11 antiterrorist own Constitution – not only its text, but also the measures. Longstanding U.S. resistance to values and political structure underlying it. At orders from inter-American human rights bodies one end of the spectrum, the U.S. Court of make it unlikely that this regional system will Appeals for the Sixth Circuit warned that persuade the United States to alter its path. The “[d]emocracies die behind closed doors,” and a check, if there is to be one, will have to come district judge introduced her decision against the from a U.S. judiciary – one that has liberated government’s use of the material witness statute itself from the confines of an exclusively with this excerpt from a Civil War-era opinion: national constitutional jurisprudence.
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Constitutional law must be reformulated to and Thomas, JJ., dissenting) and id. at 2264 acknowledge and accommodate the pervasive (Scalia, J., joined by Rehnquist, C.J., and interdependence between United States and the Thomas, J., dissenting). Such values pertain rest of the world. It makes little sense to seek to equally to interpretation of the constitutional apply “pure” national law, unaffected by principles critical to scrutiny of the U.S. external norms, as the sole vehicle for antiterrorism campaign; in particular, whether adjudication of matters replete with certain intrusions amount to “unreasonable transnational components. To limit U.S. searches and seizures” violative of the Fourth judicial power to the territorial borders of the Amendment, and whether the government has United States likewise seems crabbed, given afforded “due process” as required by the Fifth that executive action is not so confined. To give Amendment. the U.S. government free rein abroad invites The inquiry should begin with hostility from individuals and states across the examination of human rights law, which holds globe. It also may work substantive injustice, that individuals enjoy certain rights simply for it runs the risk of immunizing abuses that because they have been born human beings. would not be tolerated at home. And a premise Two of the many recitations of this principle underlying decrees of deference to executive occur in the American Declaration of the Rights decisions implicating foreign affairs – that and Duties of Man, which the United States domestic judges cannot acquire the tools to endorsed, and in the International Covenant on comprehend international matters – is outdated Civil and Political Rights (ICCPR), which the in a century characterized by instantaneous United States ratified. The first proclaims that transmission of information. Because national “the essential rights of man are not derived from law fails to permit a full and just evaluation of the fact that he is a national of a certain state, the U.S. antiterrorism campaign, judges ought to but are based upon attributes of his human look beyond the borders of the United States for personality”; the second, that “the inherent international norms that may aid their dignity of the human person” gives rise to decisionmaking. “equal and inalienable rights” that are “the Such an approach is scarcely without foundation of freedom, justice and peace in the precedent. Early U.S. opinions routinely looked world.”18 Though not unfamiliar to U.S. legal to foreign sources when interpreting principles tradition, the concept has withered in the face of of U.S. law. The practice was not uncommon to skepticism about its natural law roots and federal criminal law as late as the 1960s.17 Last frequent abridgment of rights via judicially Term’s decision in Atkins v. Virginia, 122 S. Ct. created balancing tests. Decisions that sustained 2242 (2002), resurrected the practice of government deprivations in the name of state consulting international norms to determine necessity, like Abrams v. United States, 259 whether punishment offends “evolving U.S. 616 (1919), and Korematsu v. United standards of decency” and so violates the Eighth States, 323 U.S. 214 (1944), have further diluted Amendment to the U.S. Constitution. In citing its force. Consideration of international human the brief amicus curiae of the European Union rights law could lead to revitalization of the as support for its conclusion that the view that rights vest in humans simply because Constitution forbids execution of a mentally they are human, and thus cast grave doubt on retarded person, the Court rejected three the contention that the state may deny dissenters’ arguments that international values fundamental rights if the human in question is a are irrelevant. Compare id. at 2249 n.21with id. noncitizen, or an enemy, or a suspected terrorist. at 2254-56 (Rehnquist, C.J., joined by Scalia
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A court that has embraced the inherent wage its antiterrorist campaign by unreviewable dignity of each human being likely would draw fiat also would fare poorly in light of on all available sources to craft a constitutional international law’s guarantee of an effective framework for substantive justice. Obligations means of redress and its preference for judicial the United States has assumed as a state party to review.22 the third Geneva Convention thus would Even at international law, most become relevant. The claim would not be that fundamental rights are subject to derogation. the Convention is automatically enforceable in One example is Article 4(1) of the ICCPR, U.S. courts; the structure of treaties, combined which states: “In time of public emergency with reservations and other mechanisms which threatens the life of the nation and the designed to limit the internal applicability of existence of which is officially proclaimed, the treaties, often preclude such an argument.19 States Parties to the present Covenant may take Rather, the Convention would stand as an measures derogating from their obligations indicator of values to which the United States under the present Covenant to the extent strictly has subscribed – values that implicate required by the exigencies of the situation, constitutional concepts like due process. A provided that such measures are not inconsistent court well might find the fifty-three-year-old with their other obligations under international Convention ill adapted to the U.S. campaign law and do not involve discrimination solely on against terrorism. The promise of liberation and the ground of race, colour, sex, language, repatriation at the end of the conflict, for religion or social origin.” This provision is kin example, rings hollow in a “war” without end. to the strict scrutiny a U.S. court should Some of the rights the Convention describes – undertake when confronted with state an individual has a right not to answer all deprivation of fundamental rights, yet promises questions posed at interrogation, but no right to far more protection for the individual. Its very counsel at interrogation – fall short of standards specificity should cabin governmental action in established in the last half-century. The a way that a catchphrase like “[p]ressing public Convention does not apply, moreover, to anyone necessity,” used to justify internment of found in the United States and there subjected Japanese Americans during World War II,23 either to interrogation or detention. These cannot. failings would not stymy all reliance on the Reassessing the U.S. Campaign – The Convention, but rather would point the judge to September 11 attacks marked the debut neither additional sources of international law in order of the struggle against Al Qaeda nor of the to develop a full understanding of contemporary assault on U.S. territory; those landmarks had values. been established no later than the moment the These other sources would reveal that U.S. embassies in Africa were bombed. the use of official torture, universally Ordinary U.S. courts earlier had proved able to condemned as one of the worst international adjudicate this and other cases involving crimes, should be unthinkable. They would international terrorism. As the passage of underscore the gravity of psychological harm months failed to bring the dire assaults about from prolonged incommunicado detention; such which the U.S. government had given constant harm may violate not only the nonderogable warnings, the American sense of immediate right to be free from torture, but also other threat abated. Circumstances thus did not point human rights.20 Still other rights would be to the nation-threatening emergency that is a implicated by heightened surveillance.21 condition precedent to derogation. Nor were Finally, the executive’s assertion that it may U.S. antiterrorist measures tailored to the
7 INTERNATIONAL CIVIL LIBERTIES REPORT articulated threat. Large numbers of non- (2002 ); Aviation and T ransportation Security A ct, Americans found in the United States were held Pub. L. 107-71, 115 Stat. 597, Nov. 19, 2001; in secret, based on traits, such as age, sex, or National Homeland Security and Combating national origin, shared by many law-abiding Terrorism Act of 2002, S. 2452, 107th Cong. (2002); individuals. No showing of suspected links to Attorney General’s Order Regarding Monitoring of Al Qaeda preceded detention. Similarly, the Confidential Attorney-Client Communications, 66 presidential order that authorized special Federal Register 55,062 (O ct. 31, 2001). military tribunals was not limited to persons 2 Peter Slevin & Georg e Lardner, Jr., Bush Plan for believed to have committed terrorist acts on Terrorism Trials Defended, WASH. POST, Nov. 15, behalf of Al Qaeda. The terms of the order 2001, at A28 (quoting Cheney). easily could be applied to an entirely different context – to Basque separatism, perhaps. And 3 See, e.g., Kevin Johnso n & Richard W illing, Ex- though the national sense of urgency had eased, CIA ch ief revitalizes ‘truth serum’ deb ate, USA the measures had not – more than a year after TODAY, Apr. 26, 2002, at A12 (quoting William the attacks, no end to antiterrorism measures Webster); Alan Dershowitz, We need a serious seemed likely. debate about the use of torture, GUARDIAN In short, under external sources of law (LONDON), Nov. 30, 2001, at 23 (suggesting, in letter by Harvard professor of criminal law, that on rare would render aspects of the U.S. antiterrorism occasions it might be appropriate to issue “torture campaign are invalid. Its devaluation of warrants” as a means of combating terrorism); Walter individuals runs contrary to a founding principle Pincus, Silence of 4 Terror Probe Suspects Poses of human rights law, while the length and Dilemma for FBI, WASH. POST, Oct. 21, 2001, at severity of many measures cannot withstand the A06 (quoting former U.S. Attorney General Richard exacting scrutiny of derogation analysis. The L. Thornburgh and others who advocated standards in sources like international human consideration of previously disfavored interrogation rights and humanitarian law are neither techniques). unattainable nor idiosyncratic; to the contrary, 4 many embody a consensus shared by much of See U.S.: Presidential Military Order – Detention, Treatment, and Trial of Certain Non-Citizens in the the world. U.S. courts seeking to comprehend War Against Terrorism, 66 FED. REG. 57833 (Nov. the contemporary meaning of the constitutional 13, 2001); Procedures for Trials by Military values at stake in antiterrorism measures – for Commissions of Certain Non-United States Citizens instance, the reasonableness of a search and in the War Against Terrorism, Department of seizure or the fairness of procedures – properly Defense Military Commission Order No. 1, Mar. 1, should take these standards into account. 2002, available at Abandonment of an insular constitutional http://www.defenselink.mil/news/Mar2002/d2002032 jurisprudence not only is appropriate in an 1ord.pdf (visited March 23, 2002). interdependent world, but also will afford 5 greater security to individual targets of state See Azhar Cachalia, We must fight U S efforts to erode international justice, SUNDAY TIMES prerogative. (JOHANNESBURG), Mar. 1 7, 2002, http://www.sundaytimes.co.za/2002/03/17/insight/in0 Endnotes 4.asp (visited May 3, 2002) (commentary by a judge 1 See The United and Strengthening America by of South Africa’s High Court); Serge Schmemann, Providing Appropriate Tools Required to Intercept Swedes Take U p the Cause of 3 on U.S. Terror List, and Obstruct Terrorism (USA PATRIOT) Act of N.Y. TIMES, Jan. 26, 2002, at A9; Sam Dillon & 2001, H.R. 31 62, 107th Cong.; Ho meland Security Donald G. M cNeil Jr., Spain Sets Hurdle for Act of 2002, H.R. Con. Res. 5005, 107th Cong. Extradition, N.Y. TIMES, Nov. 24, 2001, at A1;
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Philip Sh enon, Germany Urges U.S . to Drop Death Benjam in Weiser, ‘Enem y Com batant’ Fights to Penalty Plan, N.Y. TIMES, Oct. 26, 2002, at A9. Obtain Counsel, N.Y. TIMES, Oct. 39, 2002, at A13.
12 6 Geneva Convention Relative to the Treatment of Coalition of Clergy v. Bush, 189 F. Supp.2d 1036 Prisoners of War, 75 U .N.T.S. 135, entered into force (C.D. Cal. 2002 ). This decision was affirmed in th Oct. 21, 1950 [hereinafter Geneva Convention]. November 2002, ___ F.3d ___ (9 Cir. 2002).
13 7 See id., art. 5 (“Sh ould an y doubt arise as to Compare United States v. Awadallah, 202 F. Supp. whether persons, having committed a belligerent act 2d 55 (S.D.N.Y. 2002) (forbidding such use) with In and having fallen into the hands of the enemy, belong re Application of United States for a Material to any of the categories enumerated in Article 4, such Witness Warrant, 213 F. Supp. 2d 287 (S.D.N.Y. persons shall enjoy the protection of the present 2002) (rejecting Awadallah ruling an d refusin g to convention until such time as their status has been quash material witness warrant). determined by a competent tribunal.”). 14 Compare Ctr. for Nat’l Sec. Studies v. U.S. Dep’t 8 See David Rohde, Afghans Freed from Guantánamo of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) Speak of Heat and Isolation, N.Y. TIMES, Oct. 29, (ordering release of detainees’ names) with Am. C ivil 2002, at A14. Liberties Union of New Jersey v. County of Hudson, 352 N .J. Super. 44, 799 A.2d 629 N .J. Super. A.D.) 9 Interpretation of the American Declaration of the (reversing judgment below, which had demanded Rights and Duties of Man Within the Framework of disclosure of information regarding person detained Article 64 of the American Convention on Human by immigration authorities), cert. denied, 174 N.J. Rights, Advisory Opinion OC-10/89, July 14, 1989, 190, 803 A.2d 1162 (2002). Inter-Am. Ct. H. R., ser. A, no. 10 (1990). 15 Compare Detroit Free Press v. Ashcroft, 303 F.3d 10 See Request by the Center for Constitutional 681 (6th Cir. 2002) (condem ning blanket clo sure in Rights, the Human Rights Clinic at Columbia Law such instances) with North Jersey Media Group v. School and the Center for Justice and International Ashcroft, __ F.3d __, 2002 WL 31246589 (3d Cir. Law for Precautionary Measures under Article 25 of Oct. 8, 2002) (finding no First Amendment right of the Commission’s Regulations, Feb. 25, 2002; Letter access to such proceedings). of Juan E. Méndez, C omm ission President, to 16 Jennifer M. Green et al., R ef. Detain ees in See Holy Land Found. for Relief & Dev. v. Guantanamo Bay, Cuba, Mar. 13, 2002 (both on file Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002) (ruling with author); Response of the U nited States to that government-proffered documents showed that Request for Precautionary Measures - Detainees in Muslim charity was terrorist organization, thus Guantanamo Bay, Cuba, Apr. 15, 2002, reprinted in justifying seizure of assets); Global Relief Found. v. 41 I.L.M. 1015 (2002). O’Neill, 205 F. Supp. 2d 885 (N.D. Ill. 2002) (sustaining Patriot A ct provision that p ermits 11 Katharine Q. Seelye, Judge Questions Detention of government, pending further investigation, to freeze Americans in War Case, N.Y. TIMES, Aug. 14, 2002, a suspect’s asset without demonstrating the suspect’s at A15. The hearing followed a remand opinion, ties to terrorism). Hamdi v. Rum sfeld, 296 F.3d 278, 283-84 (4th Cir. 17 2001), in which the Fourth Circuit had reserved See, e.g., Culombe v. Connecticut, 367 U.S. 568, judgment on the judicial review question. Further 595-98 (1961) (discussing at length English Judges appeal was pending in late 2002, even as a second Rules, which became a basis for warning requirement defend ant began to litigate a similar challenge. See enunciated in Miranda v. Arizona, 384 U.S. 436, 444 Katharine Q. Seelye, Court to Hear A rguments in (1966)). Groundbreaking C ase of U .S. Citizen S eized W ith Taliban, N.Y. TIMES, Oct. 28, 2002, at A13;
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18 American Declaration of the Rights and Duties of interference with .. privacy, family, home or Man, intro., O.A .S. Res. X XX, adopted by the Ninth corresponden ce,” id., art.17(1). International Conference of American States, Bogota, 22 1948, OAE/Ser.L/V/I.4 Rev. (1965); International On the right to a remedy, see id., art. 3(a) (obliging Covenant on Civil and Political Rights, intro., G.A. states parties to guarantee persons whose rights have Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at been violated “an effective remedy, notwithstanding 49, U.N . Doc. A /6316 (1967), reprinted in 999 that the violation has been committed by persons U.N.T.S. 171 (entered into force Mar. 23, 1976). The acting in an official capacity”), and Velásquez language in the ICCPR tracks that in the introduction Rodríguez Case, paras. 62-68, 4 Inter-Am. Ct. H.R. to the Universal Declaration of Human Rights, G.A. (ser. C) (1988) (interpreting guarantee of “effective Res. 217A(III), U.N. Doc. A/810, at 71 (1948), recourse” in American hum an rights convention to which the United States also endorsed. It is require that legal avenues be capable of providing augmented by Article 16 of the ICCPR, which states, relief). On the value of judicial oversight, see “Everyone shall have the right to recognition ICCPR, supra note 22, arts. 3(b), 9(4) (requiring, everyw here as a person before the law.” respectively, that states not only to provide determ ination by governmental officials, but also “to 19 See, e.g., U.S. reservations, declarations, and develop the possibility of judicial remedy,” and that understandings, International Covenant on Civil and “[a]nyone” detained be permitted “to take Political R ights, 138 Cong. Rec. S4781-01 (daily ed., proceedings before a court, in order that that court Apr. 2, 1992) (reserving freedom to continue some may d ecide w ithout delay on th e lawfulness of his U.S. practices contrary to the terms of the ICCPR, detention and o rder his release if the d etention is such as executions of minors, and further providing unlawful”). that no rig hts in the C ovenant may be enfo rced in 23 U.S. courts until Congress enacts implementing See Korematsu, 323 U.S. at 216. Decades later, statutes). convictions for resisting internment were set aside after it was shown that officials had fabricated their 20 The IC CPR establishes th e right to be free no t only claims of necessity. See Hirabayashi v. United “torture,” but also “cruel, inhuman or degrading States, 828 F.2d 591 (9th Cir., 1987); Korematsu v. treatment or punishment,”as nonderogable. ICCPR, United States, 584 F. Supp. 1406 (N.D. Cal., 1984). supra note 22, arts. 4(1), 7. Furthermore, U.S. law enacted to implement the Convention A gainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. DOC. A/39/51 (1984 ), includes within th e definition of tortu re, a crime punishable by death, the imposition of “severe mental pain or suffering,” which includes using procedures calculated to disrupt profoundly the senses or person ality.” 18 U.S.C. § § 2340, 2340A(a). Also im plicated b y this state action are the rights to be free from arbitrary d etention and interference with privacy , ICCPR , supra note 22, arts. 9(1), 17(1), as well as the right to b e treated d uring detention “with humanity and with respect for the inherent dignity of the human person,” id., art. 10(1).
21 These would include both the right to liberty and security o f the person, ICC PR, supra note 22 , art. 9(1), and the freedom from “arbitrary or unlawful
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3. Was John Walker Lindh a Victim of coercive techniques included: “incommunicado Torture? detention; food, sleep, and sensory deprivation; denial of a timely presentment before a By: William J. Aceves* magistrate; denial of clothing and proper medical care; humiliation; and failure to inform I. Introduction Mr. Lindh of his rights, to name just a few.” Defendant’s Memorandum of Points and On July 15, 2002, John Walker Lindh, Authorities in Support of Motion to Suppress the “American Taliban,” made a brief Involuntary Statements, United States v. Lindh, appearance in federal district court for the Crim. No. 02-37-A, (Jun 17, 2002), at 1. Eastern District of Virginia. At the hearing, Indeed, these assertions formed the basis for one Lindh pled guilty to supplying services to the of Lindh’s principal defenses: any statements Taliban and carrying an explosive during the acquired from him through coercion must be commission of a felony. He was subsequently suppressed. sentenced to 20 years in prison. Was John Walker Lindh a victim of As part of his plea agreement, Lindh torture or cruel, inhuman or degrading accepted several conditions. He agreed to treatment? The conclusory statements in his cooperate with the United States in any plea agreement denying mistreatment are in subsequent investigations. He accepted future conflict with the detailed nature of his earlier designation as an unlawful enemy combatant if assertions. If the factual allegations set forth in he violated certain provisions of federal law. Lindh’s earlier submissions are true, a He assigned to the United States any future compelling case can be made that Lindh was profits that he may receive in connection with subject to cruel, inhuman or degrading the publication of information relating to his treatment. Indeed, a plausible argument can be activities in Afghanistan. Lindh also made that Lindh was subjected to torture. acknowledged that he was not intentionally mistreated by the U.S. military during his II. The Case of John Walker Lindh detention. According to the terms of the plea agreement, “[t]he defendant agrees that this In June 2001, John Walker Lindh agreement puts to rest his claims of entered Afghanistan to assist the Taliban mistreatment by the United States military, and government in suppressing the Northern all claims of mistreatment are withdrawn.” Plea Alliance.1 After receiving military training, Agreement, United States v. Lindh, Criminal Lindh was sent to the front lines of the conflict No. 02-37A, (July 15, 2002). in northeastern Afghanistan. He was serving the This statement, however, contradicts Taliban regime in this capacity when the attacks allegations made by Lindh in earlier court of September 11, 2001 occurred. After documents. In several submissions, Lindh had September 11th, Lindh continued to fight on alleged that he was subject to coercion by U.S. behalf of the Taliban against the Northern military personnel in Afghanistan. These Alliance. On approximately November 24, 2001, Lindh surrendered to Northern Alliance troops * William J. Aceves is Professor of Law and under the command of General Abdul Rashid Director of the International Legal Studies Program Dostum. At the time of his surrender, Lindh at California Western School of Law. He is a Board was ill and weak from shock, exhaustion, member of the ACLU of San Diego and Imperial dehydration, and hunger. He was detained at Counties.
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Qala-i Janghi, a military complex near Mazar-e any criminal proceedings. While he was Sharif. On or about November 25, 2001, Lindh receiving medical treatment, U.S. military was seated on the ground level of the fort when personnel interrogated Lindh. Afterward, he a large explosion occurred nearby. As Lindh was transported to a nearby compound, where attempted to flee, he was shot in the leg and he was again interrogated. collapsed. Lindh remained on the ground for On the following day, Lindh was bound, several hours as gunfire and explosions hooded, and taken to the Turkish School House continued in the fort. By nightfall, the fighting at Mazar-e Sharif, where he was kept bound and had subsided. With the assistance of several blindfolded. During this detention, Lindh prisoners, Lindh was moved to the basement of remained malnourished and dehydrated. He the fort, where he would remain for was provided with minimal food and medical approximately seven days. assistance. His requests for additional food and During his stay in the basement, Lindh medical attention were denied. On several and the other prisoners were subject to repeated occasions, he was subjected to derogatory attacks. His captors threw hand grenades remarks by U.S. military personnel. During this through the ventilation ducts in the basement, detention, U.S. government agents interrogated killing several prisoners. They also fired Lindh. They never informed him of his right to rocket-propelled grenades into the basement. legal counsel. Indeed, his requests for counsel Lindh suffered several shrapnel wounds as a were denied. Despite his injuries, Lindh result of these attacks. On approximately the cooperated with his interrogators. After these fourth day of Lindh’s captivity, fuel oil was interrogations were concluded, Lindh was poured into the basement and ignited, burning provided more food. many prisoners. On approximately the fifth On December 7, 2001, U.S. military day, the basement was flooded with water, personnel entered Lindh’s room and took drowning several prisoners. Countless prisoners photographs of him while he was bound and were killed indiscriminately throughout this blindfolded. They also made derogatory and seven-day period. threatening statements. Lindh was then On December 1, 2001, Lindh emerged transported by aircraft to Camp Rhino, a U.S. from the basement, where he was immediately Marine installation located 70 miles from detained by Northern Alliance soldiers. He was Kandahar, Afghanistan. During the transport, then transported with other prisoners to he remained blindfolded and handcuffed. The Sheberghan, where there was a hospital and plastic straps used to bind his hands cut into his prison. U.S. military personnel were located at skin and cut off circulation to his hands. As a this facility. Eventually, Lindh was identified as result, his wrists remained scarred and numb for a U.S. national and given medical assistance by several months. U.S. military personnel. According to a U.S. Upon arrival at Camp Rhino, Lindh was medic that treated him, Lindh had “sustained an stripped naked and bound to a stretcher “with apparent gunshot wound in the left leg, was heavy duct tape wrapped tightly around his malnourished and in extremely poor overall chest, upper arms, ankles and the stretcher condition.” A U.S. Special Forces officer noted itself.” He remained blindfolded. He was then that “Lindh appeared to be suffering from placed in a metal storage container with no hypothermia, and exposure, and acted windows, minimal ventilation, and no heat delirious.” Although Lindh received medical source. He was provided with minimal food treatment, the bullet was not removed from his and little medical attention. Guards shouted leg so that it could be later used as evidence in epithets at him through the ventilation holes in
12 INTERNATIONAL CIVIL LIBERTIES REPORT the container. Throughout his detention, “Mr. III. Torture and Cruel, Inhuman or Lindh’s hands and feet remained cuffed such Degrading Treatment Are Violations that his forearms were forced together and fully of International Law extended, pointing straight down toward his feet.” Eventually, a blanket was placed over his The prohibitions against torture and body, which had remained naked and fully other cruel, inhuman or degrading treatment exposed until then. When Lindh needed to have long been recognized in international law. urinate, his stretcher was propped up into a See, e.g., Universal Declaration of Human vertical position. During this detention, Lindh Rights (Article 5: “No one shall be subjected to experienced pain from his untreated injuries. torture or to cruel, inhuman or degrading Due to his injuries, hunger, and exposure, Lindh treatment or punishment.”). According to the was unable to sleep. He remained under these authoritative Restatement (Third) of the Foreign conditions for two days. Relations Law of the United States On December 9, 2001, Lindh was (“Restatement (Third)”) § 702(d), “[a] state dressed in a hospital gown and taken from the violates international law if, as a matter of state storage container while blindfolded and policy, it practices, encourages, or condones . . . handcuffed. He was taken to a tent, placed on a torture or other cruel, inhuman, or degrading cot, and his blindfold was removed. A person treatment or punishment . . . .” who identified himself as an FBI agent began interrogating him. Despite his request, Lindh A. Torture is a Violation of was not provided a lawyer. Furthermore, he International Law was not informed that his family had already contacted a lawyer to represent him. The The prohibition against torture is interrogation continued despite Lindh’s physical recognized in all major international human injuries and mental trauma. After this rights instruments. See, e.g., International interrogation, Lindh’s treatment improved. His Covenant on Civil and Political Rights restraints were loosened, and the duct tape was (“ICCPR”) (Article 7: “No one shall be removed from his body. He was provided with subjected to torture or to cruel, inhuman or more food and an additional blanket. degrading treatment or punishment.”). The On approximately December 14, 2001, most extensive definition of torture appears in Lindh was transferred to the U.S.S. Peleliu, the Convention against Torture and Other Cruel, which was located in the Indian Ocean. Inhuman or Degrading Treatment or “Government disclosures indicate that Mr. Punishment (“Convention against Torture”). Lindh was suffering from dehydration, mild Article 1 defines torture as “any act by which hypothermia and frostbite and could not walk severe pain or suffering, whether physical or when he arrived on board . . . .” While onboard, mental, is intentionally inflicted on a person for he was provided with medical assistance and such purposes as obtaining from him or a third received surgery for his wounds. On January 6, person information or a confession, punishing 2002, Lindh was allowed to receive written him for an act he or a third person has communications from his parents and the committed or is suspected of having committed, lawyers retained to represent him. Lindh or intimidating or coercing him or a third remained on the Peleliu until he was transferred person, or for any reason based on to the United States on January 23, 2002. discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
13 INTERNATIONAL CIVIL LIBERTIES REPORT official or other person acting in an official torture. For example, the Special Rapporteur capacity.” has indicated that the prohibition against torture The U.N. Human Rights Committee, “relates not only to acts that cause physical pain which was established to monitor compliance but also to acts that cause mental suffering to with the ICCPR, has clarified the nature of the the victim, such as intimidation and other forms prohibition against torture in several statements. of threats.” Report of the Special Rapporteur on In General Comment No. 20, the Committee the Question of Torture and Other Cruel, indicated that the prohibition against torture is Inhuman or Degrading Treatment or designed to “protect both the dignity and the Punishment, U.N. Doc. A/56/156 (2001), at physical and mental integrity of the individual.” para. 3. Accordingly, threats to the physical Human Rights Committee, General Comment integrity of the victim “can amount to cruel, No. 20, U.N. Doc. HRI/GEN/l/Rev.5 (2001), at inhuman or degrading treatment or even to para. 2. The determination of whether torture torture, especially when the victim remains in has occurred requires an assessment of all the the hands of law enforcement officials.” Id., circumstances of the case, “such as the duration para. 8. In his most recent report to the U.N. and manner of the treatment, its physical or General Assembly, the Special Rapporteur mental effects as well as the sex, age and state expressed deep concern about the use of torture of health of the victim.” Vuolanne v. Finland, in response to terrorism, and he reiterated that Communication No. 265/1987, U.N. Doc. Supp. international law prohibits any derogation from No. 40 (A/44/40) at 249, 256 (1989). Thus, the prohibition against torture, even in time of subjective factors can aggravate the effect of war. Report of the Special Rapporteur on the certain treatment. The Human Rights Question of Torture and Other Cruel, Inhuman Committee has identified numerous acts that or Degrading Treatment or Punishment, U.N. constitute torture.2 See, e.g., Cariboni v. Doc. A/57/173 (2002), at para. 24. Uruguay, Communication No. 159/1983 Regional agreements also prohibit (abducting petitioner, keeping him hooded, torture. For example, the American Convention bound, and seated for extended periods of time, on Human Rights (“American Convention”) providing him with minimal food, and provides that “[n]o one shall be subjected to subjecting him to hallucinogenic substances and torture or to cruel, inhuman, or degrading psychological abuse constitutes torture); punishment or treatment.” The Inter-American Herrera Rubio v. Colombia, Communication Court of Human Rights, which reviews state No. 161/1983 (beating and near drowning, compliance with the American Convention, has hanging the detainee by his arms, and noted that Article 5 prohibits torture “and that threatening his family members constitutes all persons deprived of their liberty should be torture); Muteba v. Zaire, Communication No. treated with respect for the inherent dignity of 124/1982 (beatings, mock executions, electric the human person.”3 The Inter-American shocks, deprivation of food, and Commission on Human Rights, which also incommunicado detention constitutes torture); monitors compliance with the American Estrella v. Uruguay, Communication No. Convention, has made similar findings. See, 74/1980 (abducting petitioner from his home, e.g., Case 10.574 (El Salvador) (applying blindfolding him, and threatening him with electrical shocks to detainee, burning him with amputation of his hands constitutes torture). cigarettes, beating him, and putting a hood over The U.N. Special Rapporteur on his head constitutes torture). Torture, established by the U.N. Commission on Article 3 of the European Convention Human Rights, has issued many statements on for the Protection of Human Rights and
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Fundamental Freedoms (“European The prohibition against cruel, inhuman Convention”) provides that “[n]o one shall be or degrading treatment is also recognized in all subjected to torture or to inhuman or degrading major international human rights instruments. treatment or punishment.” The European Court See, e.g., International Covenant on Civil and of Human Rights, which reviews compliance Political Rights (Article 7: “No one shall be with the European Convention, has indicated subjected to torture or to cruel, inhuman or that the prohibition against torture is one of the degrading treatment or punishment.”). The most fundamental values of a democratic Convention Against Torture prohibits cruel, society and is, therefore, non-derogable. As the inhuman or degrading treatment although its European Court noted in Selmouni v. France, definition is limited in scope. Article 16(1) “[e]ven in the most difficult circumstances, such provides that “[e]ach State Party shall undertake as the fight against terrorism and organized to prevent in any territory under its jurisdiction crime, the Convention prohibits in absolute other acts of cruel, inhuman or degrading terms torture or inhuman or degrading treatment treatment or punishment which do not amount or punishment.” Selmouni v. France, 29 to torture as defined in article 1, when such acts E.H.R.R. 403, 440 (1999). In Selmouni v. are committed by or at the instigation of or with France, the European Court held that severe the consent or acquiescence of a public official and repeated police beatings that left marks on or other person acting in an official capacity.” the body of a detainee constitute torture. Id. at The U.N. Human Rights Committee has 442-443. See also Aydin v. Turkey (1997) affirmed the prohibition against cruel, inhuman (blindfolding, beating, and raping a detainee or degrading treatment on numerous occasions. constitutes torture); Aksoy v. Turkey (1997) See, e.g., Tshishimbi v. Zaire, Communication (stripping detainee with arms tied behind his No. 542/1993 (abducting petitioner and placing back and suspending him by the arms him in incommunicado detention constitutes constitutes torture). cruel and inhuman treatment); Mukong v. Finally, the African Charter on Human Cameroon, Communication No. 458/1991 and Peoples’ Rights provides that “[a]ll forms of (placing petitioner in incommunicado detention, exploitation and degradation of man particularly depriving him of food, and threatening him with slavery, slave trade, torture, cruel, inhuman or torture and death constitutes cruel, inhuman and degrading punishment and treatment shall be degrading treatment). prohibited.” The African Commission on The prohibition against cruel, inhuman Human and Peoples’ Rights, which was or degrading treatment is also recognized in all established to monitor compliance with the the regional instruments. For example, Article 5 African Charter, has found various actions to of the American Convention on Human Rights constitute torture. See, e.g., Amnesty provides that “[n]o one shall be subjected to International et al. v. Sudan, Comm. Nos. torture or to cruel, inhuman, or degrading 48/90, 50/91, 52/91, 89/93 (2000) (placing punishment or treatment.” The Inter-American detainees in small cells, soaking them with cold Commission on Human Rights has found water, and subjecting them to mock executions several acts to constitute cruel, inhuman or constitutes torture). degrading treatment. See, e.g., McKenzie v. Jamaica, Case No. 12.023 (2000) (keeping B. Cruel, Inhuman or Degrading prisoners in overcrowded conditions for 23 Treatment is a Violation of hours a day with inadequate sanitation, poor International Law lighting and ventilation constitutes cruel, inhuman and degrading treatment); Valladares
15 INTERNATIONAL CIVIL LIBERTIES REPORT v. Ecuador, Case No. 11.778 (1998) (holding man particularly slavery, slave trade, torture, petitioner incommunicado for more than 22 cruel, inhuman or degrading punishment and days constitutes cruel, inhuman or degrading treatment shall be prohibited.” The African treatment); Congo v. Ecuador, Case No. 11.427 Commission on Human and Peoples’ Rights (1998) (holding detainee in a small isolated cell has found various actions to constitute cruel, constitutes inhuman and degrading treatment). inhuman or degrading treatment. See, e.g., The European Convention for the Media Rights Agenda v. Nigeria, Comm. No. Protection of Human Rights and Fundamental 224/98 (2000) (chaining detainee to the floor Freedoms also prohibits inhuman or degrading while in solitary confinement constitutes cruel, treatment. Article 3 provides that “[n]o one inhuman or degrading treatment); Huri-Laws v. shall be subjected to torture or to inhuman or Nigeria, Comm. No. 225/98 (2000) (detaining degrading treatment or punishment.”4 The petitioner in a dirty cell without charge and European Court of Human Rights has without access to medical attention constitutes recognized that determinations of whether cruel, inhuman or degrading treatment). torture or other inhuman or degrading treatment In sum, international law prohibits both have occurred depend on the unique torture and cruel, inhuman or degrading circumstances of the case and the status of the treatment. A review of international practice individual victim. See, e.g., Tyrer Case , 2 affirms the universal, definable, and obligatory E.H.R.R. 1 (1978). According to the Court, the nature of these fundamental norms. Indeed, the distinction between torture and inhuman or prohibitions against torture and cruel, inhuman degrading treatment derives principally from or degrading treatment are so embedded in the differences in the intensity of the suffering pantheon of international law that they have inflicted. Ireland v. United Kingdom, 2 been found to be jus cogens norms – non- E.H.R.R. 25, 80 (1979). Thus, torture derogable obligations that bind all states.6 It is constitutes deliberate treatment that causes not surprising, therefore, that the United States suffering of particular cruelty and intensity.5 has accepted the prohibitions against torture and The European Court has found various acts to other cruel, inhuman or degrading treatment constitute inhuman or degrading treatment. See, through its ratification of the International e.g., Tekin v. Turkey (2001) (blindfolding a Covenant on Civil and Political Rights and the prisoner, threatening him with death, providing Convention against Torture as well as through no bed or blankets, denying food and liquids, its signature of the American Convention on stripping him naked and hosing him with cold Human Rights. The United States has also water, and beating him with a truncheon recognized these prohibitions in countless constitutes inhuman and degrading treatment); executive, legislative, and judicial Ribitsch v. Austria (1996) (beatings and abuse pronouncements.7 administered by police constitutes inhuman and degrading treatment); Ireland v. United IV. Was John Walker Lindh a Victim of Kingdom (1979) (use of five interrogation Torture and Cruel, Inhuman or techniques consisting of wall-standing, hooding, Degrading Treatment? subjection to noise, sleep deprivation, and deprivation of food and water constitutes Torture and cruel, inhuman or inhuman and degrading treatment). degrading treatment are closely related. The Finally, Article 5 of the African Charter difference between these two violations of on Human and Peoples’ Rights provides that international law can be measured by the “[a]ll forms of exploitation and degradation of severity of the act and the degree of suffering.
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“Degrading treatment” is an act that tends to improved after he was interrogated. humiliate the victim; “inhuman treatment” is the Throughout his detention in Afghanistan, Lindh deliberate infliction of severe mental or physical was not provided legal assistance or contact suffering.8 Torture constitutes the most with judicial authorities. aggravated form of severe mental or physical Treatment of this nature has been found suffering. “So, for torture to occur, a scale of to constitute cruel, inhuman or degrading criteria has to be climbed. First, the behavior treatment. In Ireland v. United Kingdom, for must be degrading treatment; second, it must be example, the European Court of Human Rights inhuman treatment; and third, it must be an was asked to consider whether the use of five aggravated form of inhuman treatment, inflicted interrogation techniques constituted torture and for certain purposes.”9 Thus, torture requires inhuman or degrading treatment. The five purpose – it is inflicted to threaten, coerce, or techniques consisted of the following: (a) wall- punish; cruel, inhuman or degrading treatment standing; (b) hooding; (c) subjection to noise; has no comparable mens rea requirement. In (d) sleep deprivation; and (e) deprivation of sum, determinations of whether torture or cruel, food and water. According to the Court, “[t]he inhuman or degrading treatment have occurred five techniques were applied in combination, require an assessment of all the circumstances in with premeditation for hours at a stretch; they the case, including the form and duration of caused, if not actual bodily injury, at least mistreatment, the level of suffering, the physical intense physical and mental suffering to the and mental status of the victim, and the persons subjected thereto and also led to acute objective of the perpetrator. psychiatric disturbances during interrogation.” As a preliminary matter, Lindh’s Ireland v. United Kingdom, 2 E.H.R.R. at 79- physical and mental condition prior to capture 80. Based on these findings, the European Court provides an indispensable context for concluded that these interrogation techniques considering his treatment after capture. During constituted inhuman treatment. They were also his detention by the Northern Alliance, Lindh “degrading since they were such as to arouse in was subjected to numerous attempts on his life their victims feelings of fear, anguish and and witnessed the death of many other inferiority capable of humiliating and debasing prisoners. He was shot and wounded. Shrapnel them and possibly breaking their physical or and a bullet were embedded in his body. In moral resistance.” Id. at 80. addition, Lindh suffered from severe battlefield While the European Court did not find trauma, hypothermia, and malnutrition. the requisite intensity and cruelty in the Once Lindh was detained by U.S. techniques to give rise to a torture claim in military personnel, his treatment caused further Ireland v. United Kingdom, the Lindh case is deterioration to his physical and mental quite different. For example, Lindh’s physical condition. He was stripped naked, blindfolded, and mental condition was already severely and taped to a stretcher. He was held in a weakened when he was captured by U.S. storage container with minimal ventilation and military personnel.10 He was wounded and no heat source. Despite his wounds, Lindh malnourished. He was then immobilized and received limited medical attention. The bullet subjected to sensory deprivation. Lindh was was left in his body – not for medical reasons – also subjected to death threats during his but so that it could be used as evidence in detention. Apart from these factual distinctions, criminal proceedings. On several occasions, the European Court’s 1978 opinion in Ireland v. Lindh was subjected to death threats and United Kingdom must be read in historical intimidation. Lindh’s treatment apparently context. As noted by the European Court in
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Selmouni v. France, 29 E.H.R.R. at 442., the Despite the plea agreement denying definitions of torture and inhuman or degrading mistreatment, the United States Government has treatment set forth in its case law must be an obligation to investigate the allegations made interpreted in light of present-day conditions. by John Walker Lindh. Indeed, the Convention against Torture obligates the United States to [T]he Court considers that examine Lindh’s allegations.12 certain acts which were If Lindh’s allegations of mistreatment classified in the past as are verified, those who participated should be “inhuman and degrading held accountable for their acts. Appropriate treatment” as opposed to relief should be provided to Lindh, including “torture” could be classified rehabilitation and compensation. This may also differently in [the] future. [The compel reconsideration of Lindh’s plea Court] takes the view that the agreement.13 increasingly high standard In a constitutional democracy, state being required in the area of the action must conform to the rule of law. Neither protection of human rights and military necessity nor public emergency can fundamental liberties justify derogation from the most fundamental correspondingly and inevitably right protected by our democracy – the right to requires greater firmness in human dignity.14 “It would indeed be ironic if, assessing breaches of the in the name of national defense, we would fundamental values of sanction the subversion of one of those liberties democratic societies. . . . which makes the defense of the Nation worthwhile.”15 For these reasons, a compelling case can be made that Lindh was subject to cruel, Endnotes inhuman or degrading treatment.11 The case law strongly supports this finding. And yet, a 1 This section is base d on the Proffer of Facts in plausible finding of torture can also be made. Support of Defendant’s Suppression Motions On this claim, several factors require further submitted by Lindh to the federal district court for investigation. Was Lindh’s physical treatment the Eastern District of Virginia. See Proffer of Facts affected by his cooperation during the in Support of Defendant’s Suppression Motion, interrogations? Was Lindh’s medical treatment United States v. Lindh (Crim . No. 02-37-A). guided by non-medical considerations? What 2 The Hum an Rights Committee has noted, however, was the nature and scope of the harassment and that it is not necessary “to draw up a list of prohibited threats made toward Lindh? What was Lindh’s acts or to establish sharp distinctions between the mental condition throughout his detention? different kinds of punishment or treatment; the While there is a distinction between distinctions depend on the nature, purpose and torture and cruel, inhuman or degrading severity o f the treatm ent applied.” Hu man R ights treatment, no justification exists for either act. Committee, General Comment No. 20, U.N. Doc. They are both firmly prohibited by international HRI/GEN/1/Rev.5 (2001), at para. 4. law. 3 Neira Alegria et al. v. Peru, 3 INTERNATIONAL V. Conclusion HUMAN RIGHTS REPORTS 362, 382 (1996). See also Bamaca Velasquez v. Guatemala, 9 INTERNATIONAL HUMAN RIGHTS REPORTS 80, 137 (2002).
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4 The European Convention differs from other Doc. C AT/C/28/Ad d.5 (2000), at 5. international and regional instruments by not using 8 the term “cruel” in its definition of inhuman or See generally The Greek Case, 12 YEARBOOK OF degrading treatment. This omission has little, if any, THE EUROPEAN CONVENTION ON HUMAN RIGHTS: significance. 1969 at 186 (1972).
9 5 According to the European Commission on Human See generally NIGEL S. RODLEY, THE TREATMENT Rights, degrading treatment is defined as action that OF PRISONERS UNDER INTERNATIONAL LAW 77-78 interferes with the dignity of the individual. East (2d ed. 1999). African Asians v. United Kingdom, 3 E.H.R.R. 76 10 (1973). “It follows that an action, which lowers a In his concurring opinion, Judge Zekia indicated person in rank, position, reputation or character, can that the health of the detainee is a relevant factor to only be regarded as ‘degrading treatment’ in the be considered in determining whether torture has sense of Article 3, where it reaches a certain level of occurred. Ireland v. United Kingdom, 2 E.H.R.R. 25, severity.” Id. at 80. 109 (1979).
11 6 RESTATEMENT (THIRD) '702 cmt. n. A jus cogens The fact that these acts were committed in norm is a peremptory norm that binds all states. No Afghanistan does not obviate U.S. obligations under state may assum e release from these obligations. Id. international law. A s noted by the H uman Rights at '102, cmt. k. Committee, “it w ould be unconscionable to . . . permit a State party to perpetrate violations of the 7 In October 1999, the United States Government Covenant on the territory of another State, which issued its Initial Report to the Committee Against violations it could not perpetrate on its own Torture describing its compliance with the territory.” Saldias de Lopez v. Uruguay, Convention against Torture. In the Initial Report, the Communication No. 52/1979, UN Doc. United States Government reiterated that torture and CCPR/C/OP/1 at 88 (1984), at para. 12(3). cruel, inhuman or degrading treatment are 12 categorically denounced as a matter of policy and as In this respect, the Lindh case is unique. Unlike a tool of state authority. most cases of torture, corroborating evidence exists United States law contains no in this case. Photographs and video footage confirm provision permitting otherwise several of Lindh’s allegations. Government prohibited acts of torture or other transcripts provide additional support. cruel, inhuman or degrading 13 treatment or punishment to be Article 15 of the Convention against Torture employed on grounds of exigent provides that “[e]ach State Party shall ensure that any circumstances . . . or on orders statement which is established to have been made as from a superior officer or public a result of torture shall not be invoked as evidence in authority, and the protective any proceedings, except against a person accused of mechanisms of an independent torture as evidence that the statement was m ade.” judiciary are not su bject to 14 suspension. The United States is See generally Malco lm D. E vans, Getting to Grips committed to the full and effective With Torture, 51 INT’L & COMP. L.Q. 365 (2002). implementation of its obligations But see Winfried Brugger, May Government Ever under the Convention throughout Use Torture? Two Responses From German Law, 48 its territory. AM. J. COMP. L. 661 (2002). Committee Against Torture, “Consideration 15 of Reports Submitted By States Parties United States v. Robel, 389 U .S. 258, 264 (1967). Under Article 19 of the Convention: United States of America” (Oct. 15, 1999), U.N.
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4. Death Penalty Cases customary international law and it has attained the status of a jus cogens peremptory norm of By: Connie de la Vega and Kathleen Dyer* international law. The major argument raised by A. Juvenile Offenders international human rights advocates opposed to the United State’s current policy on juvenile Introduction – No other nation has death penalty sentences is that it violates the jus executed juvenile offenders at the rate practiced cogens norm prohibiting the execution of in the United States. In fact, currently the few juvenile offenders. A jus cogens peremptory states in the United States that impose sentences norm is “a norm accepted and recognized by the of death to juvenile offenders are among the few international community of States as a whole as remaining organized political entities in the a norm from which no derogation is permitted world that continue to execute juvenile and which can be modified only by a subsequent offenders. Out of 193 nations in the world, only norm of general international law having the seven have executed juvenile offenders since same character.” Vienna Convention on the 1990. Among those seven nations, all except Law of Treaties, opened for signature May 23, Iran and the United States have instituted 1969, art. 53, 1155 U.N.T.S. 331, 352, 8 I.L.M. reforms eliminating juvenile offender 679, 698. To be considered a jus cogens executions completely. These stark facts peremptory norm, the norm must meet four suggest that the United States’ current policy is requirements: 1) it is general international law; contrary to the standards and policies of almost 2) it is accepted by a large majority of the states; every other nation in the world. In 2002 alone, 3) it is immune from derogation; and 4) it has the United States executed three additional not been modified by a new norm of the same young men, all of whom committed the crimes status. The prohibition against the execution of of their conviction under the age of 18. In offenders who were under the age of eighteen at addition to challenging the executions under the date of commission of their crime clearly United States laws, several arguments are being meets all four of the abovementioned made questioning these sentences under requirements. international law. First, several treaties, declarations, and pronouncements by international bodies, as well International Human Rights Arguments In as laws of the vast majority of the nations serve Support of Opposition to Juvenile Death as evidence that the prohibition is general Penalty Sentences international law. Second, the United States is the only country in the world that has not Juvenile Death Penalty Sentences Violate the accepted the international norm prohibiting the Jus Cogens Norm on International Law execution of juvenile offenders, proving the Prohibiting the Execution of Juvenile prohibition is accepted by a large majority of offenders – The prohibition against the the states. Third, the norm is non-derogable as execution of persons who were under eighteen the ICCPR expressly provides that there shall be years of age at the commission of their crime is no derogation from Article 6, which prohibits the imposition of the death penalty on juvenile * Connie de la Vega is a Professor of Law at offenders. And finally, there is no emerging University of San Francisco School of Law and norm that contradicts the current norm Kathleen Dyer is a Certified Law Student at the Civil prohibiting the execution of persons who were Litigation Clinic at University of San Francisco Schoo l of Law .
20 INTERNATIONAL CIVIL LIBERTIES REPORT under eighteen at the time they committed their ICCPR prohibits the death sentence for crimes crime. committed by persons under the age of 18. The Therefore, the prohibition against the United States attached a reservation to the treaty execution of juvenile offenders is a jus cogens reserving, “the right, subject to its peremptory norm. In effect, the United States’ Constitutional constraints, to impose capital current policy permitting the execution of punishment on any person, including such juvenile offenders is a clear violation of that punishment for crimes committed by persons norm below 18 years of age.” Senate Committee on Foreign Relations Report on the International International Treaties Binding on the United Covenant on Civil and Political Rights, 31 States and Customary International Law I.L.M. 645, 653-54 (1992). The reservation is Prohibit Application of the Death Penalty to invalid because it is incompatible with the Juvenile Offenders – Because, “[t]here can be purpose of the treaty, offends a peremptory no question that the law of the nations prohibits norm against the execution of persons under 18 the execution of juvenile offenders,” Blackmun, at the time of the offense, and attempts to H. The Supreme Court and The Law of Nations, reserve a non-derogable provision (the non- 104 YALE L.J. 39, 47-48 (1994), the United derogation clause of the ICCPR prohibits States’ current juvenile death penalty policy is derogation from Article 6). in juxtaposition to the law of nations. The United States Constitution as well as Cases Raising These Arguments: International Treaties binding on the United States make the death penalty policies practiced These international human rights in other countries relevant to the United States’ arguments were made on behalf of the own policy. defendants in all of the following cases. The intent of the framers to bind our courts to the law of nations is explicit in our Stanford v. Kentucky – The above Constitution. For example, Article I, Section 8 arguments were made on behalf of Kevin Clause 10, of our Constitution grants Congress Stanford, a black, male, juvenile offender the power to define and punish offenses against indicted for murder in November of 1981. the law of nations. Moreover, the Supremacy Despite these compelling arguments, the Clause, Article VI, Clause 2 deems international Supreme Court in Stanford v. Kentucky, 492 treaties to be part of the “supreme law of the U.S. 361 (1989), noted in its plurality decision land.” Not only does our own Constitution that the United States’ current practices with support the notion that the law of nations is regard to the juvenile death penalty does not relevant to the juvenile death penalty policies of violate evolving standards of decency. the United States, our country’s signatures to Stanford’s own attorneys and Professor the Convention on the Rights of the Child and Constance de la Vega from the University of the American Convention on Human Rights San Francisco School of Law made international which expressly prohibit the death penalty human rights arguments on his behalf. In an sentences for juvenile offenders supports this amici curiae brief, Professor de le Vega urged notion as well. the Supreme Court to consider international Furthermore, the United States’ human rights law in juvenile death penalty reservation to Article 6, paragraph 5 of the cases. The brief argued that prohibition of International Covenant on Civil and Political juvenile death sentences is a jus cogens norm of Rights (ICCPR) is invalid. Article 6(5) of the international law and by allowing execution of
21 INTERNATIONAL CIVIL LIBERTIES REPORT juvenile offenders, the United States effectively significantly impaired but not so impaired as to violates that norm. For a more detailed version constitute a defense. Secondly, the Defense of the argument see, Amici Curiae Urge the proved by a preponderance of the evidence the U.S. Supreme Court to Consider International existence of mitigating factor ARS § 13-703 (G) Human Rights Law in Juvenile Death Penalty (5) as Defendant’s chronological age was 16 Case, 42 Santa Clara L. Rev. 1041(2002). years, 8 months and he was an individual with a Unfortunately, Stanford’s petition for significant lack of intelligence and maturity, as writ of habeas corpus was denied on October 21, proved by the testimony of two doctors. 2002. However, Justice Stevens wrote a Ultimately, the Court found that the powerful dissenting opinion joined by Justice mitigating factors were sufficient to call for a Souter, Justice Ginsburg and Justice Breyer leniency in sentencing. In a challenge to the expressing disdain for the United States’ current death penalty, Professor Victor Streib testified policy allowing executions of juvenile about the practice of other western states offenders. In the dissent, Stevens wrote, “The regarding the juvenile death penalty. Professor practice of executing such offenders is a relic of Connie de la Vega testified regarding the the past and is inconsistent with evolving international standards. The court ignored the standards of decency in a civilized society. We international human rights arguments that were should put an end to this shameful practice.” made on behalf of the defendant. 2002 WL 984217 (Mem). Arizona v. Petronas-Cabanas (CR Arizona v. Aguilar (CR 1997-009340) 199-004790) – Felipe Pertona-Cabanas plead – On March 8, 2001, Defendant Tonatihu guilty to count 2 murder in the first degree of Aguilar, represented by Robert L. Storrs and Officer Marc Atkinson on July 19, 2002. Felipe Bruce E. Blumberg, was found guilty of Count was 17 years old at the time of his offense. He II, Murder in the First Degree in the Superior was represented by Vikki Liles of Phoenix, Court of Arizona, Maricopa County, for the Arizona. Evidence presented proved that Felipe death of Sandra Imperil. Following the guilty was born into extreme poverty in Cerrito de verdict, the Court conducted a hearing pursuant Oro, Guerrero, Mexico. Despite these to ARS § 13-703. Pursuant to the hearing, the impoverished conditions Felipe was provided Court found that the State proved beyond a with love and moral support from his family and reasonable doubt the existence of two community. In effort to escape the poverty he aggravating factors: 1) factor ARS § 13-703 (F) grew up in, Felipe came to the United States to (6) that, based on the circumstances surrounding find work. It is in the United States that Felipe it, the killing of Sandra Imperial was especially got caught up in selling drugs and carrying a cruel; and 2) factor ARS § 13-703 (F) (8) which weapon. Felipe, who had no prior record, relates to the conviction by the killing of Hector expressed remorse for his act very early on. He Imperial, represented in Count I. accepted full responsibility for his act and plead Additionally, the Court found that the guilty knowing that his pleas would not save Defendant proved by a preponderance of the him from a life sentence, which is what he evidence two statutory mitigating factors. First, received. Sandra Babcock filed an amicus brief the Defense proved the existence of the on behalf of the Mexican Government mitigating factor ARS § 13-703 (G) (1) which challenging the death penalty. Professors Streib exists when the Defendant’s capacity to and de la Vega also testified. appreciate the wrongfulness of his conduct or conform his conduct to requirements of law is Inter-American Commission Cases:
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Alexander Williams – Alexander a jus cogens norm and, accordingly, Michael’s Williams, who has been diagnosed with severe death sentence was in violation of that norm. schizophrenia, was sentenced to death for a The Commission took into account several crime he committed as a juvenile. Williams was factors in coming to this decision. First, it represented by Brian Mendlesohn of Atlanta, found that since its decision in 1987 in the Georgia. The U.S.F. Law Clinic also Pinkerton and Roach cases several represented Mr. William in a petition to the developments have occurred including new Inter-American Commission on human rights. international agreements and a broadened (See 2001 ACLU Report). When Mr. Williams ratification of existing treaties to explicitly was scheduled to be executed, Lindsay prohibit executions of juvenile offenders who Hortsman wrote a letter to the Inter-American were under 18 years of age at the time of the Commission on Human Rights updating the crime. Second, The United Nations bodies status of the case and requesting immediate responsible for human rights and criminal assistance on the case. In response to the letter, justice have consistently supported international the Inter-American Commission on Human human rights agreements prohibiting the Rights re-issued a precautionary measure execution of offenders who were under the age request in his pending case which was of 18 at the time of the crime. Third, the forwarded to the Georgia Board of Pardons and international practice over the past 15 years Paroles. On February 25, 2002, hours before evidences an almost unanimous trend toward the execution of Alexander Williams was to be prohibiting juvenile offender executions. This carried out, the Georgia State Board of Pardons trend isolates the United States as the only and Paroles commuted his sentence to life country that continues to execute such without parole. This was a success story of the offenders. Fourth, among the states of the many efforts that were made by so many United States 38 states and the federal and different people. military civilian jurisdictions authorize the death penalty for capital crimes. Of those 38, Michael Dominguez (Report No. 62/02 16 have chosen 18 (at the time the crime was Case no. 12.285) – Michael Dominguez was committed) as the minimum age for eligibility. convicted and sentenced to death for two Fifth, declaring 18 as the minimum age for homicides that occurred in Nevada in 1993. death eligibility is consistent with developments Michael was 16 when he committed the crimes. in other fields of international law that require He was represented by Mark Blaskey. The 18 as the minimum age for the imposition of international argument made on his behalf serious and fatal obligations and before the Inter-American Commission on responsibilities. For example, those under age Human Rights was that the United States’ 18 are not allowed to be involved in hostilities current death penalty policy with respect to as members of the armed forces. Taking all of juvenile offenders is in violation of an these factors into account the Commission international jus cogens norm prohibiting decided that prohibiting executions of offenders executions of such offenders. The argument under the age of 18 at time of their offense is a was also made that the current death penalty jus cogens international norm. scheme in the United States has resulted in the The Commission also noted that in light arbitrary deprivation of life and inequality by of this decision governments are obligated to the law. respond by assuring their current death penalty The Commission held that prohibition procedures are not in violation of this jus cogens of executions of offenders under the age of 18 is
23 INTERNATIONAL CIVIL LIBERTIES REPORT norm. Accordingly, the Commission made the and T.J. Jones. These have been the only following recommendation to the United States: executions of juvenile offenders in the world in 2002. 1. Provide Michael Domigues with an effective remedy, which Napoleon Beazley – Napoleon Beazley includes commutation of was an African American convicted by an all- sentence. white jury for killing a white man during a car jack gone bad. Although he demonstrated 2. Review its laws, procedures and extreme remorse and had no prior criminal practices to ensure that capital history he was sentenced to death and executed punishment is not imposed upon in May, 2002. On the eve of his execution person who, at the time their Napoleon Beazley said to Janet Elliott of the crime was committed were Houston Chronicle, “[i]f I was the last juvenile under 18 years of age. executed then I would be pleased with that because I’d know that what I’ve done for the The Commission also emphasized the last eight years mattered.” Unfortunately, with obligation that OAS member states have to the United States’ current policy on death respond to its communications, including those penalty sentences for juvenile offenders it pertaining to petitions that complain of human appears as if Napoleon Beazley will not be the rights violations attributable to a member State. last juvenile executed. Mr. Beazley was In a concurring opinion, Helio Bicudo represented by Walter Long and David Botsford expressed his own opinion and of Austin Texas. understanding of the lawfulness of the death For more information on Napolean penalty in the Inter-American System. In that Beazley’s case see 2001 ACLU Report. opinion he expressed his belief that the death penalty brings suffering to the individual who is T.J. Jones – In this case, the State’s sentenced. In effect, he argues that the is a evidence alleged that on February 2, 1994, four contradiction among the articles of The youths, including T.J., who was armed with a American Convention on Human Rights which pistol, approached Mr. Willard Davis. reject torture, cruel, inhumane, or degrading Allegedly T.J. ordered Mr. Davis to get out of punishment or treatment. He also argued that his car, Mr. Davis complied, and then T.J. shot the death penalty is supposed to be inflicted on him in the forehead and drove away with his those guilty of only the most serious crimes. accomplices in Mr. Davis’s car. T.J. took full Ultimately, he argues in his concurring opinion responsibility for his actions. that there is a tendency toward restricting T.J. was evaluated by Dr. Craig Moore application of the death penalty and ultimately it who diagnosed T.J. with schizoid personality should be abolished. disorder, which renders him unable to relate to people and unable to properly participate in the Juvenile Executions 2002 – Despite the give and take of relationships. Dr. Moore also compelling international human rights observed that T.J. might have suffered from a arguments made in opposition to juvenile neurological problem indicated by his sudden offender death penalty sentences, the United acts of violence. Despite T.J.’s age of 17 years States executed three juvenile this year. The old, according to Dr. Moore psychologically three juvenile offenders executed in Texas this T.J. was more like a ten or twelve year old. In year are Napoleon Beazley, Toronto Patterson addition, T.J.’s full scale IQ was tested at 78 (a
24 INTERNATIONAL CIVIL LIBERTIES REPORT score below 70-75 classifies one as mentally baby sister, whose death strongly impacted him. retarded according to the American Association Sadly, these mitigating factors were never of Mental Retardation), and Dr. Moore testified presented to the jury. Thus, the jury was never that T.J. was borderline retarded. given the opportunity to consider a more human Not only did T.J. have psychological and vulnerable side to Toronto. Toronto was and possible mental retardation issues, he executed on August 28, 2002. suffered physical abuse at home and The decision in Toronto’s case is estrangement from his parents with may have particularly significant to the overall issue of intensified his psychological problems. T.J.’s juvenile death penalty because of a dramatic mother was beaten by his father when she was dissenting opinion issued by 3 justices. pregnant with T.J. T.J. was an only child and Normally U.S. Supreme Court orders upholding had to deal with his mother’s various male executions are very tightly written and give little partners. At least one such partner was violent explanation beyond permission to carry out the towards his mother. His mother testified that sentence. However, in Toronto’s case, three when the violence between she and her partner Justices, John Paul Stevens, Ruth Bader commenced T.J. would hum, shake, and rock Ginsburg and Stephen Breyer issued a stopping only when the violence stopped. dissenting opinion. This unusual procedure was T.J was executed on August 8, 2002. a dramatic commentary on the current state of juvenile executions in the United States. The Toronto Patterson – Toronto justices expressed reservations about the Patterson was an African American who was 17 propriety of executing Toronto in light of the years old at the time of his offense. On June 6, fact that he committed his crime at the young 1992 Valerie Brewer discovered the body of her age of 17. They pointed out that the United sister and her sister’s two daughters in her States is one among only a handful of the house. No valuables were taken from the house, world’s nations that allow the execution of but the wheels on a BMW in the garage were people who were juveniles when they found to be missing. Valerie knew that her committed their crime. In an opinion lending cousin, Toronto Patterson, had recently had his hope that the court might reconsider the current wheels stolen and she immediately thought of policy regarding execution of juvenile him as a suspect. Patterson told police that two offenders, Justice Steven wrote, “Given the Jamaican men forced he and his girlfriend at apparent consensus that exists among states and gunpoint to assist one of the men in removing in the international community against the the wheels from the BMW, while the other execution of a capital sentence imposed on a distracted Kimberly. Toronto consistently juvenile offender, I think it would be maintained this account of the events of June 6, appropriate to revisit the issue at the earliest 1995 and asserted he did not commit the opportunity.” 2002 WL 1986618 (Mem) (2002). murders. The identity of the killer was a highly Not only have members of the Supreme contested issue at the trial. Court spoken suggesting that the United States Toronto was raised by his teenage current policy of allowing death sentences to mother, with the help of his grandmother. He those who committed their crime of conviction was profoundly neglected in his childhood and under the age of 18 must be reexamined, several received regular whippings from his mother. organizations and lady Rosalyn Carter has Drug and alcohol abuse were prevalent in spoken out on the issue as well. An Toronto’s home life. At the young age of 9, he overwhelming number of groups asked for became the sole caretaker for his terminally ill clemency in all three cases. For example, the
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ABA, ACLU, Amnesty International USA, United States must join with practically every Child Welfare League of America, Human other nation in the world and eliminate juvenile Rights Advocates, Murder Victims Families for offenders from the possibility of execution. Reconciliation, and Youth Law Center all sent letters asking for clemency for the young men. MENTALLY RETARDED OFFENDERS Furthermore, in August, Lady Rosalyn Carter expressed her opposition to the execution of Atkins v. Viriginia, 122 S.CT. 2242 – juvenile offenders saying, “[I]t should be an In this recent Supreme Court decision (decided embarrassment to every American that we June 20, 2002) the Supreme Court held that the execute children. The United State is the only Constitution prohibits the application of the country in the industrialized world that still death penalty to mentally retarded persons. In executes anyone, and executing children puts us the decisions, Justice Stevens wrote that in the company of Somalia – only Somalia.” executions of mentally retarded persons She went on to argue that, “We don’t take care constitute cruel and unusual punishment of children in our country the way we should, prohibited by the Eighth Amendment. and then when they get into trouble we punish This decision is relevant to the issue of them severely.” Stephen Krupin, Former First executions of juvenile offenders because some Lady Call for Halt to Executions, The Atlanta of the same international human rights issues Journal and Constitution, Aug. 13, 2002, at A12. were raised For example, it was argued on With such compelling arguments and so behalf of Atkins that because other countries many people and organizations joining forces to have disapproved imposition of the death speak out against the execution of juvenile penalty for crimes committed by mentally offenders, hopefully our leaders will listen. The retarded persons the United States should also United States’ current policy allowing sentences disapprove such executions. Furthermore, in the of death to juvenile offenders is a blatant dissenting opinion written in In re Kevin Nigel violation of international law. The international Stanford, 2002 WL 984217, Stevens (joined by human rights arguments in opposition to Souter, Ginsburg, and Breyer) wrote that the juvenile offender executions are powerful and it reasons supporting the holding in Atkins apply appears that the arguments are not going with equal or greater force to the execution of unnoticed. juvenile offenders. Speaking out against the execution of In a related case, McCarver v. State of juvenile offenders is not done to minimize the North Carolina, a brief of amici curiae was excruciating grief suffered by the family and filed in support of Petitioner, Ernest Paul friends of the juvenile offenders’ victims. McCarver, raising important international Certainly, the crimes committed were tragic and human rights arguments relevant to the juvenile terribly wrong. However, it is a basic standard death penalty issue. The brief argued that of decency in America that only the most United States’ policy of executing mentally culpable criminals shall be put to death for their retarded offenders was inconsistent with crimes. By their very nature, adolescents who evolving international standards of decency. are not fully developed physically, cognitively, Furthermore, it argued that under the or emotionally cannot be considered among the jurisprudence of the Eighth and Fourteenth very worst of all criminals. It is absurd that Amendments, the Court cannot evaluate currently in the United States, juveniles are too evolving standards of decency without young to serve in the military or vote, but they considering international as well as domestic are not too young to die for their crimes. The opinions. Finally, it argued that the growing
26 INTERNATIONAL CIVIL LIBERTIES REPORT international consensus opposing the execution of mentally retarded offenders has increasingly isolated the United States diplomatically. All of these arguments are relevant to the juvenile death penalty issue because, like executions of the mentally retarded, the international consensus is against the execution of juvenile offenders.
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5. THE NEW REMEDIES OF the United States, a remedy that supplements WITHHOLDING AND DEFERRAL the traditional avenue of asylum. OF DEPORTATION UNDER THE The INS regulations provide that an TORTURE CONVENTION otherwise deportable alien may seek withholding of removal based on a claim that “it By: Dilan A. Esper* is more likely than not that he or she would be tortured if removed to the proposed country of In 1985, the United Nations removal”. 8 C.F.R. § 208.16(c)(2). The promulgated the Convention Against Torture testimony of the applicant, if credible, is and Other Cruel, Inhuman or Degrading sufficient to make the required showing, and all Treatment or Punishment. http://hrweb.org/ relevant evidence should be considered. 8 legal/cat.html The Torture Convention defines C.F.R. § 208.16(c)(2) & 208.16(c)(3). Aliens the offense of torture, Torture Convention, Art. convicted of “aggravated felonies”, who are 1 ¶ 1., and requires, among other things, that barred from seeking withholding of removal, state parties take effective steps to prevent may seek deferral of removal under the same torture from occurring, Torture Convention, Art. standard of proof. 8 C.F.R. §§ 208.16(c)(4) & 2., criminalize torture with appropriate penalties 208.17(a). Deferral of removal is temporary, that take into account the gravity of the offense, subject to review, and does not confer any right Torture Convention, Art. 4., and permit torture on the alien to remain in the United States. 8 victims to sue the perpetrator. Torture C.F.R. § 208.17(b). Convention Art. 14. One of the most important The standard for withholding or provisions of the Convention is Article 3, which deferring removal is at once broader and prohibits state parties from returning a person to narrower than a traditional asylum claim. another state where there are substantial Whereas an asylum claimant must prove a grounds for believing that he or she will be “credible fear” of “persecution”, the Torture tortured. Torture Convention, Art. 3 (“No State Convention claimant must meet the more Party shall expel, return (‘refouler’) or extradite exacting standard that it is “more likely than a person to another State where there are not” that he or she will not just be persecuted, substantial grounds for believing that he [or she] but tortured. On the other hand, asylum is not would be in danger of being subjected to available unless the persecution is based on the torture.”). applicant’s membership in some protected The United States ratified the Torture group (such as race, religion, or political Convention in 1995. In 1998, implementing affiliation). In contrast, if the likelihood of legislation was passed, and pursuant to the torture is established under the Torture implementing legislation, in 1999 the INS Convention, the reason for torture is irrelevant. promulgated regulations to implement Article 3. Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 8 C.F.R. §§ 208.16-208.18. These regulations 2002). created a new and important remedy for aliens who face the threat of harm upon removal from Defining Torture
The Convention’s long definition of torture, Torture Convention Art. 1 ¶ 1, contains * Dilan A. Esper is an associate in Stein & three elements: “severe pain or suffering, Flugge, LLP in Los Angeles. He is a cooperating whether physical or mental”, “intentionally attorney on many cases for the ACLU of Southern inflicted”, “at the instigation of or with the California.
27 INTERNATIONAL CIVIL LIBERTIES REPORT consent or acquiescence of a public official or prior to the activity constituting torture, have other person acting in an official capacity”. awareness of such activity and thereafter breach “Severe pain or suffering” is an elastic standard his or her legal responsibility to intervene to that connotes conduct that is sufficiently prevent such activity.” 8 C.F.R. § 208.18(a)(7). extreme and outrageous to fall within the scope The Board of Immigration Appeals has held that of universal condemnation by the international a “willful blindness” standard is appropriate for community. Price v. Socialist People’s Lybian determining acquiescence. In re S-V-, 2000 WL Arab Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 562836 (BIA 2000) (en banc). The Fifth Circuit 2002). The more intense, lasting, or heinous rejected a claim of acquiescence where the the injury, the more likely that it will constitute Honduran was tortured by landowners and the torture. Price, 294 F.3d at 92. police and justice system did not prosecute or It is clearly a fact specific inquiry. One punish them. Ontunez-Tursios v. Ashcroft, 303 court has indicated that “ordinary police F.3d 341, 354 (5th Cir. 2002). The Third brutality” is not torture. Price, 294 F.3d at 92; Circuit has also rejected a similar claim, holding accord Sevoian v. Ashcroft, 290 F.3d 166, 176- that only the state’s actions before the torture 77 (3d Cir. 2002) (police officer’s punching may be looked to in determining acquiescence. applicant in the face does not constitute torture). Sevoian, 290 F.3d at 176. Conversely, when the This proposition seems debatable, considering foreign government does arrest and investigate, that there’s no doubt that police brutality, such that has been held to bar a claim of as the beating of Rodney King, inflicts severe acquiescence. Ali, 237 F.3d at 598. physical pain and suffering. Another court has The Convention’s definition of torture indicated that multiple unjustified arrests, along contains an exception for “pain and suffering with deliberately crashing another car into the arising only from, inherent in or incidental to applicant’s car, does not constitute torture. Gui lawful sanctions”. Torture Convention Art. 1 ¶ v. INS, 280 F.3d 1217, 1230 (9th Cir. 2002). 1. The reason for this is obvious; serving a jail Again, this case seems questionable given the sentence may well inflict severe mental broad definition of torture in the Convention, suffering, yet the state’s power to incarcerate which applies to mental as well as physical pain criminals is unquestioned and is not thought to and suffering. Repeated beatings of the be torture. A troubling case, however, concerns applicant, along with burning him with a policy that Nigeria apparently has of inflicting cigarettes, was held to constitute torture. Al- additional punishment on drug convicts who are Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. deported from the US, on the ground that they 2001). Severe domestic violence may also “dishonored” Nigeria. A District Court found constitute torture. Ali v. Reno, 237 F.3d 591, that such sanctions were lawful and could not 598 (6th Cir. 2001) (dictum). A change in a give rise to a Torture Convention claim. foreign state’s government may show that past McDaniel v. INS, 142 F. Supp. 2d 219, 223 (D. torture will not recur and thus permit denial of Conn. 2001). The “lawful sanctions” provision the application. Kourteva v. INS, 151 F. Supp. surely exempts ordinary incarceration, but it 2d 1126, 1129 (N.D. Cal. 2001). could not have been intended as a blanket The Convention extends both to torture exemption of incarceration; after all, by state actors, and by private actors when a imprisonment can certainly be used as a form of public official consents or acquiesces to the torture, and McDaniel should have left open the torture. Torture Convention, Art. 1 ¶ 1. The possibility of such a claim in the proper case. regulations clarify that “[a]cquiescence of a public official requires that the public official, Burden of Proof
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As noted above, the regulations set forth 204 F. Supp. 2d 115, 118-19 (D. Mass. 2002); that the applicant has the burden of proof and Kourteva, 151 F. Supp. 2d at 1129. that his or her oral testimony may establish the Article 3of the Convention applies not right to relief. 8 C.F.R. § 208.16(c)(2) & only to deportations and exclusions, but also to 208.16(c)(3). Such oral testimony, however, extraditions of persons for trial in a foreign may be rejected as not credible. Efe, 293 F.3d jurisdiction. Thus, the Secretary of State must at 907-08. The State Department report on the evaluate any claim under the Convention before country at issue is also of crucial importance in authorizing extradition. Normally, executive the proceeding; indeed, it is reversible error for decisions as to whether to extradite are subject the BIA not to consider it. Abassi v. INS, 2002 to extremely limited judicial review. However, WL 31103027 (9th Cir. Sep. 23); Efe, 293 F.3d the Ninth Circuit, in a 2-1 decision, indicated in at 907-08; Sevoian, 290 F.3d at 175; Al-Saher, dicta that such claims would be allowed under 268 F.3d at 1147. Evidence of any past torture the Administrative Procedure Act. Cornejo- of the applicant must also be considered. Barreto v. Seifert, 218 F.3d 1004, 1016-17 (9th Sevoian, 290 F.3d at 175. Cir. 2000). Under any of these standards, it is Judicial Review difficult to overturn the BIA’s determination. E.g., Sulaiman, 212 F. Supp. 2d 413, 416; The Torture Convention claim must Julmiste v. Ashcroft, 212 F. Supp. 2d 341, 348 first be brought before the INS (an immigration (D.N.J. 2002); Kourteva, 151 F. Supp. 2d at judge, and then the Board of Immigration 1129. However, it is clear that if the BIA fails Appeals), before a claim may be brought in to consider relevant evidence, Mansour, 230 court. Cruz-Navarro v. INS, 232 F.3d 1024, F.3d at 908; Al-Saher, 268 F.3d at 1147., or 1031 n. 9 (9th Cir. 2000); Khourassany v. INS, relies on a prior asylum determination that 208 F.3d 1096 (9th Cir. 2000); Ortiz v. INS, 179 applied a different standard, Kamalthas v. INS, F.3d 1148, 1152-53 (9th Cir. 1999). Once 251 F.3d 1279, 1282-83 (9th Cir. 2001), reversal brought to court, the claim will generally be is warranted. reviewed for abuse of discretion. Ontunez- Tursios, 303 F.3d at 353; Al Najjar v. Ashcroft, Conclusion 257 F.3d 1262, 1301-02 (11th Cir. 2001); Ali, 237 F.3d at 596; Mansour v. INS, 230 F.3d 902, The regulations implementing the 906 (7th Cir. 2000). However, aggravated Torture Convention are an important tool to felons are cut off from ordinary judicial review protect the victims and potential victims of of their deportations under the 1996 torture. Perhaps because of the trepidation with immigration statute; they are required to bring a which courts enter the area of immigration law, petition for habeas corpus, and they are limited judicial review has so far been relatively narrow to challenges based on misapplication of the in scope, focusing on process errors like the law, Millian-Zamora v. Ashcroft, 2002 WL failure to take the applicable State Department 31408906 at *1 (E.D.N.Y. Oct. 23); Sulaiman v. reports into account, rather than the substantive Attorney General, 212 F. Supp. 2d 413 (E.D.Pa. claims of applicants. Nonetheless, the Torture 2002); McDaniel, 142 F. Supp. 2d at 223., and Convention remedy represents another means of in some courts, a challenge to the factual protecting deportable aliens from grave harm findings under a deferential “substantial that might be visited upon them if they return to evidence” standard. Anotine v. United States, their countries of origin.
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6. LITIGATION UPDATE: A questions of fact and that the district court erred SUMMARY OF RECENT in requiring evidence of participation and DEVELOPMENTS IN U.S. CASES control. Plaintiffs argued that the Nuremberg BROUGHT UNDER THE ALIEN line of cases controlled, and that Unocal’s TORT CLAIMS ACT AND conduct was sufficient to create liability based TORTURE VICTIM PROTECTION on an aiding and abetting theory. ACT In the fall of 2002, the plaintiffs in both cases filed new complaints in Los Angeles By: Jennifer Green and Paul Hoffman* Superior Court raising purely state law claims. Judge Lew had dismissed these claims without CASES AGAINST CORPORATIONS prejudice. In a August 20, 2001, ruling Superior DOING BUSINESS IN THE UNITED Court Judge Victoria Chaney ruled that STATES1 collateral estoppel and federal preemption did not act to bar these claims. Unocal filed new Doe v. Unocal. motions for summary judgment in early 2002. In a June 10, 2002 ruling, Judge Chaney denied In 1996, two lawsuits were filed portions of these motions, clearing the way for a charging the Unocal Corporation and Union Oil trial. Accepting plaintiffs’ “vicarious liability” Company of California (“Unocal”) with theory, Judge Chaney held that there were knowingly using forced labor to construct a triable issues of fact as to whether there was a natural gas pipeline across the Tenaserin region joint venture that included Unocal to construct of Burma. Both cases survived Unocal’s the pipeline. The court further held that there motions to dismiss. Doe v. Unocal, 963 were triable issues on whether Unocal and its F.Supp.880 (C.D. Cal. 1987); NCGUB v. co-venturers hired, contracted with, or otherwise Unocal, Inc., 176 F.R.D. 529 (C.D. Cal. 1987). retained the SLORC regime as an agent to However, in September 2000, both suits perform security and other “services” for the were dismissed by Judge Ronald S.W. Lew. project. The upcoming state court trial will John Doe I v. Unocal Corp., 110 F. Supp.2d primarily focus on these two issues. Unocal has 1294, 1310 (C.D. Cal. 2000). filed a motion to stay the state court proceedings Judge Lew held that the ATCA requires which will be heard on January 27, 2003. If direct participation by Unocal in the wrongful denied, a trial date will be set. Unocal has also acts. Judge Lew further held that in order for filed a petition with the California Court of Unocal to have been the proximate cause of the Appeal asking that Court to block a trial. injuries, it would have to have had control over On September 19, 2002, the Ninth the military regime. Plaintiffs appealed the Circuit issued an opinion reversing Judge Lew’s ruling arguing that there was sufficient evidence grant of summary judgment to Unocal. Citing of Unocal’s participation with and control over the line of cases beginning with the Nuremberg the military security forces to raise material Tribunals, the appeals court held that plaintiffs could proceed under the ATCA with an “aiding and abetting” theory. Under this standard, * Jennifer Green is a staff attorney at the plaintiffs need only show that Unocal provided Center for Constitutional Rights. Paul Hoffman is knowing assistance to the direct perpetrators of the editor of the ACLU International Civil Liberties the human rights violations. The court cited Report and is a partner in Schonbrun DeSimone plaintiffs’ evidence that Unocal and its co- Seplow Harris & Hoffm an, LLP (ww w.sdshh.com ). ventueres provided financial and material He is also a CCR cooperating attorney.
30 INTERNATIONAL CIVIL LIBERTIES REPORT support to the security forces in holding that Shell’s motion to dismiss was denied. The there was sufficent evidence to submit the issue ruling contained an important analysis of forced to a jury. On October 9, 2003, Unocal filed a exile as a form of cruel, inhuman or degrading petition for rehearing and suggestion for treatment. 2002 U.S. Dist. LEXIS 3293 rehearing en banc which was still pending at the (S.D.N.Y. Feb. 28, 2002). end of 2002. In another interesting development, Wiwa v. Anderson, 01 Civ. 1909 criminal proceedings have been initiated in (S.D.N.Y. filed March 2001) France and Belgium against Total officials as a In March 2001, the former head of the result of their alleged role in the human rights Nigerian subsidiary, Shell Transport & Trading, abuses on the pipeline project. Brian Anderson, was sued while in New York. He filed a motion to dismiss, which also Wiwa v. Royal Dutch Petroleum, 96 Civ. 8386 included a claim that the case should be (S.D.N.Y., filed November 8, 1996), 226 F.3d transferred to England under the forum non 88 (2d Cir. 2000) conveniens doctrine. The motion was denied in This case charges Royal Dutch its entirety, and included the rejection of Petroleum Company and Shell Transport and defendant’s attempt to use the Nigerian truth Trading Company (Royal Dutch/Shell) with commission as a basis for a forum non complicity in the November 10, 1995 hanging conveniens dismissal to Nigeria. 2002 U.S. Dist. of Ken Saro-Wiwa and John Kpuinen, two of LEXIS 3293 (S.D.N.Y. Feb. 28, 2002). For nine leaders of MOSOP (Movement for the both cases, plaintiffs filed amended complaints Survival of the Ogoni People), the torture and pursuant to the Court’s order and the cases are detention of Owens Wiwa, and the wounding of now in discovery. a woman who was peacefully protesting the The plaintiffs in both cases are bulldozing of her crops in preparation for a represented by Judith Chomsky, Jennie Green, Shell pipeline, who was shot by Nigerian troops Paul Hoffman and Beth Stephens of the Center called in by Shell. The case was brought under for Constitutional Rights, Anthony DiCaprio of ATCA and the Racketeer Influenced and Ratner & DiCaprio, Julie Shapiro, Tom Golden Corrupt Organizations Act (RICO). The and Nisha Menon of Willkie Farr & Gallagher, District Court found that there was personal and Jodie Kelley of Jenner & Block. jurisdiction over defendants, but granted defendants’ motion to dismiss the complaint on Kiobel, et al v. Royal Dutch Petroleum, et al., grounds of forum non conveniens (to England, S.D.N.Y. 02 Civ. 7618 (KMW). On September home of Shell Transport & Trading). Plaintiffs 20, 2002, fourteen individual plaintiffs filed a appealed the dismissal; defendants cross- class action charging Shell with complicity for appealed the ruling on personal jurisdiction. On human rights violations committed between September 15, 2000, the Second Circuit issued 1990-1999 in Nigeria (including purchasing its decision, which reversed the forum non ammunition and providing logistical support of conveniens dismissal and denied defendant’s repression of anti-Shell protestors). The cross appeal on personal jurisdiction. The plaintiffs are represented by Berger & Second Circuit then remanded the case for Montague of Philadelphia. consideration of defendant’s motion to dismiss for lack of subject matter jurisdiction. Bowoto v. Chevron, Case No. C99-2506 CAL Defendants petitioned for certiorari, but the (N.D. Cal. 1999). This case charges the San petition was rejected. The remanded portion of Francisco-based Chevron Corporation for its
31 INTERNATIONAL CIVIL LIBERTIES REPORT involvement in a series of three machine gun Dumisa Buhle Ntsebeza (South attacks upon unarmed protesters and people in Africa/Connecticut); John Ngcebetsha and their homes in Nigeria between May, 1998 and Gugulethu Oscar Madlanga (Randburg, South January, 1999. The Plaintiffs were either Africa); Dambusa & Mnqandi Incorporated summarily executed by the gunfire, seriously (Eastern Cape, South Africa); Kedibone injured by gunfire during the attacks, burned in Molema Attorneys (Pretoria, South Africa), and a fire set during the attack or tortured by the Padayachi Lloyd (Cape Town, South Africa). police thereafter with the complicity of and/or at Connecticut attorneys Paul Ngoni and associates the request or suggestion of Chevron. In the have filed a related complaint, Digwamaje v. spring of 2000, Plaintiffs defeated defendant’s IBM Corp., et al 02-CV-6218 (S.D.N.Y. 2002) motions to dismiss the entire complaint to An MDL panel in Savannah, Georgia Nigeria on forum non conveniens and act of will hear the motion to consolidate later this state grounds, and argued that the protestors’ year. claims did not state claims of international law, On November 12, 2002, the and the case is now in discovery. Summary Washington, D.C. law firm of Cohen, Milstein judgment motions are calendared for the spring and Hausfeld, with the South Afrian firm of of 2003. Abrahams, Kiewitz, the Forida firm of Kerrigan, Counsel on the case are the law firms of Estes, Rankin & McLeod, LLP, and the Los Hadsell & Stormer, Traber & Voorhees, Cindy Angeles firm of Fleishman & Fisher filed a Cohn, Judith Chomsky, Michael Sorgen, second suit on behalf of the Khulumani Support EarthRights International, the Working Peoples’ Group and individual plaintiffs in the Eastern Law Center, the Center for Constitutional District of New York. Khulumani v. Barclays Rights, Bahan & Herold, and Paul Hoffman. National Bank Ltd. (E.D.N.Y. 2002). The suit targets Swiss, German, U.S., Dutch, French and Apartheid actions: A series of cases are British banks and companies who had financial currently pending in New York and other courts ties with the regime. across the country against a range of corporate defendants for their activities supporting Flores v. Southern Peru Copper Corporation, apartheid in South Africa. A series of actions No. 00 CIV. 9812 (CSH) (S.D.N.Y., filed Dec. have charged defendants including banks, 27, 2000). Residents of Ilo, Peru charged insurance companies, computer companies. defendant with despoilment of the air, land and Claims are for forced labor, discrimination, rape water through copper mining and refining and other torture, and other human rights operations over the last forty years. Plaintiffs violations. claims include violation of the right to life, In June 2002, a class action on behalf of violation of the right to health, violation of duty more than 5,000 apartheid victims was filed to assure sustainable development. Defendant’s against dozens of multinational corporations. motion to dismiss was granted on July 16, 2002. Ntsebeza v. Citigroup, 02 Civ. 4712 (RCC). The 2002 U.S. Dist. LEXIS 13013. companies are accused of rescuing the apartheid Judge Charles Haight of the Southern regime in the mid-1980s when it faced financial District of New York held that plaintiffs had not default because ofinternational sanctions. submitted sources demonstrating an Damages sought are $50 billion. Counsel international consensus that high levels of includes Fagan & Associates (New Jersey); environmental pollution within a nation’s Nagel Rice Dreifuss & Mazie (New Jersey); borders did not violate the “right to life”, “right Thomas Wareham & Richards (New York); to health” or “right to sustainable development.”
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Judge Haight further explained that if he had not Company”), as well as its former Chief held that the ATCA claims were legally Executive Officer, Warren Anderson. unfounded, he would have dismissed the lawsuit Plaintiffs claim that defendants acted on forum non conveniens grounds. with unlawful, reckless and depraved Attorneys for plaintiffs are Wallace indifference to human life in the design, Showman of New York, and Schirrmeister operation and maintenance of the Union Carbide Ajamie, LLP of Houston, TX. of India Ltd. (“UCIL”) facility at Bhopal which resulted in the devastating leak of massive Sarei, et al v. Rio Tinto, plc, CV 00-11695- amounts of methyl isocyanate (“MIC”) into the MMM (MANx) (C.D. Cal. Filed 2000). Class city killing thousands and injuring many action claiming displacement of villages and thousands of its residents. Plaintiffs’ claims environmental damage in construction of copper also include disregard of any emergency- mine in Bougainville, Papua New Guinea. preparedness or minimal safety precautions, and Claims include crimes against humanity widespread and severe contamination and (including a medical blockade), violation of the environmental pollution of soil and drinking right to life and health and security of person, water. Finally, plaintiffs charge civil contempt, racial discrimination, violations of international abuse of judicial mandate and evasion of lawful environmental rights and war crimes (including process, as well as actual and constructive fraud blockade). because of defendants’ failure to comply with Defendant filed a motion to dismiss, the lawful orders of the courts of both the and on in October 2001, the U.S. attorney United States and India. Plaintiffs also alleged general filed a “statement of interest” that violations of international law. adjudication of this lawsuit could negatively Defendants filed a motion to dismiss the impact the peace accord that has been amended complaint, deny class certification, negotiated by Papua New Guinea. On July 9, and in the alternative, moved for summary 2002, Defendant’s motion to dismiss was judgment. The District Court granted their granted on the grounds of the act of state motion (2000 U.S. Dist. LEXIS 12326) and doctrine and international comity. 221 plaintiffs appealed. On November 15, 2001, the F.Supp.2d 1116 (C.D. Cal. 2002). Plaintiffs Second Circuit ruled that the lower court had have filed their opening brief. A decision is not properly dismissed the plaintiffs’ claims under expected until late 2003. ATCA (because the 1989 settlement precluded Attorneys for plaintiffs include Steve any other claims from the 1984 disaster; it never Berman of Hagens Berman LLP in Seattle, ruled on whether Union Carbide’s actions Kevin Roddy of Hagens Berman LLP in Los violated international norms). However, the Angeles, and Paul Luvera and Joel D. Circuit ruled that the lower court erred in Cunningham of Luvera, Barnett, Brindley, dimissing the plaintiffs’ common-law Beninger & Cunningham. environmental claims and remanded on those claims. Bano, et al. v. Union Carbide Corporation The case was brought by Goodkind and Warren Anderson: 99 Civ. 11329 (JFK) Labaton Rudoff & Sucharow Llp, Prof. Upendra (S.D.N.Y. 1999). Class action lawsuit filed on Baxi, Law Offices of Curtis Trinko, Llp, and behalf of survivors and next-of-kin of victims of EarthRights International. the Bhopal Gas Disaster of December 2-3, 1984, (the “Bhopal Disaster”) against Union Carbide Abdullahi v. Pfizer (S.D.N.Y., filed Aug. 29, Corporation (hereafter "Union Carbide" or “the 2001): Thirty Nigerian families sued Pfizer for
33 INTERNATIONAL CIVIL LIBERTIES REPORT conducting an unethical clinical trial of an District Court for the Northern Mariana Islands antibiotic (Trovan) on their children in 1996. ruled against dismissal on October 29, 2001 Defendants moved to dismiss the case to (decision is posted on Nigeria on forum non conveniens grounds and www.sweatshopwatch.org) (upholding many of that motion was granted on September 16, 2002. the RICO claims, and the false imprisonment 2002 U.S. Dist. LEXIS 17436. The plaintiffs claim, and allowing others to be amended are represented by Milberg Weiss Bershad without prejudice; dismissing the Thirteenth Hynes & Lerach in New York. Amendment claims and the international law claims with prejudice. Saipan cases: In late September 2002, a final settlement was concluded with seven major U.S. Union of Needletrades Industrial and retailers, which for the most part concluded Textile Employees v. The Gap, 300474, three cases filed on January 13-14, 1999 in U.S. plaintiffs Global Exchange, Sweatshop Watch, federal court in Los Angeles and Saipan, and in the Asian Law Caucus and UNITE charged California state court, challenging sweatshop unfair business practices under California conditions in the garment industry in Saipan, Business and Professions Codes (alleged Commonwealth of the Northern Mariana Islands clothing retailers including The Gap Inc., (CNMI). Levi Strauss did not agree to the Tommy Hilfiger and J. Crew deceived the settlement and continues as a defendant, public about labor abuses at their Saipan although they stopped purchasing garments factories and that the manufacturers clothes are from Saipan after the lawsuit was filed. mislabeled. Plaintiffs are tens of thousands of On November 12, 1999, the San foreign guest workers who work for unfair Francisco Superior Court rejected defendants’ wages in unlawful sweatshop conditions, and motions to dismiss and to divide the case into nongovernmental organizations challenging the separate proceedings against each retailer company’s violations of California’s Business defendant. The case then went into discovery. & Professions Code. The defendants were garment contractors and retailers and Doe v. Advanced Textile Corp.: A manufacturers of the CNMI-manufactured third case was filed by approximately 25,000 garments sold in the U.S.A. Saipan garment workers in federal court in Saipan against 32 Saipan-based garment Doe v. Gap: Civ. 99-329 (filed C.D. contractors under the Fair Labor Standards Act Cal. January 13, 1999): Class action lawsuit of and CNMI laws. Plaintiffs initially attempted approximately 50,000 young, non-citizen unsuccessfully to recuse the judge, who had a garment workers challenges garment production longstanding personal relationship with the system on U.S. soil based upon peonage and former President of the Saipan Garment involuntary servitude, and violations of the Manufacturers Association and principal rights of women. The complaint alleged shareholder of a leading garment contractor violations of the Alien Tort Claims Act, the defendant. The judge then ordered Doe Racketeer Influenced and Corrupt Organizations plaintiffs to disclose their identities or drop the Act ("RICO") and torts actionable under the lawsuit. This ruling was appealed to the Ninth federal indentured servitude and anti-peonage Circuit, which issued an important decision on statutes and state common and international law. the use of pseudonyms. After 19 of the defendants settled, and The judge also dismissed all the CNMI numerous legal battles over venue, the U.S. legal claims, ruling that they were not
34 INTERNATIONAL CIVIL LIBERTIES REPORT sufficiently related to the federal overtime case 2002)) The Presbyterian Church of Sudan and to retain them in the same action. He also one of its pastors, with the assistance of the severed the case into 22 proceedings against American Anti-Slavery Group, filed a class each Saipan contractor separately. In response action on behalf of non-Muslims in the Sudan, to this ruling severing the case, plaintiffs filed a charging that Talisman has supported the new amended complaint, adding allegations to “ethnic cleansing“ campaign of the Islamic explain why the cases should be tried in a single government in Sudan. The February 2002 action. Several of the Saipan contractors have amended complaint added the Sudanese challenged these new allegations, and hearings government as a defendant. were held in September 2001. In early October, Talisman filed a motion to dismiss the 2001, Judge Munson ordered that some 20,000 lawsuit, and requested that the court solicit a current and former garment workers in several U.S. State Department opinion about the countries be provided notice of their right to consequences of the suit for Sudan’s peace submit claims for back wages. process. In September 2002, the Judge refused In May 2002, the Court ruled that the Talisman’s request to consult the State action could proceed as a class and allowed the Department. A ruling on defendants’ motion to earlier settlement to go forward over the dismiss is still pending remaining merchants’ objections. The class Plaintiffs’ lawyers include Carey certification was upheld by the Ninth Circuit. D’Avino and Stephen Whinston of Berger & These rulings have been identified as key to Montague of Philadelphia. moving settlement negotiations forward. Settlement negotiations: Final Bigio v. Coca-Cola, 239 F.3d 440 (2d settlements with the first 19 defendants who Cir. 2000). Plaintiffs alleged that Coca-Cola settled the cases include a comprehensive either purchased or leased their property with Saipan Code of Conduct to be monitored by full knowledge of the unlawful manner in which Verite, a non-profit international human rights it had been seized from the plaintiffs. monitoring organization, and a ban on Defendants’ motion to dismiss was granted by recruitment fees for workers. Settlement the Southern District of New York, which negotiations with the other seven defendants concluded that the plaintiffs had not satisfied the concluded in September 2002 also include prerequisites for jurisdiction under the ATCA, important monitoring agreements as well as a and that the Act of State Doctrine barred the damage award which brings the total setllment court’s jurisdiction, despite the parties’ diversity fund to over $20 million. of citizenship. The Second Circuit upheld the The Plaintiffs are represented by the law dismissal of the ATCA claims, but stated that firms of Milberg, Weiss, Bershad, Hynes & the Act of State doctrine does not bar the court Lerach; Altshuler, Berzon, Nussbaum, Berzon from exercising diversity jurisdiction. The court & Rubin, Galloway & Associates, and Bushnell, remanded for the purpose of determining Caplan & Fielding, LLP. For more information whether principles of international comity and regular updates, see dictating against exercising jurisdiction, and if www.globalexchange.org, they do not, for the court to decide the case on www.sweatshopwatch.org. its merits. Plaintiffs’ counsel include Nathan Presbyterian Church v. Talisman Energy Lewin of Miller, Cassidy, Larroca & Lewin, Co., Inc.. 01 CV 9882 (AGS) (S.D.N.Y., filed LLP of Washington, D.C. Nov. 8, 2001 (amended complaint filed Feb. 25,
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Jota v. Texaco, Inc.. Two consolidated claims, institution of these actions and a date one year Aguinda v. Texaco, S.D.N.Y. Dkt. No. 93 Civ. subseauent to the final judgment of dismissal. 7527 (on behalf of residents of the Oriente Counsel for plaintiffs-appellants include region of Ecuador) and Ashanga v. Texaco Inc., the Law Office of Cristobal Bonifaz, Kohn, S.D. Dkt. No. 94 Civ. 9266 (residents of Peru), Swift & Graf, and Sullivan & Damen. allege that Texaco polluted the rain forests and Arias v. DynCorp, No. 1:01CV01908 (D.D.C., rivers in Ecuador and Peru during oil filed Sept. 11, 2001). Class action of 10,000 exploitation activities in Ecuador between 1964 Ecuadorian Indians charging that U.S. company and 1992: dumping toxic by-products in local was contracted to carry out fumigation of illicit rivers, leaked petroleum into the environment, crops in neighboring Colombia. Plaintiffs resulting in physical injuries, including pre- charge that reckless spraying of homes and cancerous growths. farms caused illness and death and destroyed On October 5, 1998, the Second Circuit crops. ATCA violations charged included reversed a dismissal on the ground of forum non crimes against humanity. Defendants’ motion to conveniens. 157 F.3d 153 (2d Cir. 1998). The dismis was briefed in the spring of March 2002. case was remanded and oral argument was A decision is pending. heard in February 1999. In January 2000, the Plaintiffs’ counsel include the Court ordered additional briefing on whether the International Labor Rights Fund and Cristobal case could be heard in Ecuador, given a January Bonifaz. 21, 2000 military coup and the 1998 U.S. State Department Country Report on Ecuador. 2000 U.S. OFFICIALS U.S. Dist. LEXIS 745 (Jan. 31, 2000). On May 30, 2001, the District Court dismissed the case Turkmen v. Ashcroft, E.D.N.Y. (02 CV 2307 on forum non conveniens grounds to Ecuador (Gleeson, J.)). Class action brought by seven (noting that the Peruvian plaintiffs could bring noncitizens who were arrested and detained on their claims in Peru if they so chose). 142 minor immigration violations by the F.Supp.2d 534 (S.D.N.Y. 2001). In its forum Immigration and Naturalization Service (INS) non conveniens analysis, the district court following the September 11, 2001 terrorist concluded that plaintiffs would be unlikely to attacks, and then kept in detention long after demonstrate that Texaco’s acts are actionable they were ready to leave the United States on under ATCA. Plaintiffs appealed. final orders of removal or voluntary departure On August 16, 2002, the Second Circuit until they were “cleared” of criminal suspicion affirmed the lower court’s decision to dismiss by the Federal Bureau of Investigation (FBI). the case, but reasoned differently. Rather that The Plaintiffs are, or were perceived by finding that plaintiffs would be unlikely to state Defendants as, Muslim or Arab. U.S. a claim for a violation of international law, the government official defendants were charged Court held that it need not reach the issue with responsibility for instituting and executing because other public and private interest factors the detention policies to which they were would require dismissal even if ATCA unlawfully subjected. expresses a strong U.S. policy interest. The Plaintiffs’ claims included a range of Second Circuit ruled that the dismissal must be civil rights violations, and international law conditioned on Texaco’s agreement to waive violations. ATCA violations charged were cruel, defenses based on statutes of limitation for inhuman or degrading treatment, arbitrary limiations periods expiring between the detention, and violation of the customary international law right of contact with the
36 INTERNATIONAL CIVIL LIBERTIES REPORT detainees’ consulates. Plaintiffs also claimed a Counsel for the Rasul plaintiffs are led direct treaty violation under the Vienna by the Center for Constitutional Rights; the Convention on Consular Relations. Defendants Odah plaintiffs are represented by Shearman & filed a motion to dismiss, claiming that the U.S. Sterling. government must be substituted for the individual defendants for plaintiffs’ ATCA Schneider v. Kissinger Case Number claims and that plaintiffs had no right to sue 1:01CV0192 (HHK) (D.D.C., filed Sept. 10, under the Vienna Convention on Consular 2001). Case on behalf of family members and Relations. Oral argument took place on estate of General Rene Schneider, former head December 19, 2002. Awaiting decision. of the Chilean military in the government of Counsel for the plaintiffs are the Center Salvador Allende. The complaint includes for Constitutional Rights and Covington & claims for summary execution, torture, and Burling. arbitrary detention, and charges former National Security Advisor Henry Kissinger and former Rasul v. Bush, Civil Action No. 02-299 (CKK) CIA Director Richard Helms and the United (D.D.C. filed Feb. 19, 2002); Odah v. United States of America for “designing, ordering, States, Civil Action No. 02-828 (D.D.C. filed implementing, aiding and abetting, and/or May 1, 2002). Plaintiffs in these two related directing a program of activities aimed at, and cases are post 9/11 detainees held at resulting in the kidnapping and killing of Rene Guantanamo Bay, Cuba. The Rasul action was Schneider. brought on behalf of 2 British citizens and 1 Attorneys for the U.S., Kissinger and Australian and petitions, inter alia, that the Helms at Department of Justice have filed a detainees be released, and that they be able to motion to dismiss the case. The motion argues meet with their counsel. The Odah case was that plaintiffs claims are barred by the political filed on behalf of 12 Kuwaitis, and requests a question doctrine and sovereign immunity, preliminary and permanent injunction allowing common law immunity, qualified and absolute the detainees contact with their family members immunity, and that plaintiffs state no cognizable and counsel, and to be informed of the charges claim under the TVPA. A decision is pending. against them. Both cases alleged ATCA Regular updates are available on www.icai- violations. online.org. Michael Tigar is attorney for The U.S. government filed motions to plaintiffs. dismiss, and oral argument was held on June 26, 2002. On July 30, 2002, the District Court Alvarez v. United States – As reported in the dismissed the cases. On the ATCA claims, the 2001 Report, the Ninth Circuit affirmed court held that no ATCA relief was available to plaintiff’s judgment against one of his the Rasul and the Odah plaintiffs because kidnappers under the ATCA and reversed the habeas corpus is the only potential remedy for denial of his claims against the United States wrongful detention. The court held in the under the Federal Tort Claims Act. This alternative that in order to be sued under ATCA, decision was reported at 266 F.3d 1045 (9th Cir. the government must waive its immunity and 2001). In March 2002 the Circuit agreed to hear there had been no such waiver. 215 F.Supp.2d the case en banc and vacated the panel opinion. 55. The en banc hearing took place on June 18, Plaintiffs appealed. The appeal has been 2002, in San Francisco. No decision had been fully briefed and Oral argument was held on issued by the end of 2002. December 2, 2002.
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Papa v. United States, No. 00-55051 (C.D. CASES AGAINST FOREIGN OFFICIALS, Cal.) 281 F.3d. 1004 (9th Cir. 2002) ORGANIZATIONS AND/OR On February 25, 2002, the Ninth Circuit U.S./FOREIGN CORPORATIONS reversed the dismissal of the Bivens claims, FOIA claims and ATCA claims, finding that the Ashton et al v. Al Qaeda Islamic Army et al, claims were timely (applying TVPA 10-year No. 02 CV-6977; Beyer et al v. Al Qaeda statute of limitations) and that plaintiffs had Islamic Army et al, No. 02 CV-6978 (S.D.N.Y. claims under customary international law. filed Sept. 4, 2002); 1,400 victims and survivors Plaintiffs claim is that INS officials at the El of the September 11 attacks on the World Trade Centro Detention Center were deliberately Center plaintiffs charge Al Qaeda, Osama bin indifferent to the rights of a Brazilian detainee Laden, 37 Al Qaeda associates, the estates of the who was beaten to death in the exercise yard by 19 terrorist hijackers who died in the Sept 11 another detainee who was a gang member. The attacks, Zacharias Moussaoui, the Taliban and case was transferred to San Diego on remand its leader Mohammad Omar, Iraq, Saddam and is in the discovery stage. Hussein and 2 sons, the Iraqi intelligence agency, 13 individual Iraqi officials and 64 co- U.S. GOVERNMENT OFFICIALS AND conspirators, including banks, charities, CORPORATIONS corporations and individuals that are alleged to have provided funds and other support to further Jama v. U.S. INS: On October 1, 1998, the alleged acts of terror against the United nineteen political asylum seekers who were States for the last 10 years. The case was formerly detained in an Immigration and brought by the Anti-Terrorism Act, the Torture Naturalization Service (INS) facility in Victim Protection Act and the Anti-Terrorism Elizabeth, New Jersey won an important ruling and Effective Death Penalty Act. against INS officials, a private contractor and its The plaintiffs are represented by employees. 22 F. Supp. 2d 353 (D.N.J. 1998). Kreindler & Kreindler of New York. The suit is now in discovery. Plaintiffs have successfully obtained documents on 4 other Burnett, St. v. Al Baraka Investment and facilities by the contractor, the Esmor Development, et al. No. 02-CV-1616 (JR) Corporation. The plaintiffs have obtained (D.D.C. Aug 14, 2002). More than 3000 critical protective orders for the immigration survivors and relatives of those killed in the records for their clients. Two other cases 9/11 World Trade Center attacks brought suit subsequently filed against the INS have been against defendants including seven international consolidated for discovery purposes. Summary banks, eight Islamic foundations and their judgment motions from the defendants, subsidiaries and several individuals alleged to including an argument that U.S. government be terrorist financiers, including Osama bin officials are entitled to qualified immunity, are Laden and members of the Saudi royal family. expected in January 2003. This suit also seeks $1 trillion in compensator, The plaintiffs are represented by the treble and punitive damages. Constitutional Rights Clinic at Rutgers Law The complaint has been amended to add School and the law firm of O'Melveney & dozens of additional defendants, based on new Myers. evidence gathered by a team of private investigators. It was brought under the Foreign Sovereign Immunities Act, Torture Victim Protection Act, the Alien Tort Claims Act,
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RICO, and tort claims, including wrongful death the District of Columbia dismissed the case, and conspiracy. stating that the only factual allegation Counsel for plaintiffs include Allan connecting Adidas to the forced labor camps is Gerson and Ronald Motley (South Carolina). that while incarcerated some of the plaintiffs stitched soccer balls for Adidas. The court Bao Ge et al v. Li Peng et al, Civ. No. 98-1986 found this to be an insufficient allegation. It (D.D.C. 1998) Class action for damages and further ruled that the Bank of China was an equitable relief including the release of agent of a foreign state and thus immune under thousands of prisoners incarcerated in Chinese the Foreign Sovereign Immunities Act (no prisons. An amended complaint was filed exceptions applied.) December 24, 1998 charging human rights Plaintiffs’ counsel is John David abuses in the Chinese prison system, including Hemwenway, Hemenway & Associates, that, while incarcerated, prisoners were forced Washington, D.C. to engage in labor under inhumane conditions. Plaintiffs are 5 current or former inmates of the Shanghai Reeducation Labor Camp in the People’s Republic of China. Defendants are Chinese Premier Li Peng, the Chinese Communist Party, the Politburo, the Bank of China, Adidas America and the President of Adidas, Steven Wynne. On February 9, 1999, defendants Adidas America and the Bank of China filed separate motions to dismiss. The motions argued, inter alia, that the Court lacks subject matter jurisdiction and should therefore dismiss the action under Fed. R. Civ. P. 12(b)(1). Plaintiffs opposed and also moved for jurisdictional discovery. The Bank of China filed for a protective order. In order to establish whether the activities of the Bank of China were met the test for “commercial exception” to foreign sovereign immunity (28 U.S.C. 1605 (a)(2)), the Court allowed narrow jurisdictional discovery, to be supervised by a Magistrate Judge. The Court also allowed limited discovery about Adidas’ relationship with the Bank of China and any imports to the United States from China that were allegedly the result of prison labor. 1999 U.S. Dist LEXIS 10834 (filed D.C.D.C. July 13, 1999). After this jurisdictional discovery, defendants filed renewed motions to dismiss. On August 28, 2000, the U.S. District Court for
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CASES AGAINST FOREIGN government challenged whether service through GOVERNMENT OFFICIALS Li Peng’s security detail was proper. On August 8, 2002, the court rejected El Salvador cases (Ford v. Garcia; Romagoza the U.S. government challenge. 2002 U.S. Dist. v. Garcia) (S.D. Fla). These two cases were LEXIS 14648. Plaintiffs’ counsel are the Center brought against General Guillermo Garcia, El for Constitutional Rights. Salvador’s Minister of Defense from 1979-83, and General Carlos Eugenio Vides Casanova, Falun Gong cases: Beginning in July 2001, Director General of the National Guard during Falungong practitioners have brought five 1979-83, and Garcia’s successor as Defense ATCA suits against top Chinese officials during Minister. visits to the U.S. for torture, murder and other The Ford case was brought on behalf of human rights violations against Falun Gong six U.S. nuns who were tortured and killed in El members in China. Salvador, and their family members. That case In July 2001, activists brought a $50 went to trial, and a jury found that the million suit in New York against Zhao Zhifel, defendants were not liable. The decision was Public Security Chief of China’s Hubei upheld on appeal, 289 F.3d 1283 (11th Cir. province, and a default judgment has been 2002), and plaintiffs filed a petition for a writ issued. for certiorari. Plaintiffs’ counsel include the In August 2001, Falun Gong served Lawyers Committee for Human Rights. Zhou Yongkang, Communist Party General The Romagoza case was brought by Secretary of Sicuan province while he was on a three Salvadorans now living in the U.S. who visit to Chicago. survived torture at the hands of the Salvadoran On February 7, 2002, Beijing Mayor National Guard and Police between 1979 and Liu Qi (and presidnet of the Biejing Organizing 1983. Trial went forward the summer of 2002, Commitee for the 2008 Olympic Games) was and on July 23. 2002, the jury awarded $54.6 served with a complaint while on a visit to San million to the plaintiffs for torture. An appeal is Francisco, for the brutal crackdown that has pending. See Beth Van Schaack article in this occurred in preparation for the Olympics. The issue. plaintiffs are 2 Chinese asylees in the U.S. and 4 citizens of the U.S. Israel, France and Sweden. Zhou v. Li Peng, Civ. No. 00-6446 (S.D.N.Y. Liu Qi was charged iwth torture, cruel, inhuman filed Aug. 28, 2000). In April 1989, peaceful and degrading treatment, crimes against demonstrators occupied Tiannanmen Square in humanity and violation of the right to freedom Beijing demanding democratic reforms. After a of religion and belief. Liu Qi made no response six-week standoff, the protestors, mainly and CJA filed papers for a default judgment. students, were forcibly removed in a wholesale At a hearing on May 1, 2002, the military attack. Thousands were killed and magistrate requested additional briefing on wounded. In August 2000, on behalf of former several issues, including the act of state student lead Wang Dan and four other survivors doctrine, and he informed plaintiffs that he was of the massacre, CCR filed suit against Li Peng, requesting an opinion from the U.S. State the Chinese Premier at the time the crackdown Department. The State Department issued a at Tiannanmen Square was ordered. He was letter that the adjudication of the case would served at a New York hotel. Li Peng has not impair foreign policy. The court is currently responded to the complaint, but the U.S. considering the impact of this letter.
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In May 2002, Ding Guangen, a Counsel for plaintiffs are the Center for politburo member and head of publicity for the Constitutional Rights, Judith Brown Chomsky, communist party’s central committee, was the Washington law firm of Patton, Boggs, the served in Hawaii. The Plaintiff is a French Center for Justice and Accountability, James citizen, Helene Petite, who was arrested in Klimaski, and Paul Hoffman. Tianamen Square during a peaceful protest on November 21, and three unnamed Chinese Reyes et al v. Juan Evangelista Lopez plaintiffs. Grijalba (S.D.Fla filed July 15, 2002). The The plaintiffs in these cases are Center for Justice and Accountability filed a suit represented by Terri Marsh. The Center for against former Honduran military intelligenc Justice and Accountability is co-counsel in the chief on behalf of six former Honduran citizens. case against Liu Qi. Updates are available at The plaintiffs charge torture and the www.cja.org. disappearance of relatives, which occurred as part of a series of abductions, disappearances Doe v. Lumintang, (D.D.C. CV0064) (Filed and extrajudicial killings against political March 28, 2000; Judgment Sept. 10, 2001): Six opponents. Plaintiffs charge that Lopez East Timorese activists sued Indonesian former Grijalba, whose positions included the chief of Vice Chief of Staff Johny Lumintang, charging intelligence for the Armed Forces General and him with the design and implementation of a the Joint Chiefs, had the legal authority and program of systematic human rights violations practical ability to control subordinates who in East Timor which resulted in crimes against participated in the human rights abuses. humanity and other human rights violations Updates are available on CJA’s website: such as their torture and the summary execution www.cja.org. of their relatives. The plaintiffs charged that General Lumintang’s participation included Tachiona, et al v. Mugabe, et al, 00 Civ. 6666 sending a telegram to military officials in East (VM), 2001 U.S. Dist. LEXIS 18421. Class Timor with orders to take repressive action action on behalf of Zimbabweans claiming that against independence supporters after the President Robert Mugabe and Zimbabwe’s September 1999 vote for independence, and that Foreign Minister Stan Mudenge and their he signed a covert operations manual outlining political party the Zimbabwe African National terror tactics to deal with political opposition. Union-Patriotic Front (ZANU-PF) planned and Defendant filed no response to the executed a campaign designed to intimidate and complaint. On June 27, 2000, the District Court suppress peaceful political opposition. filed an entry of default, and in March 2001, the Plaintiffs claims include summary execution, plaintiffs and expert witnesses testified about torture, terrorism, rape, beatings and destruction the damages caused by Lumintang. On of property. On October 30, 2001, the Southern September 10, 2001, the court entered judgment District of New York ruled that Mugabe and against Lumintang for $66 million -- awarding Mudenge had head of state and diplomatic each plaintiff $10 million in punitive damages immunity, but that the immunity was not for all and around $1 million for compensatory purposes, and ZANU-PF could be tried through damages for each of their claims. On March 25, Mugabe. The case contains an extensive 2002, Lumintang entered an appearance for the analysis of immunities. An order of default was sole purpose of setting aside the judgment. This also entered on October 30, 2001. has been briefed and is awaiting argument. The U.S. government (not a party) has filed a motion for reconsideration of the portion
41 INTERNATIONAL CIVIL LIBERTIES REPORT of the decision which held that ZANU-PF may Yugoslav United Left Party and wife and be sued through President Mugabe. The U.S. adviser to Milosevic, security officials, and argued that Mugabe and Mudenge were immune paramilitary officials. from service under head of state and diplomatic Plaintiffs claim that the conspiracy of immunity and that service upon ZANU-PF the Defendants’ had two primary goals: first, through Mugabe was invalid. This motion was Milosevic and the other defendants committed rejected. In July 2002, a U.S. magistrate judge these violations to eliminate the ethnic Albanian recommended a $73 million judgment against population from Kosova area of Yugoslavia, ZANU-PDF for the murder and torture of leaving Kosova populated and controlled by political opponents under the TVPA. It reserved ethnic Serbs; second, defendants intended to judgment on the ATCA, and advised plaintiffs conduct a “public relations campaign of that if they chose to proceed under the ATCA, disinformation” in the United States, to cover up additional briefing was required on the choice- and conceal the defendants’ activities in order to of-law analysis on damages and the applicable allow them to continue to commit their unlawful law of Zimbabwe. 216 F.Supp.2d 262 (S.D.N.Y. acts without interference. 2002). Plaintiffs chose to proceed under the Defendants have filed no response to TVPA only. the complaint. Plaintiffs have filed a Motion for Plaintiffs are represented by Theodore Default Judgment. Plaintiffs asked for Cooperstein of Washington, D.C. and Paul compensatory and punitive damages totalling Sweeney of Hogan & Hartson in New York. $14 million, and proposed that all punitive damages would be payable to Catholic Relief Topo v. Dhir, 01 Civ. 10881 (JSM) (RLE) Services or another such entity approved by the (S.D.N.Y.) Plaintiff Pushpa Topo, alleged that Court to support charitable services in Kosovo. the defendants recruited her for a domestic A hearing was held on this motion in mid-2001. servant position. Her ATCA allegations Judgment is still pending. included trafficking and involuntary servitude, Attorneys for plaintiffs are the late false imprisonment, and various violations of Abram Chayes, Jeffrey Bates, Michael Kendall, federal and state minimum wage laws. James Marcellino of McDermott, Will and Defendants attempted to force Ms. Topo to Emory of Boston. reveal her immigration status, but on September 13, 2002, the court granted her a protective Cabello v. Fernandez-Larios, order. 2002 U.S. Dist. LEXIS 17190. Mehinovic v. Vukovic – See Plaintiff is represented by Washington Sondheimer/Eisenbrandt article (#9) in this Square Legal Services. issue
John Doe I and John Doe II v. Milosevic et Manlinguez v. Joseph, 01-CV-7574 (NGG) al., No. 99-cv 11058EFH (D.C. Mass. filed May (E.D.N.Y. filed Nov. 13, 2001). Philippine 17, 1999): Two anonymous citizens of Kosovo worker working in Malaysia was brought to the sued Slobodan Milosevic and 13 other “co- U.S. against her will, kept captive in her conspirators” for genocide, war crimes and employers’ home and forced to work under other gross human rights abuses. Co- abusive conditions including inadequate food. conspirators include the Minister of Foreign Plaintiffs claims included involuntary servitude Affairs of the Federal Republic of Yugoslavia under the Thirteenth Amendment and its (FRY), the FRY Minister of Information, the enforcing statute, 18 U.S.C. 1584; ATCA FRY UN representative, the head of the violations, conversion (of Ms. Manlinguez’s
42 INTERNATIONAL CIVIL LIBERTIES REPORT passport and mail), failure to pay overtime, and Democratic Women--filed a federal lawsuit fraudulent inducement and negligent under the Alien Tort Claims Act in December misrepresentation. Defendants filed a motion to 1996 against the Islamic Salvation Front (FIS) dismiss and this motion was rejected in its and one of its top leaders, Anwar Haddam, for entirety. The challenge to ATCA focused crimes against humanity, war crimes and other merely on whether the claims were timely. 2002 human rights abuses against the democratic U.S. Dist. LEXIS 15277. opposition to FIS --including rape, sexual Plaintiff’s counsel is Washington slavery in the form of forced "temporary Square Legal Services. marriage" and the enforcement of sexual apartheid. Plaintiffs -- feminists, journalists Abiola v. Abubakar, Case No. 01-70714 (E.D. and human rights workers who have opposed Mich. filed Feb. 23, 2001). Three Nigerian the policies of the FIS -- represent a broad activists, including the daughter of the movement in Algeria that also opposes the assassinated former president Chief Abiola, repressive political, economic and social sued the Nigerian president for his role in the policies of the current Algerian state. mistreatment of them because of their pro- Anwar Haddam’s motion to dismiss was democracy activities. The defendant was a rejected in 1998. Doe v. Haddam, 993 F. Supp. member of the ruling council until 1998 and 3 (D.C.D.C. 1998) and the case is in discovery. then became president. Plaintiffs’ claims span In early 2002, the defendant served plaintiffs 1993-1999. The activists’ claims include with contention interrogatories and after their torture, wrongful death, arbitrary detention, response, filed a motion for summary judgment. inhuman and degrading treatment, false That motion has been fully briefed and imprisonment, assault and battery and infliction argument is scheduled for February 3, 2002. of emotional distress. Plaintiffs have already Defendant FIS is currently in default. submitted to deposition. The defendant was Plaintiffs’ attorneys include the ordered to appear for deposition, but failed to International Women's Human Rights Clinic appear. (IWHR), the Center for Constitutional Rights, Defendants filed a motion for summary and the Washington, D.C. firm of Maggio & judgment on January 9, 2002, claiming that the Kattar. court lacks both personal and subject matter jurisdiction, that head of state immunity applies, Endnotes and for a forum non conveniens dismissal to Nigeria. 1 A separate article in this issue by Michael Bazyler Plaintiffs counsel include Benjamin discusses the cases against multinational corporations Whitfield & Associates and The Justice Center, alleging violations occurring during W orld War II. P.C. of Detroit, Michigan.
CASES AGAINST INDIVIDUALS AND/OR UNINCORPORATED ORGANIZATIONS
Doe v. Islamic Salvation Front (FIS) and Anwar Haddam, 96CV0292 (D.C.D.C) Nine women and men, and the Rassemblement Algerien des Femmes Democrates (RAFD)--the Algerian Assembly of
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7. The Vienna Convention on Consular inform detained foreign nationals of their right Relations: Recent Developments to seek consular assistance.3 In many cases, foreign nationals have been sentenced to death By: William J. Aceves* with no opportunity to receive consular assistance at the pretrial, trial, or sentencing I. Introduction stages. While U.S. courts routinely find that the obligation to provide consular notification was The Vienna Convention on Consular disregarded, they refuse to provide any remedy Relations (“Vienna Convention”) was adopted for this Vienna Convention violation. in 1963 to facilitate the work of consular Two recent cases, however, reached a officials. Vienna Convention on Consular somewhat different outcome. Both cases Relations, April 24, 1963, 21 UST 77, TIAS No. involved foreign nationals who were not 6820. Article 36 of the Vienna Convention informed of their right to seek consular provides that foreign nationals must be notified assistance and were subsequently convicted and of their right to communicate with consular sentenced to death. In both cases, the officials when they are detained by law defendants challenged their convictions, arguing enforcement officials. If a foreign national that their Vienna Convention rights were requests consular assistance, law enforcement violated. In both cases, the defendants were officials are required to notify the appropriate granted new sentencing hearings. While the consulate. The purpose of these provisions is Vienna Convention was not dispositive, it twofold. They allow member states to monitor played a prominent role in each case. the well-being of their nationals, and they provide foreign nationals with access to II. Valdez v. State of Oklahoma consular officials. In June 2001, the International Court of In 1990, Gerardo Valdez was convicted Justice (“ICJ”) issued a ruling interpreting the of murder in Oklahoma and sentenced to death. Vienna Convention and the requirements of Despite being a Mexican citizen, Valdez was Article 36. In the LaGrand case, the ICJ held never informed of his right to communicate with that the United States violated the Vienna Mexican consular officials. Valdez never raised Convention when Arizona officials failed to the Vienna Convention violation during his notify two German nationals of their right to direct appeal nor did he raise it through post- consular assistance.1 The ICJ found that the conviction hearings. Vienna Convention creates individual rights and In April 2001, the State of Oklahoma that the procedural default rule could not be scheduled Valdez’s execution for June 19, 2001. used to prevent consideration of Vienna At this point, a relative of Valdez notified the Convention violations.2 Mexican government of the scheduled Despite U.S. ratification of the Vienna execution. This was the first time that the Convention, federal and state law enforcement Mexican government learned of Valdez’s officials often disregard their obligation to conviction and death sentence. The Mexican government immediately retained legal and medical experts to assist Valdez. An * William J. Aceves is Professor of Law and investigation revealed that Valdez had Director of the International Legal Studies Program experienced head injuries in his youth. Several at California Western School of Law. He is a Board medical tests confirmed the existence of brain member of the ACLU of San Diego and Imperial damage. This information was provided to the Counties.
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Oklahoma Pardon and Parol Board, which was stay of execution. In a brief statement, the then considering a clemency petition. Court indicated it needed additional time to On June 6, 2001, the Oklahoma Pardon consider the “unique and serious matter and Parol Board voted to recommend clemency. involving novel legal issues and international Its decision was based, in part, on the Vienna law.”6 Convention violation and the newly discovered On May 1, 2002, the Oklahoma Court medical evidence. While Governor Frank of Criminal Appeals issued its decision in the Keating granted Valdez a thirty-day stay of Valdez case, granting the second Application for execution on June 18, 2001 to consider the Post-Conviction Relief and remanding the case clemency petition, he ultimately denied the for resentencing. Valdez v. State of Oklahoma, petition.4 On August 17, 2001, however, 2002 Okla. Crim. App. LEXIS 23 (2002). Governor Keating granted Valdez a second First, the Court examined Valdez’s thirty-day stay of execution in order to provide Vienna Convention claim. Valdez argued that Valdez with the opportunity to pursue additional the June 2001 decision of the International legal appeals. According to Governor Keating, Court of Justice in the LaGrand case the stay of execution was granted “because of represented a change in the law governing the complicated questions of international law Vienna Convention cases and that this decision which have been presented by this case.”5 was clearly unavailable to him in earlier On August 22, 2001, Valdez filed a proceedings. Thus, Valdez argued that the second Application for Post-Conviction Relief Court should follow the reasoning of the with the Oklahoma Court of Criminal Appeals. LaGrand case and ensure that full effect is He raised four grounds for relief: (1) This Court provided to individual victims of Vienna must follow the decision of the International Convention violations. Id. at *16-*17. Court of Justice in LaGrand and provide relief In response, the Court determined that on the basis of Oklahoma's admitted violation of its power to apply intervening changes in the his rights under Article 36 of the Vienna law to post-conviction applicants was limited by Convention on Consular Relations; (2) Mr. the Oklahoma Capital Post-Conviction Valdez is entitled to relief regardless of proof Procedure Act. Under the Act, a defendant that Oklahoma's violation of Article 36 was seeking to overturn a prior ruling due to an prejudicial; (3) This Court must afford Mr. intervening change in the law must establish Valdez a full and fair opportunity to challenge that the change in the law was unavailable at the his conviction and sentence on the basis of time of the direct appeal or original application. Oklahoma's admitted violation of Article 36; Thus, an intervening change in the law could and (4) Mr. Valdez is entitled to a new trial. only be used to secure relief at the post- The Mexican Government submitted an amicus conviction stage if the legal basis for the claim brief in support of Valdez’s request for a new was unavailable earlier. The Court held that the trial or, at a minimum, for a new sentencing LaGrand decision did not constitute a change in hearing. The amicus brief argued that the the law. The legal basis for the claim – the Vienna Convention and the ICJ’s LaGrand Vienna Convention violation – was available to ruling were binding on the United States and Valdez at the time of his first application for applied to Oklahoma pursuant to the post-conviction relief. In addition, the U.S. Supremacy Clause of the U.S. Constitution. Supreme Court had indicated in Breard v. With Governor Keating’s second stay of Greene that the Vienna Convention did not bar execution set to expire, the Oklahoma Court of application of the procedural default rule. Criminal Appeals granted Valdez an indefinite Breard v. Greene, 523 U.S. 371 (1998). To
45 INTERNATIONAL CIVIL LIBERTIES REPORT apply the ICJ’s ruling instead of the Supreme The Court indicated that Valdez’s Court’s decision “would interfere with the physical, mental, and health history could have nation’s foreign affairs and run afoul of the U.S. affected the jury’s sentencing determination. Constitution.” Valdez v. State of Oklahoma, Thus, “this Court cannot have confidence in the 2002 Okla. Crim. App. LEXIS at *23. jury’s sentencing determination and affirm its Second, the Court considered that “no assessment of a death sentence where the jury factual basis of the Petitioner’s prior medical was not presented with very significant and problems was ascertained by prior trial or important evidence bearing upon Petitioner’s appellate counsel before the filing of mental status and psyche at the time of the Petitioner’s prior appeals.” Id. at *24. crime.” Id. at *27. Indeed, “there is a Specifically, the Court noted that no physical, reasonable probability that the sentencer might mental, or health history was ever introduced at ‘have concluded that the balance of aggravating the trial or sentencing stages. The Court and mitigating circumstances did not warrant indicated that the failure to introduce this death.’” Id. (quoting Strickland v. Washington, evidence was due to the trial counsel’s 466 U.S. 668, 695 (1984). inexperience. Accordingly, the Court granted the Moreover, the Court found that trial Application for Post-Conviction Relief and counsel had failed to inform Valdez of his right remanded the case for resentencing. While the to consular assistance, thereby denying Valdez dissent argued there was no basis for of another resource to assist in his defense. The resentencing due to waiver and res judicata, the Court also criticized Oklahoma law enforcement majority disagreed. “The concept of the Rule of officials, who had contact with Valdez, knew he Law should not bind this Court so tightly as to was a Mexican citizen, and yet failed to inform require us to advocate the execution of one who him of his consular assistance rights. has been denied a fundamentally fair sentencing If Mexican consular officials had proceeding due to trial counsel’s participated, the Court found that they would ineffectiveness, particularly when that likely have discovered and raised Valdez’s ineffectiveness is at least in part attributable to physical, mental, and health history at trial, just State action.” Id. at *28. as they had done at the post-conviction stage. III. United States ex rel. Madej v. We cannot ignore the Schomig significance and importance of the factual evidence discovered In 1982, Gregory Madej was convicted with the assistance of the of murder in Illinois and sentenced to death. Mexican Consulate. It is Although he was a Polish citizen, Madej was evident from the record before never informed of his right to communicate with this Court that the Government Polish consular officials. In addition, the State of Mexico would have of Illinois failed to notify Polish consular intervened in the case, assisted officials of Madej’s detention pursuant to the with Petitioner’s defense, and Consular Convention of 1972 between Poland provided resources to ensure he and the United States. received a fair trial and sentence On April 13, 1998, Madej filed a hearing. Id. at *24-*25. petition for habeas corpus relief with the federal district court for the Northern District of
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Illinois. The petition set forth 31 claims for alter or amend judgment. United States ex rel. relief, including a Vienna Convention claim. Madej v. Schomig, 223 F. Supp.2d 968 (N.D. On March 8, 2002, the federal district Ill. 2002). The court began its analysis of the court issued its ruling on the petition for habeas Vienna Convention claim by noting that the corpus relief. First, the district court considered Seventh Circuit had not resolved whether the Madej’s Vienna Convention claim. The court Vienna Convention created individually acknowledged the existence of a Vienna enforceable rights. The court indicated, Convention violation. However, it refused to however, that the ICJ’s LaGrand decision provide a remedy for the violation. The court addressed and resolved this issue. According to noted that the Vienna Convention claim was the district court, “[t]he ruling of the procedurally defaulted and there was no cause International Court of Justice in LaGrand is to excuse the default. Moreover, the court certainly among the most important found no prejudice. “Thus petitioner’s developments defining the treaty obligations of statement to the police would not have been signatories to the Vienna Convention.” Id. at excluded nor would his indictment have been 978. On the question of individual rights, the dismissed.” United States ex re. Madej v. ICJ ruled conclusively that the Vienna Schomig, 2002 U.S. Dist. LEXIS 380, *32 Convention creates individually enforceable (N.D. Ill. 2002). rights, “resolving the question most American Second, the district court considered courts (including the Seventh Circuit) have left Madej’s claim of ineffective assistance of open.” Id. at 979. The LaGrand decision also counsel. The court found that no evidence suggested that “courts cannot rely upon about Madej’s background or character was procedural default rules to circumvent a review presented at the sentencing stage of his trial. of Vienna Convention claims on the merits.” Id. This gave rise to an ineffective assistance of The district court distinguished the counsel claim. “There can be no confidence in Supreme Court’s 1998 decision in Breard v. the outcome of a capital sentencing hearing Greene on several grounds. In Breard, the where the defendant was represented by an Supreme Court held that the procedural default attorney who failed to present any evidence to rule applied to any claims arising under the counsel against imposition of the death Vienna Convention. The district court noted penalty.” Id. at *19. On this basis alone, the that the ICJ’s ruling in LaGrand undermined a petition for habeas corpus relief was granted. major premise of the Breard ruling – the notion The district court held that the State was that procedural default rules do not interfere required to resentence Madej within sixty days. with Vienna Convention obligations. The Despite the district court’s favorable district court further noted that the Breard ruling ruling, Madej filed a motion to alter or amend was of limited precedential value because it was judgment, seeking a new trial or resentencing. a per curiam decision and was decided on an Madej raised several grounds in his motion, accelerated timetable without full briefing and including a renewed Vienna Convention claim. consideration. Specifically, Madej asked the court to amend its Despite the limitations of Breard, the prior ruling on the Vienna Convention claim in district court found the Supreme Court’s light of the ICJ’s LaGrand decision, which had decision instructive in establishing the been issued after the submission of his 1998 requirements for making a valid Vienna petition for habeas corpus relief. Convention claim. To gain relief, the petitioner On September 24, 2002, the federal must show: (1) that his Vienna Convention district court issued its ruling on the motion to rights were violated; and (2) that the violation
47 INTERNATIONAL CIVIL LIBERTIES REPORT had a material effect on the outcome of the trial The district court went on to reiterate or sentencing proceeding. “In Madej’s case, the the significance of the LaGrand decision. violation of his rights is clear; the effect of the “After LaGrand, . . . no court can credibly hold violation, however, is somewhat muddy.” Id. at that the Vienna Convention does not create 980. It is doubtful that consular assistance individually enforceable rights.” Id. at *3. In would have affected the outcome of the trial. In addition, LaGrand acknowledged that the contrast, consular assistance could have affected Vienna Convention prohibits the use of the sentencing hearing. “Particularly in this procedural default rules to prevent judicial case, where trial counsel failed completely to review of purported violations. “This undertake any investigation of the client’s life, interpretation of the Convention is binding upon character, and background in preparation for the the United States and this Court as a matter of sentencing phase, the participation of the federal law due to the ratification of the Consulate could possibly have made a Optional Protocol.” Id. at *4. difference.” Id. The district court then considered the While the district court granted the role that consular assistance could have played motion to alter or amend judgment on the in Madej’s case. While consular assistance Vienna Convention claim, it denied relief on would not have affected the outcome at the trial this claim. “As this Court has already granted stage, it could have played a significant role at Petitioner relief from his death sentence, this the sentencing stage. “What the Consulate issue becomes moot.”7 Id. almost certainly would have done is provided Subsequently, the State of Illinois filed Petitioner with an attorney who would have a motion for reconsideration, arguing that the assisted in obtaining constitutionally effective district court had chosen to follow international assistance at the sentencing hearing.” Id. at *6. law and ignore the decisions of the Supreme Such assistance could have resulted in a Court. Accordingly, the reconsideration motion different outcome at the sentencing hearing. asked the district court to disregard the LaGrand Despite these findings, the district court decision and revise its earlier ruling. reiterated that it had not granted habeas corpus On October 22, 2002, the district court relief based on the Vienna Convention violation. denied the reconsideration motion. United Due to restrictions on habeas corpus relief, the States ex rel. Madej v. Schomig, 2002 U.S. Dist. court noted it was doubtful that a federal court LEXIS 20170 (N.D. Ill. 2002). The court noted could premise habeas relief on a Vienna that the United States had ratified both the Convention violation. As a result, the court Vienna Convention and the Optional Protocol indicated that it premised its earlier ruling on Concerning the Compulsory Settlement of the ineffective assistance of counsel claim. Disputes. Under the Optional Protocol, the United States had agreed to submit disputes IV. Conclusion arising out of the interpretation or application of the Vienna Convention to the compulsory Valdez and Madej are significant cases. jurisdiction of the ICJ. Accordingly, the ICJ’s Both cases recognize the binding nature of the interpretations of the Vienna Convention are Vienna Convention and the Article 36 binding upon the United States. “To disregard obligation to inform foreign nationals of their one of the I.C.J.’s most significant decisions right to seek consular assistance. Both cases interpreting the Vienna Convention would be a recognize the importance of consular assistance decidedly imprudent course.” Id. at *2. at the pre-trial, trial, and sentencing stages. Madej also recognizes the binding nature of ICJ
48 INTERNATIONAL CIVIL LIBERTIES REPORT rulings and the implications of the LaGrand 5 Press Release, Governor Frank Keating, Governor decision on U.S. courts. Grants 30-Day Stay of Execution to Valdez, (Aug. These cases are also significant because 17, 2001). they reveal the potential influence of 6 international law in domestic litigation, John G reiner, Mexican National G ranted Indefinite including capital litigation.8 While the Vienna Stay of Execution, THE DAILY OKLAHOMAN, Sept. 11, 2001. Convention claims were not dispositive, they played a prominent role in each case. Thus, 7 In a footnote, the district court also expressed advocates must continue to press for recognition concern about retroactivity. This footnote appears to of international law and its status in the United refer to the Supreme Court’s earlier ruling in Teague States “as the supreme law of the land.” v. Lane, which had imposed a retroactivity limitation on federal habeas corpus actions. Teague v. Lane, Endnotes 489 U.S. 288 (1989). Despite the district court’s apparent concern with retroactivity, it is unclear that the Teague rule would apply to preclude review of a 1 Federal Republic of Germany v. United States (June treaty violation. 27, 2001), located at http://ww w.icj-cij.org. See genera lly William J. Aceves, International Decision: 8 See generally Joan Fitzpatrick, The Unreality of LaGrand, 96 AM. J. INT’L L. 210 (2002). International Law in the United States and the LaGrand C ase, 27 YALE J. INT’L L. 427 (2002); John 2 The procedural default rule precludes a defendant Quigley, LaGrand: A Challenge to the U.S. from raising a claim on appeal that was not raised in Judiciary, 27 YALE J. INT’L L. 435 (2002). earlier proceedings.
3 As a resu lt, the Vien na Conventio n contin ues to engender significant scholarly interest. See, e.g., Howard S. Schiffman, The LaGrand Decision: Evolving Legal Landscape of the Vienna Convention on Consular Relations in U.S. Death Penalty Cases, 42 SANTA CLARA L. REV. 1099 (2002); Cara Drinan, Article 36 of the Vienna Convention on Consular Relation s: Private Enforcement in Ame rican Courts After LaGrand, 54 STAN. L. REV. 1303 (2002); Jennifer Lynn e Wein man, The Clash Between U.S. Criminal Procedure and the Vienna Convention on Consular Relations: An Analysis of the International Court of Justice Decision in the LaG rand Case, 17 AM. U. INT’L L. REV. 857 (2002); Stephanie Baker, Germany v. United States in the International Court of Justice: An International Battle Over the Interpretation of Article Thirty-six of the Vienna Convention on Consular Relations and Provisional Measures Orders, 30 GA. J. INT’L & COMP. L. 277 (2002).
4 Mexican President Vicente Fox contacted Governor Keating and requested clemency on behalf of Valdez.
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8. Romagoza v. Garcia: Proving courtroom and against the same two generals by Command Responsibility Under The families of the four United States churchwomen Alien Tort Claims Act And The who were raped and murdered by members of Torture Victim Protection Act the Salvadoran National Guard in 1980. In November 2000, a jury rendered a verdict in the By: Beth Van Schaack* Ford case that the generals could not be held liable for the crimes, apparently because the I. Introduction jury was not satisfied that the two generals had “effective control” over their subordinates. The On July 23, 2002, in the courtroom of Romagoza case thus provides an important Judge Daniel T.K. Hurley, a South Florida jury precedent for other human rights cases brought returned a $54.6 million verdict, encompassing against military commanders for the human punitive and compensatory damages, in favor of rights violations of their subordinates and also three Salvadoran survivors of torture. The case, has in part rectified what many observers felt Romagoza v. Garcia, No. 99-8364 CIV- was an unfair result in the Ford case. It also HURLEY, was brought by three Salvadoran represents one of the first instances in which a refugees—Dr. Juan Romagoza, Carlos defendant in a human rights case under either Mauricio, and Neris Gonzalez—against two the ATCA or the TVPA presented a vigorous former Ministers of Defense of El Salvador. defense (which involved testifying in their own Plaintiffs were represented by the non-profit defense) and in which at least one of the Center for Justice & Accountability, with pro defendants (Vides Casanova) is believed to have bono assistance from Bay Area attorneys of substantial assets. Morrison & Foerster LLP, James K. Green of West Palm Beach, and Prof. Carolyn Patty II. The Parties To The Action Blum and the University of California Boalt Hall School of Law International Human Rights The case was brought by three Clinic. plaintiffs, all refugees from El Salvador, against The verdict heralds a major victory in two former Ministers of Defense of El Salvador the worldwide fight against impunity for human for abuses during the period 1979-1983. That rights violations. Most significantly, the case period was marked by widespread atrocities represents one of the first modern cases brought committed by members of the Salvadoran under the doctrine of command responsibility in Military and Security Forces against civilians, which the defendant commanders testified in including clerics and churchworkers, health their own defense and cements the doctrine into workers, teachers, members of peasant and labor United States law. The one other recent case in unions, the poor, and anyone alleged to have which this occurred, Ford v. Garcia, Case No. leftist sympathies. A Truth Commission 99-08359-CV-DTKH, was brought in the same established by the United Nations pursuant to the Salvadoran Peace Accords concluded that tens of thousands of civilians were detained, tortured, murdered or disappeared during the * The au thor, a co nsulting attorney with worse 12 years of the civil war ending in 1992 The Center for Justice & Accountability and a former and that 85% of the abuses were attributable to associate with Morrison & Foerster LLP, was a members of the Military and Security Forces, as member of the trial team. Ms. Van Schaack teaches opposed to unaffiliated death squads or the rebel international law at Santa Clara University School of forces.1 The plaintiffs were three of the civil Law.
50 INTERNATIONAL CIVIL LIBERTIES REPORT war’s victims who were fortunate to survive where others perished.
A. Dr. Juan Romagoza political asylum and now runs a free health clinic for the Latino population of Washington Dr. Juan Romagoza, was working in an D.C. impromptu health clinic in a church when a B. Prof. Carlos Maurici detachment of the Salvadoran Army and Security Forces arrived in military vehicles. Prof. Carlos Mauricio was teaching Because he had medical equipment and what agronomy at the University of El Salvador when appeared to be military boots, he was captured he was lured out of his classroom and taken to and taken to a local army base. From there, he the National Police headquarters in San was transferred by helicopter to the National Salvador. Prof. Mauricio was detained in a Guard Headquarters in San Salvador where he secret cell and tortured for approximately nine was brutally tortured for 3 weeks. As part of his days, which included being beaten repeatedly torture, he was hung by his fingertips with wire with fists, feet and metal bars; being hung for and shot through his left arm to signify that he hours with his arms behind his back; and being was a “leftist”, which destroyed his hands and forced to witness the torture of others. As a has made it impossible for him to continue to result of these beatings, two ribs were broken practice surgery. He was also beaten, raped, and his vision was permanently damaged in one starved, electro-shocked, and kept in hideous eye. conditions. Following this phase of his detention, At one point during his detention, Dr. Prof. Mauricio was inexplicably transferred to a Romagoza was visited by an individual whom public cell where he remained for another nine his torturers called “mi colonel” or “the big days or so. It was at this time that he realized boss” and to whom they acted deferentially. Dr. that he would be released. While still detained Romagoza could see under his blindfold that the in this public cell, Prof. Mauricio was visited by individual was wearing a formal uniform and a representative of the International Committee well-polished boots. This new arrival of the Red Cross (ICRC), a non-governmental interrogated Dr. Romagoza about two of his organization based in Geneva that implements uncles who were in the military, asking him if the four 1949 Geneva Conventions and their two they were passing weapons to the guerillas. Protocols by, among other things, monitoring When Dr. Romagoza was eventually released the treatment of prisoners or war. Prof. into his uncle’s custody, he saw defendant Mauricio informed the ICRC representative that General Vides Casanova talking to his other detainees were being tortured in clandestine uncle and recognized the defendant’s voice as cells, but he was informed that the government belonging to the person who had been in the of El Salvador was not allowing the ICRC to torture room with him. visit any other areas of the building. Prof. After his release, which as it turned out Mauricio was finally released due to the was brokered by his uncles in the military, Dr. intervention of his then father-in-law, who was Romagoza escaped from El Salvador and in the military. Prof. Mauricio believes he was eventually made his way across the targeted for capture because he had traveled out Mexico/United States border. He later received of the country for schooling (he received a
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Masters Degree in Mexico) and worked with specializes in working with victims of torture. campesinos (poor farmers) to help them Ms. Gonzalez eventually moved to Chicago to increase their yields. get the help she needed and obtained political Prof. Mauricio fled from El Salvador asylum. She now is the Executive Director of soon after his release and made his way to San an environmental education program there. Francisco where he got a job washing dishes. He eventually learned English, was granted D. The Defendants legal permanent resident status, and was awarded a Masters in Genetic Engineering and The defendants in this action are two his teaching credentials. He now teaches former Ministers of Defense of El Salvador. science at a Bay Area school that serves One defendant—General Jose Guillermo disadvantaged youth. Garcia—was Minister of Defense from 1979–1983. At that time, the other C. Neris Gonzalez defendant—General Carlos Eugenio Vides Casanova—was the Director-General of the Neris Gonzalez was a catechist who National Guard, one of three internal Security taught literacy and simple mathematics to Forces under the jurisdiction of the Ministry of campesinos in the province of San Vicente. She Defense along with the Army and other Military was captured one day in the market by members Forces. When General Garcia retired in 1983, of the National Guard and taken to a local General Vides Casanova was appointed garrison. There, she was tortured for three Minister of Defense. The defendants both weeks, raped repeatedly, and was forced to arrived in the United States in 1989, and watch others be tortured, mutilated and killed. General Garcia later obtained political asylum At the time, she was eight months pregnant. based on allegations that he was being The guardsmen wounded her belly repeatedly, threatened by leftist forces within El Salvador. at one point balancing a bed frame on her and They both lived comfortably in South Florida riding the frame like a seesaw. until their presence there was discovered in Because of the trauma she suffered, Ms. 1999 by the Lawyers Committee for Human Gonzalez has no firm memory of how she Rights, which had been representing the escaped captivity. She has been able to piece families of the four churchwomen in their quest together that she was taken in the back of a for justice and for information about the deaths truck full of dead bodies to a local dump. At of the churchwomen. some point, her baby was born, and local villagers heard the sound of her baby crying and III. The Legal Theory: The Doctrine of rescued her. Her baby died two months later of Command Responsibility injuries he had received in utero, but Ms. Gonzalez’s only memories of this are what her The case was brought under the mother and daughter have told her. international legal doctrine of command Ms. Gonzalez eventually moved to the responsibility. This doctrine has existed as long United States at the suggestion of a therapist in as there have been military institutions, but it El Salvador who told her that her flashbacks, was utilized most prominently during the anxiety attacks, and the gaps in her memory Nuremberg and Tokyo proceedings following were due to the torture she suffered and that he World War II to convict top Nazi and Japanese was ill equipped to treat her. He told her about defendants.2 Since then, the doctrine has been the Marjorie Kovler Center in Chicago, which employed in several ATCA and TVPA cases3
52 INTERNATIONAL CIVIL LIBERTIES REPORT and also serves as the basis for prosecutions governing when an individual could be before the two ad hoc war crimes tribunals for considered the legal subordinate of a defendant Yugoslavia and Rwanda that have been commander within the understanding of the first established by the United Nations Security prong of the doctrine. With respect to this Council. Long a doctrine of customary burden, the two ad hoc criminal tribunals have international law, command responsibility has required the prosecution to demonstrate that the in modern times been codified in Protocol I to defendant commander exercised “effective the four 1949 Geneva Conventions,4 the statutes control” over the individual perpetrators.8 In of the two war crimes tribunals, 5 and the statute other words, a showing of de jure command of the International Criminal Court.6 The United over an individual within a military hierarchy is States military, for its part, has long endorsed a relevant but not sufficient showing to satisfy the doctrine that commanders are responsible the first prong of the doctrine.9 Rather, the two for the actions of their subordinates.7 war crimes tribunals are requiring a showing of According to this longstanding doctrine, de facto control in addition to any de jure a military commander can be held legally command.10 This burden requires the responsible—either criminally or civilly—for presentation of evidence that, among other unlawful acts committed by his subordinates if things, the commander was actually able to the commander knew—or should have known issue orders to his subordinates and to ensure given the circumstances—that his subordinates that those orders were carried out. Although were committing abuses and he did not take the this doctrine was developed in the context of the necessary and reasonable measures to prevent Yugoslav conflict, in which individuals these abuses or to punish the perpetrators. Thus, operating without a grant of de jure command the doctrine involves in essence three main from any formal state were exercising de facto elements: (1) The direct perpetrators of the control over individuals committing abuses, the unlawful acts were subordinates of the tribunals have applied the effective control defendant commander; (2) The defendant requirement within the context of de jure commander knew (actual knowledge) or should commanders as well.11 have known (constructive knowledge) that his Accordingly, Judge Hurley ruled in the troops were committing, had committed, or Ford case that prong one of the doctrine would were about to commit abuses; and (3) The be satisfied with proof that defendants exercised defendant commander failed to take steps to effective control over the individuals prevent or punish such abuses. committing the abuses. The Ford plaintiffs Thus, the plaintiffs (with the exception appealed this ruling, urging that the Ford jury of Dr. Romagoza who identified General Vides instructions improperly placed the burden on Casanova in the torture chamber) did not argue them to prove that the generals had de facto that the generals personally participated in their control over their subordinates in the National detention and torture. Rather, they argued that Guard, in addition to de jure command, which because the defendants were on notice that their was uncontested. On April 30, 2002, the troops were committing abuses but nonetheless Eleventh Circuit Court of Appeals upheld the failed to properly supervise them or punish district court’s jury instructions, requiring the perpetrators, the commanders should be held plaintiff to prove that the defendant commander liable for the abuses plaintiffs suffered. exercised effective control over his troops.12 Early on in the life of both cases against The Eleventh Circuit opinion in effect gave the the generals, it was clear that a key challenge Romagoza plaintiffs their marching orders. would be to establish the legal standard Accordingly, the jury instructions in the
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Romagoza case set forth the elements of the be able to intervene to prevent abuses or punish doctrine as follows: (1) The plaintiff was perpetrators. This defense proved successful in tortured by a member of the military, the the Ford case, as statements by jurors to the security orces, or by someone acting in concert press indicate that they determined that the with the military or security forces; (2) A plaintiffs had not met their burden of proving superior-subordinate relationship existed that the generals had “effective control” over the between the defendant/military commander and subordinates who committed the the person(s) who tortured the plaintiff; (3) The churchwomen’s murders. defendant/military commander knew, or should The defense verdict in Ford was a have known, owing to the circumstances of the caution to the Romagoza plaintiffs. time, that his subordinates had committed, were Accordingly, the Romagoza plaintiffs presented committing, or were about to commit torture an array of expert testimony and documents and/or extrajudicial killing; and (4) The identifying widespread patterns of torture by defendant/military commander failed to take all members of the Salvadoran military and necessary and reasonable measures to prevent Security Forces during the period in question. torture and/or extrajudicial killing, or failed to This evidence included reports of torture punish subordinates after they had committed published in the press and presented to the torture and/or extrajudicial killing. Generals at the time by non-governmental The instructions then went on to explain organizations and U.S. officials, among others. that “effective control” means that “the Plaintiffs also demonstrated through expert and defendant/military commander had the actual percipient testimony that the civilian abuses ability to prevent the torture or to punish the being committed by the subordinates of the persons accused of committing the torture. In generals were systematic rather than random. In other words, to establish effective control, a this regard, plaintiffs demonstrated that plaintiff must prove, by a preponderance of the particular demographic segments were evidence, that the defendant/military specifically targeted, especially doctors, commander had the actual ability to control the teachers and church workers who were working person(s) accused of torturing the plaintiff.” with the poor. The plaintiffs themselves were The instructions also clarified that it able to testify that even if they were detained by was not necessary to prove that the defendant plainclothed persons, each of them was commander knew that the plaintiffs themselves eventually taken to an official government would be targeted for abuse; rather, it was detention center where they were tortured by sufficient that the defendants knew that individuals in uniform. subordinates were committing human rights Plaintiffs also demonstrated that the top abuses like those suffered by the plaintiffs. military echelons were able to control their troops when they wanted to, for example to IV. The Defense And Plaintiffs’ Rebuttal implement the banking reform or fight the civil war. In this regard, Professor Terry Karl of Given the centrality of the concept of Stanford University gave expert testimony “effective control” to the application of the describing the violence in El Salvador during doctrine of command responsibility, defendants the relevant period as a spigot, which could be not surprisingly argued in both cases that the turned on and off by the military as needed. A civil war in their country had created a state of retired Argentine colonel—Col. Jose Luis chaos that rendered it impossible for them to Garcia, whose extensive knowledge of El know what their subordinates were doing or to Salvador stemmed from expert testimony he
54 INTERNATIONAL CIVIL LIBERTIES REPORT provided in the trial of the murderers of the six Paul v. Avril, 901 F.Supp. 330 (S.D.Fla. 1994). Jesuits who were killed in El Salvador in 1989—discussed the structure and operation of 4 Article 86(2), Protocol Additional to the Geneva a military chain of command in general and of Conventions of 12 August 1949 and Relating to the Latin American militaries in particular. He also Protection of Victims of International Armed presented expert testimony that the Salvadoran Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 (Protocol military’s communications and transportation I), reprinted at 16 I.L.M. at 1429. infrastructure were sufficiently developed to 5 Article 7(3), Statute of the International Tribunal enable the defendants to exercise control over for the Prosecution of Persons Responsible for their troops. Finally, plaintiffs presented Serious Violations of International Humanitarian significant evidence of the generals’ failure to Law Committed in the Territory of the Former denounce abuses, let alone investigate or Yugoslavia Since 1991, annexed to Report of the prosecute perpetrators, despite their ability to do Secretary-General Pursuant to Paragraph 2 of S.C. so. In this regard, plaintiffs’ military expert Res. 808, U.N. SCOR, 3175th mtg., U.N. Doc. provided examples of what the defendants could S/25704 (1993); Article 6(3), International Criminal have done to curb abuses by their subordinates Tribun al for the P rosecution of Persons R esponsible had they had the will to do so. for Genocide and Other Serious Violations of International Humanitarian Law Committed in the The verdict demonstrated that plaintiffs’ Territory of Rwanda and Rwandan Citizens evidence persuaded the jury, who found Responsible for Genocide and Other Such Violations incredible defendants’ denials that their Comm itted in the Territory of Neighbouring States, subordinates were committing abuses or claims S.C. Res. 955, U.N. SCOR, 3453d mtg., U.N. Doc. that in the chaos of the civil war, there was S/Res/955 (1994), reprinted in 33 I.L.M. 1598 nothing more they could have done. The jury (1994 ). foreperson told journalists afterward that “The generals were in charge of the National Guard 6 Article 28, Rome Statute of the International and the country… It was a military dictatorship. Criminal Court, U.N. Diplomatic Conference of They had the ability to do whatever they chose Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. to do or not do.” A/CONF.183/9 (1998).
Endnotes 7 See, e.g., Department of the Army Field Manual (“AFM ”), THE LAW OF LAND WARFARE, 27-10, Art. 1 See From Madness to Hope: the 12-Year war in El 501, July 18, 1956 (“[i]n some cases, military Salvador: Report of the Commission on the Truth for commanders may be responsible for war crimes El Salvador, U.N. Doc. No. S/25500 (March 15, committed by subordinate members of the armed 1993). forces, or other persons subject to their control.”)
8 2 See Judgment of October 1, 1946, International These two cases were unique in their consideration Military Tribun al Judgment and Sen tence, reprinted of international leg al preced ent. See Fo rd v. Ga rcia, th in 41 Am. J. Int’l L. 172, 186 (1947) (Nuremberg 289 F.3d 1283 (11 Cir. 2002) (notin g “The recently Judgm ent). See also Yamashita v. Styer, 327 U .S. 1 constituted international tribunals of Rwanda and the (1946). former Yugoslavia have applied the doctrine of command responsibility since In re Yamashita, and 3 See e.g., In re Estate of Ferdinand Marcos Human therefore their cases provide insight into how the Rights Litigation, 25 F.3d 1467 (9th Cir. 1994); Kadic doctrine should be applied in TVPA cases.”). v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D.Ca. 1987);
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9 The Yugoslav tribunal has also ruled that a showing of de jure command gives rise to a legal presumption that the defendant commander exercised effective control. The Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement of the Int’l Crim. Trib. Former Yugo., Tr. Chamber (November 16, 1988). In the Romagoza case, plaintiffs argued that the jury should be instructed on the existence and operation of this presumption, otherwise it would be meaningless. However, Judge Hurley made a judicial determination that defendants had presented sufficient evidence to rebut the presumption and thus declined to instruct the jury on the presumption.
10 See, e.g., The Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgement of the Int’l Crim. Trib. Former Yugo., Tr. Chamber (November 16, 1988), at ¶378 (ruling that “in order for the principle of superior respon sibility to be applicab le, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having material ability to prevent and punish the com mission of these o ffenses.”).
11 See Prosecuto r v. Blaskic, Case No. IT-95-14-T, Judgement of the Int’l Crim. Trib. Former Yugo., Tr. Chamber (March 3, 2000) (requiring evidence of effective control in case against de jure comm ander).
12 Ford v. Garcia , 289 F.3d 1283 (11th Cir. 2002). Plaintiffs in Ford have petitioned for certiorari.
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9. THE CENTER FOR JUSTICE & international law” -- norms on which there is ACCOUNTABILITY: HOLDING general agreement among nations, and which PERPETRATORS ACCOUNTABLE are definable and obligatory. Courts have recognized torture, extrajudicial killing, By: Joshua Sondheimer and Matthew arbitrary detention, cruel inhuman or degrading Eisenbrandt* treatment, slave labor, war crimes, crimes against humanity, and genocide, as among the A. Introduction violations prohibited by customary international law, and which are thus actionable under the Over the past year, the Center for ATCA. The TVPA, passed by Congress in Justice & Accountability (CJA), a human rights 1991, affirmed the application of human rights law organization based in San Francisco, has norms in cases under the ATCA, and extended won several important victories on behalf of the ATCA by providing a cause of action to survivors of torture and other abuses in actions citizens and non-citizens alike for extrajudicial in U.S. federal courts against perpetrators of killing and torture. human rights violations. These included obtaining multi-million dollar civil judgments B. Victories against perpetrators in three cases, and securing three favorable published decisions. This article 1. Bosnian Serb Soldier Found describes these victories, and other CJA cases Liable for Torture and Other and projects. Abuses with ACLU Assistance Founded in 1998, CJA works to prevent torture and other serious human rights abuses by CJA, with lead counsel Paul Hoffman helping survivors hold perpetrators accountable. and Gerry Weber of the ACLU of Georgia, won The principal legal mechanisms on which CJA an important victory in April 2002, when Senior relies are the Alien Tort Claims Act (ATCA) Judge Marvin Shoob of the United States and the Torture Victim Protection Act (TVPA). District Court for the Northern District of 28 U.S.C. § 1350, and note. These laws allow Georgia issued a published decision finding U.S. federal courts to hear civil claims against Bosnian Serb soldier Nikola Vuckovic liable for persons allegedly responsible for severe human torture and other abuses against four Bosniak rights abuses. civilians (Bosnian of Muslim Slavic ancestry) The ATCA, adopted in 1789 provides during the Serb “ethnic cleansing” campaign in jurisdiction to federal district courts over cases 1992. The plaintiffs each were awarded $35 brought by non-citizens for torts committed in million in compensatory and punitive damages. violation of “the law of nations.” Beginning The decision, which establishes valuable with the Second Circuit Court of Appeals’ precedent on a number of international law and landmark decision in Filartiga v. Pena-Irala, ATCA issues, is published as Mehinovic v. 630 F.2d 876 (2nd Cir. 1980), U.S. courts have Vuckovic, 198 F. Supp.2d 1322 (N.D. Ga. 2002). held that conduct which violates the “law of The Mehinovic case arose in 1998, after nations” under the ATCA includes human rights plaintiff Kemal Mehinovic, a Bosniak refugee abuses prohibited by norms of “customary living in Salt Lake City, learned from a friend that the friend had seen defendant Vuckovic in an Atlanta suburb. Vuckovic and Mehinovic * Joshua Sondheimer is the CJA Litigation had both lived in the same town of Bosanski Director. Matthew Eisenbrandt is a CJA Staff Samac and knew each other: Vuckovic’s wife Attorney.
57 INTERNATIONAL CIVIL LIBERTIES REPORT had worked for Mehinovic in his bakery until Paul testified as an expert witness about how the April 1992, when Bosnian Serbs and Serb abuses suffered by plaintiffs were simply part of soldiers assaulted the town, took control over a systematic and widespread campaign of the formerly ethnically-mixed local government, abuses committed by Bosnian Serbs against and detained and tortured hundreds of Muslim Bosniaks and Croats during the Balkans men. Mr. Mehinovic and the three other conflict. CJA arranged for counseling support plaintiffs in the case were among those victims. for plaintiffs during the trial. Vuckovic was one of a number of Bosnian Serb On April 29, 2002, Judge Shoob issued soldiers who severely beat Mehinovic and other his findings and conclusions in the case, Bosniak and Croat civilians held in detention awarding each of the four plaintiffs $10 million camps in the town. in compensatory damages and $25 million in The victims’ lawsuit alleged that punitives. The court's decision has already been Vuckovic was responsible for torture and other cited by several other courts, and establishes forms of cruel, inhuman or degrading treatment; important precedent by: war crimes; crimes against humanity; and genocide. Vuckovic responded to the complaint • providing the first published and was represented by counsel until soon judgment on a cause of action before the trial. However, two weeks before the for crimes against humanity; scheduled trial in October 2001, Vuckovic fired • elaborating on the elements and his lawyer and advised the court, through his application of a claim for war lawyer, that he was out of the country and crimes; would not return for the trial. Judge Shoob • recognizing a cause of action allowed defense counsel to withdraw, but kept for "cruel, inhuman or the trial on calendar as scheduled. degrading treatment"; When Vuckovic failed to appear on the • supporting use of decisions of first day of trial, October 22, 2001, Judge Shoob the international criminal struck Vuckovic’s answer, and began a two-day tribunals for Yugoslavia and bench trial in his absence. Each of the four Rwanda in identifying plaintiffs testified about suffering brutal principles of customary beatings and other abuses at the hands of international law; Vuckovic and other Bosnian Serbs while they • recognizing civil liability for were being held with other Bosniaks and Croats persons who aid and abet in ad hoc detention facilities in Bosanski Samac. human rights abuses; and Some plaintiffs testified about being subjected • supporting substantial damage to mock executions or games of “Russian awards against human rights Roulette.” Others were beat with rifles and abusers. metal pipes, or kicked with boots while prone on the floor. Vuckovic subjected one of the Counsel on the case included lead plaintiffs to a long and particularly severe counsel Paul Hoffman of Schonbrun, beating, during which Vuckovic forced the DeSimone, Seplow, Harris & Hoffman, LLP in near-unconscious plaintiff to lick his own blood Santa Monica; Gerald Weber, Legal Director of off Vuckovic’s boots. During the incident, the ACLU of Georgia; and Joshua Sondheimer, Vuckovic carved a Muslim crescent symbol on CJA. Research and drafting support was the plaintiff’s forehead with a knife. Former provided by Amanda Smith of Brobeck, Phleger Human Rights Watch senior researcher Diane & Harrison.
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2. Salvadoran Generals Found Responsible for Torture
On July 23, 2002, following a four-week trial, a federal jury in West Palm Beach, Florida returned a verdict of $54.6 million against two Salvadoran generals, living in Florida since 1989, for their responsibility for the torture of three Salvadorans in the early 1980s. The victorious plaintiffs, Juan Romagoza, Neris Gonzales and Carlos Mauricio, all now live in the United States. This case is discussed in this issue in Professor Van Schaack’s article.
3. Two Published Decisions in Case Against Officer in Pinochet’s “Caravan of Death”
One month after the 1973 military coup in Chile against the government of Salvador Allende, a group of military officers, operating under the orders of General Augusto Pinochet, traveled by helicopter to several cities in Northern Chile on a vaguely defined “official” mission of reviewing cases against political prisoners detained after the coup. In each town in which they stopped, a dozen or more prisoners were taken from detention in jails or garrisons, and clandestinely executed. Armando Fernandez Larios, a first lieutenant in the Chilean army in 1973, was one of the officers who participated in this mission, now known as the “Caravan of Death.” Fernandez Larios was reported to be one of the most brutal of the group. In 1999, after learning that he was living in Florida, CJA filed suit against Fernandez Larios on behalf of the mother and several siblings of Winston Cabello, a regional planning director in the Allende administration who was one among the more than 70 victims of the Caravan. The plaintiffs all reside in the United States, and three of the four are naturalized U.S. citizens.
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Fernandez Larios has a notable siblings to pursue their claims for their brother’s background in the United States. He entered the summary killing. U.S. in 1987 pursuant to a plea agreement with Following a renewed motion by federal prosecutors, in which he confessed to defendant to dismiss the lawsuit, the court in aiding the perpetrators of the 1976 Washington, June 2002 issued its second published decision D.C., car-bomb assassination of former Chilean in the case, Cabello v. Fernandez Larios, 205 F. Ambassador Orlando Letelier and his American Supp. 2d 1325 (S.D. Fla. 2002), again denying assistant Ronni Moffitt. Fernandez Larios defendant’s motion. This second decision also served a brief sentence, and eventually settled in establishes valuable precedent: Florida, where he currently resides. In 1999, the Chilean government requested Fernandez • by providing the first detailed Larios’ extradition in connection with criminal discussion in an ATCA case proceedings against former General Pinochet. that principles of accomplice However, Fernandez Larios’ plea agreement and conspiracy liability are with U.S. prosecutors appears to bar his well-established as customary extradition to Chile. An Argentine court also has international law, and thus requested Fernandez Larios’ extradition in apply in actions under the connection with the assassination of former ATCA and TVPA; and Chilean general Carlos Prats in Argentina • by providing the first holding during the 1970’s. Both requests remain in the Eleventh Circuit that pending before the U.S. government. relatives of a torture victim who Fernandez Larios, represented by is subsequently killed may counsel, moved to dismiss the Cabello case on bring a claim under the TVPA grounds that the case was barred by the statute for the victim's torture, as well of limitations, that plaintffs lacked standing, and as the murder; that the court lacked of subject matter jurisdiction. In an August 2001 decision, Estate Trial in the Cabello case is scheduled to of Cabello v. Fernandez Larios, 157 F.Supp.2d begin in late May or early June 2003. Pro bono 1345 (S.D. Fla. 2001), the court held, as a counsel on the case include Robert Kerrigan of matter of first impression in the Eleventh Florida’s Kerrigan, Estess, Rankin & McLeod, Circuit both that the TVPA applies retroactively Leo Cunningham and Nicole Healy of Palo to conduct occurring prior to the TVPA’s Alto’s Wilson, Sonsini, Goodrich & Rosati, and enactment in 1992, and that its ten-year statute Florida attorney Julie Ferguson. of limitations could be equitably tolled. The court ruled that the concealment of Cabello’s 4. Indonesian General Found body following his death until a 1990 Liable for Atrocities in East exhumation, and the continuation of a repressive Timor military government until 1990, tolled the statute of limitations until that year, and that In 1999, the people of East Timor voted plaintiffs’ claims thus were not time-barred. by referendum in favor of seeking independence The court also found that crimes against from Indonesia. Following the vote, the humanity, extrajudicial killing, and cruel, Indonesian military and related militia groups inhuman or degrading treatment, are actionable unleashed a campaign of terror against East as violations of the “law of nations,” under the Timorese civilians that included killings, mass ATCA, and confirmed the right of Cabello’s forced relocation, and the destruction of towns
60 INTERNATIONAL CIVIL LIBERTIES REPORT and infrastructure. In March 2000, CJA joined East Timor population, to repress East Timorese with the Center for Constitutional Rights (CCR) who supported independence from Indonesia, in bringing suit on behalf of six victims of this and to destroy East Timor’s infrastructure violence against Johny Lumintang, a Lieutenant following the vote for independence.” He also General and Chief of Staff of the Indonesian found that Lumintang bore “command Army. The suit alleges that Lumintang bears responsibility” for failing to prevent or punish responsibility as a military commander for abuses committed by his subordinates that he systematic abuses committed in East Timor by knew or should have known were occurring. Indonesian troops under his control following In March of 2002, defendant moved to the independence vote. vacate the default judgment against him, CJA and CCR served defendant claiming that the court lacked personal and Lumintang while he was visiting in the subject matter jurisdiction. A decision on Washington, D.C. area in March 2000. defendant’s motion remains pending. Lumintang, now the Secretary General of the Pro bono counsel on the case are Steven Indonesian Ministry of Defense, a key position Schneebaum & Brian Hendrix of Patton Boggs, in the armed forces, failed to make any LLP, Washington DC; and Judith Chomsky and appearance in the case. District Judge Gladys Anthony DiCaprio, Center for Constitutional Kessler accordingly found Lumintang in default, Rights. The case is Doe v. Lumintang, Civ. No. and in November of last year entered a default 00-674 (GK) (AK). judgment against him. A hearing on the amount of damages C. New Cases was held in Washington, D.C. on March 27-29, 2001. Three of the surviving plaintiffs came 1. Torture and Disappearances from East Timor and provided emotional in Honduras testimony about their ordeals, which included arbitrary detention, torture, and the extrajudicial Beginning in the late 1970s, security killing of family members. Experts also forces in Honduras began a campaign of testified about the widespread and systematic abductions and disappearances against alleged nature of atrocities committed by the Indonesian political subversives. Hundreds were arrested military and affiliated militias in East Timor, the without charge and tortured in special detention military command structure, and the facilities. More than 150 people were psychological impacts suffered by plaintiffs as a disappeared after having been abducted by result of their experiences. members of the security forces. The Inter- On September 13, 2001, the court American Court of Human Rights and Leo issued its findings and conclusions, holding Valladares, the National Commissioner for the defendant liable for authorizing and condoning Protection of Human Rights in Honduras, both abuses against plaintiffs by troops in East found that the Honduran Armed Forces were Timor, and awarding plaintiffs a total of $66 responsible for this widespread campaign of million. The court ruled that defendant political repression. The Inter-American Court Lumintang bore both direct and indirect found that the disappearances were “carried out responsibility as a commander for the abuses in a systematic manner.” suffered by plaintiffs. The judge found that Many of these abuses have been Lumintang had direct responsibility for attributed to a notorious security unit known as “planning, ordering, and directing acts carried Battalion 3-16. According to the report of Leo out by subordinates to terrorize and displace the Valladares titled “The Facts Speak for
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Themselves,” the death squad engaged in a Velásquez and father of plaintiff Hector Ricardo “systematic program of disappearances and Velásquez, in 1981; and disappeared the brother political murder” in the early 1980s. The report of plaintiffs Jane Doe I and II. The complaint concludes that Battalion 3-16 was controlled at alleges that López Grijalba exercised command the highest levels of the Honduran military. responsibility over Battalion 3-16 and other Juan Evangelista López Grijalba, military and security forces that carried out acolonel in the Honduran army, served as the these abuses. Although Honduran courts have head of the National Investigations Directorate issued indictments and arrest warrants for a in Honduras in 1981 and as head of the number of commanders implicated in the abuses Department of Intelligence for the Armed of the early 1980’s, none have been convicted Forces General Staff in 1982. In those on human rights charges. positions, he exercised command over members Trial in this case is scheduled to begin of Battalion 3-16 and other military figures who between Dec. 1-14, 2003. carried out torture and disappearances. Pro bono counsel on the case include In April 2002, López Grijalba was taken Robert Kerrigan of Kerrigan, Estess, Rankin & into INS detention in Florida for immigration McLeod, and local counsel Stephen Rosenthal violations. The INS has asked an Immigration of Podhurst, Orseck, Josefsberg, Eaton, Judge to find López Grijalba removable based Meadow, Olin & Perwin. on false representations he made on immigration papers – in particular, that there 2. Abuse of Falun Gong were no warrants outstanding for his arrest – Practitioners in China and based on his role alleged responsibility for human rights abuses. CJA contacted the In 1999, the Chinese Government Honduran prosecutors, who forwarded one of declared a ban on the practice and support of the original arrest warrants to CJA. The judge Falun Gong, a spiritual movement which has cited the warrant as crucial to his decision to gained a broad base of support in China and deny bond. CJA has also been in contact with internationally. The government claims that Leo Valladares and has provided INS useful Falun Gong is an “evil cult” responsible for a information from several Honduran human variety of crimes and social ills. A crackdown rights organizations and the National Security by Chinese authorities against Falun Gong Archives. practitioners has been marked by severe human In July, CJA filed a civil lawsuit against rights abuses: tens of thousands of practitioners López Grijalba on behalf of six Hondurans, have been detained, and torture of practitioners alleging his involvement in and command is widespread. Hundreds of Falun Gong responsibility for torture, disappearance and followers have died in police custody. extrajudicial killing. The case, Reyes v. In February, Beijing Mayor Liu Qi Grijalba, No. 02-22046-Civ-Lenard, was filed visited San Francisco en route to the Salt Lake in Miami in the U.S. District Court for the City Olympics, and was served with a lawsuit Southern District of Florida. The complaint brought by CJA on behalf of six practitioners of alleges that members of Battalion 3-16 and Falun Gong. The case, titled Doe v. Liu Qi, No. other figures acting in coordination with the C02-0672 CW EC, was filed in the U.S. District battalion kidnapped and brutally tortured Court for the Northern District of California. plaintiffs Oscar and Gloria Reyes in 1982; The suit charges Liu with responsibility for abducted, tortured and disappeared Manfredo torture; cruel, inhuman or degrading treatment; Velásquez, the brother of plaintiff Zenaida arbitrary detention; crimes against humanity;
62 INTERNATIONAL CIVIL LIBERTIES REPORT and severe interference with freedom of religion Department has been, and continues to be, or belief. The case is the first to present a claim openly critical of Chinese persecution of Falun for violations of the right to freedom of religion Gong practitioners. or belief. CJA expects a ruling on these issues Two plaintiffs, Jane Doe I and II, are soon. Chinese citizens who were forced to flee to the United States as a result of the persecution they D. Website on Universal Jurisdiction suffered. They both allege that they were arbitrarily detained, interrogated and tortured by CJA, together with Redress Trust based Beijing police. The non-Chinese plaintiffs were in London, launched the first phase of a website detained without charge at a peaceful that is viewed by activists and lawyers alike as a demonstration and beaten by the Beijing police key resource in sharing information needed to before being deported from the country. The bring human rights abusers to justice around the complaint alleges that Liu authorized the abuses world. See www.uj-info.org. The website is suffered by the plaintiffs and that he exercised designed to provide resources needed to help superior responsibility over the Beijing police lawyers, judicial officials, human rights and security forces that carried them out. advocates and survivors around the world apply Liu Qi failed to make an appearance and “universal jurisdiction”. That docrtine of CJA moved for a default judgment. The international law holds that some crimes are so magistrate judge assigned to the case, Hon. universally condemned that courts anywhere Edward Chen, formerly a staff attorney with the may hear cases against the perpetrators ACLU of Northern California, asked for (assuming the courts may exercise personal briefing on several key issues, including jurisdiction). The project idea was generated at whether Liu is entitled to sovereign immunity a meeting of international human rights and whether the act of state doctrine renders the organizations, with which we continue to work case nonjusticiable. The State Department filed in close collaboration. We are now developing a a statement of interest suggesting that the user-friendly, web-based central resource for all Foreign Sovereign Immunities Act (FSIA) available information on universal jurisdiction, provides immunity to sitting officials of a including legislation and cases, latest foreign government and that the case is developments on advocacy and law reform nonjusticiable because it will interfere with initiatives, and an up-to-date directory of foreign policy. CJA has responded, citing Ninth universal jurisdiction advocates and experts. Circuit decisions holding that officials For further information about the above responsible for violations of customary cases, including the decisions and key international law act outside the scope of their pleadings, please visit the website of the Center authority and are not entitled to sovereign for Justice & Accountability: www.cja.org. immunity under the FSIA, and that liability under the ATCA and TVPA is not limited to former officials. CJA also noted that the act of state doctrine can only be invoked for acts acknowledged as official government acts, and that China does not acknowledge abuses against Falun Gong practitioners as official policy. Further, CJA argued that the case will not disrupt foreign affairs since the State
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10. The Krebs Case, the Inter-American files too early, he risks rejection on exhaustion Commission on Human Rights, and grounds. If a petitioner files too late, he may be U.S. Death Penalty Litigation executed before the Commission reaches the merits of the case. By: David Sloss* This brief essay is divided into three parts. The first part provides background In recent years, the Inter-American information on the IACHR’s death penalty Commission on Human Rights (IACHR, or jurisprudence and the Krebs case. The second Commission) has developed a body of part summarizes the major substantive jurisprudence on capital punishment that is very arguments that we advanced in the Krebs favorable for capital defendants. Unfortunately, petition. The third part discusses the exhaustion death row prisoners in the United States who issue in Krebs, and offers some tentative might wish to petition the IACHR for relief suggestions about how future petitioners might confront a procedural dilemma. The navigate the procedural dilemma that confronts Commission’s Rules of Procedure require U.S. death penalty petitioners. petitioners to exhaust domestic remedies before submitting petitions to the Commission.1 By the I. Background time a prisoner has exhausted domestic remedies, though, it may be too late for the The IACHR’s Death Penalty Commission to intervene. In fact, since 1996 Jurisprudence – The IACHR applies “a there have been nine cases in which the United heightened level of scrutiny in deciding capital States executed a death row prisoner within punishment cases.” IACHR, Report No. 52/01, days or weeks after the Commission requested Garza v. United States, ¶ 70. This heightened “precautionary measures” in an effort to delay a level of scrutiny is justified by the fact that the scheduled execution.2 right to life is the “supreme right of the human In June 2002, we filed a petition with being,” and the necessary prerequisite for the the IACHR on behalf of Rex Allan Krebs, a enjoyment of all other rights. Accordingly, the death row prisoner in California.3 Mr. Krebs Commission “considers that it has an obligation was sentenced to death on May 11, 2001. As of to ensure that any deprivation of life that an this writing, there has been neither state OAS member state proposes to perpetrate appellate review nor federal habeas review of through the death penalty complies strictly with his case. Although Mr. Krebs has clearly not the requirements of the applicable inter- exhausted domestic remedies, we invoked one American human rights instruments.” Id., ¶ 70. of the exceptions in the Commission’s Rules in The Commission applies a heightened scrutiny an effort to circumvent the exhaustion test in all death penalty cases, regardless of requirement. The Commission deemed the whether the state concerned is a party to the petition inadmissible because Mr. Krebs had not American Convention on Human Rights. Thus, yet exhausted his domestic remedies. Thus, the in deciding death penalty cases involving states, Krebs case illustrates the dilemma confronting like the United States, that are not parties to the U.S. death penalty petitioners. If a petitioner American Convention, the Commission borrows liberally from principles articulated in death penalty cases involving states that are parties to the Convention.4 * David Sloss is an Associate Professor of The Commission’s restrictive approach Law at Washington Law School in St. Louis, to the death penalty finds support in the Missouri.
64 INTERNATIONAL CIVIL LIBERTIES REPORT jurisprudence of the Inter-American Court of Krebs’ Covenant-based defense. Human Rights. The Court has stated that, In August 2001, three months after the although the American Convention does not jury rendered its death sentence, officials abolish the death penalty, “the Convention notified Mr. Krebs’ trial attorney that he should imposes restrictions designed to delimit strictly expect a five year delay before the State would its application and scope, in order to . . . bring appoint counsel for Mr. Krebs’ initial appeal. about [the] gradual disappearance” of the death Since Mr. Krebs cannot afford to hire his own penalty. Inter-American Court of Human attorney, he expects to spend five years on Rights, Restrictions to the Death Penalty (Arts. California’s death row, waiting for the State to 4(2) and 4(4) of the American Convention on appoint an attorney to represent him in his Human Rights), Advisory Opinion OC-3/83, ¶ initial appeal. After the State appoints an 57, September 8, 1983, Inter-Am. Ct. H.R. (Ser. attorney for his initial appeal, Mr. Krebs can A) No. 3 (1983). Moreover, the Court has reasonably anticipate that approximately ten established three types of limitations that apply more years of legal proceedings will be required to OAS member states that have not abolished before he has exhausted the remedies available the death penalty. First, the imposition of under U.S. domestic law. capital punishment “is subject to certain procedural requirements whose compliance II. Substantive Arguments Presented to must be strictly observed and reviewed.” the Commission Second, the application of the death penalty is limited to the most serious crimes. Third, This part summarizes the major “certain considerations involving the person of substantive arguments that we presented to the the defendant, which may bar the imposition or Commission on behalf of Mr. Krebs. application of the death penalty, must be taken into account.” Id., ¶ 55. The Right to an Individualized Sentencing Proceeding – The Commission has Domestic Proceedings in the Krebs previously held that Articles 4, 5 and 8 of the Case – On April 2, 2001, a jury convened by the American Convention “require individualized Superior Court of the State of California found sentencing in implementing the death penalty.” Rex Allan Krebs guilty of two murders. On IACHR, Report No. 38/00, Baptiste v. Grenada, May 11, 2001, the same jury determined that ¶ 106. Specifically, the individual circumstances Mr. Krebs should be sentenced to death for his of an individual offender, including the crimes. Before the trial even commenced, Mr. character and record of the offender and Krebs challenged the California death penalty subjective factors that might have influenced the statute on the grounds that it is inconsistent with offender’s conduct “must be taken into account U.S. treaty obligations under the International by a court in determining whether the death Covenant on Civil and Political Rights (the penalty can and should be imposed.” Id., ¶ 105. Covenant). The trial court refused to address The same principle applies with equal force to the merits of Mr. Krebs’ international human the parallel provisions of the American rights defense. Mr. Krebs appealed that Declaration, including the right to life under decision to an intermediate appellate court and Article I, the right to a fair trial under Article to the California Supreme Court. He even filed XVIII, the right to humane treatment under a petition for certiorari with the U.S. Supreme Article XXV, and the right to due process under Court. No domestic court in the United States Article XXVI. See IACHR, Report No. 52/01, was prepared to address the merits of Mr. Garza v. United States, ¶ 89 (the American
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Convention “may be considered an authoritative judge rejected the challenge on the grounds that expression of the fundamental principles set California does not require jurors to consider forth in the American Declaration”). this type of information as mitigating evidence. During the sentencing phase of a capital By refusing to exclude from the jury murder trial, California’s death penalty statute prospective jurors who professed their permits the introduction of mitigating evidence unwillingness to consider mitigating evidence pertaining to the individual circumstances of an pertaining to the character and record of the individual offender. CAL. PENAL CODE § 190.3. offender, California violated Mr. Krebs’ right to At Mr. Krebs’ trial, the defense introduced an individualized sentencing hearing under substantial mitigating evidence, including Articles I, XVIII, XXV and XXVI of the evidence of horrific childhood abuse. Although Declaration. the jury was permitted to hear this evidence, the jury was not required to take this evidence into The Right to Life – The Commission account, because the relevant statute is has established that Article I of the American exceptionally vague with respect to mitigating Declaration requires States to limit the death factors, and because the statute gives the jury penalty to crimes of “exceptional gravity” discretion to disregard any such evidence it prescribed by preexisting laws. IACHR, Report deems irrelevant. No. 57/96, Andrews v. United States, ¶ 177. The During the voir dire process that Commission’s jurisprudence on this matter preceded Mr. Krebs’ criminal trial, his attorneys draws upon the opinions of other international challenged certain prospective jurors for cause human rights bodies and several national courts. on the grounds that they were unwilling to In particular, the Commission has suggested that consider mitigating evidence pertaining to the the crime of “murder” is insufficiently individual circumstances of the defendant. The “exceptional” to warrant imposition of the death court, however, rejected these challenges on the penalty, absent the presence of some grounds that California does not require jurors “aggravating factors.” IACHR, Report No. to consider such evidence. For example, prior 38/00, Baptiste v. Grenada, ¶¶ 103-104. to voir dire, juror # 187 answered “no” to the Although California law defines murder following written question: “Is there any type of broadly, its death penalty law, by its terms, does information regarding a defendant’s background not extend to all cases of murder. California law or character that would be important to you assigns to the sentencing authority the discretion when choosing between life without parole and to impose the death penalty only if the criminal death (e.g., work record, childhood abuse, brutal defendant is convicted of murder with one or parents, alcoholism, former good deeds, more of the enumerated “special illnesses, etc.)?” During voir dire, defense circumstances.” See CAL. PENAL CODE § counsel asked juror # 187: “If you’ve rendered 190.2(a)(1)-(21). The breadth of the “special the verdict . . . and you feel he’s guilty beyond a circumstances” categories, however, fails to reasonable doubt, are you willing at that point to narrow the class of death eligible offenses to consider what the judge may have called other crimes of exceptional gravity. The “special mitigation factors, which could be some of the circumstances” alleged by the state in Krebs things such as abuse, alcoholism, illness, or is illustrate the defects of California’s death that the type of information that you would not penalty scheme. be willing to consider?” The juror responded: In Krebs, the state alleged two “special “No, I wouldn’t consider that.” Defense circumstances” to warrant application of the counsel challenged juror # 187 for cause, but the death penalty: (1) the “felony murder” special
66 INTERNATIONAL CIVIL LIBERTIES REPORT circumstance; and (2) the “multiple murders” “implied malice” murder. In California law, special circumstance. First, the prosecution any unlawful killing of a human being with alleged that Mr. Krebs killed two persons in the “malice aforethought” is murder. CAL. PENAL course of committing the felonies of rape and CODE § 187. “Malice” may be express or kidnapping. These allegations, if proven beyond implied. “Express malice” murder requires an a reasonable doubt, render his crimes death- intent to kill, while “implied malice” murder eligible under California law, despite the fact requires only an intent to do some act, the that the evidence at petitioner’s trial natural consequences of which are dangerous to demonstrated that one of the charged murders human life. See, e.g., People v. Silva (2001), was unintentional. Under California law, any 106 Cal.Rptr.2d 93. Therefore, a defendant person who kills “in the commission of, or acting with implied malice is guilty of attempted commission of, or the immediate first-degree murder even if defendant lacks the flight after committing or attempting to intent to kill. CAL. PENAL CODE § 189; see also commit” any of twelve listed felonies is not People v. Diaz (1992), 11 Cal.Rptr.2d 353. only guilty of first degree murder but is also This broad definition of first-degree murder in automatically death-eligible, irrespective of the California law invalidates an otherwise defendant’s mental state. Moreover, the acceptable narrowing circumstance. In California felony murder rule is itself particular, the “multiple murders” special exceedingly broad. For example, the felony circumstance adequately limits the class of murder rule applies to the most common death-eligible offenses only if the defendant has felonies, including rape, robbery and burglary. committed two or more intentional killings. And, most importantly, the felony murder rule By failing to limit application of the applies to altogether accidental and death penalty to the “most serious crimes,” unforeseeable deaths. It is clear that the felony California violated Mr. Krebs’ right to life murder “special circumstance” fails to limit under Article I of the Declaration. application of the death penalty to crimes of exceptional gravity. The Right to a Judicial Remedy – Second, the prosecution alleged the Prior to commencement of his trial, Mr. Krebs “multiple murders” special circumstance. That moved to preclude application of the death is, the state argued that the death penalty was penalty on the grounds that imposition of capital warranted in Krebs because the defendant had punishment would violate his right under article committed multiple murders. We acknowledge 6 of the International Covenant on Civil and that the “multiple murders” factor generally Political Rights “not to be arbitrarily deprived of serves to limit application of the death penalty his life.” In response, the prosecution argued to crimes of exceptional gravity. Indeed, the that the court need not address the merits of Mr. Commission’s jurisprudence supports this Krebs’ Covenant-based defense because the argument.5 However, California’s broad Covenant was not binding on the State of definition of first-degree murder renders the California. The court agreed with the “multiple murders” special circumstance prosecution and refused to address the merits of unacceptably broad. As previously discussed, Mr. Krebs’ Covenant defense. The California one of the murders in this case was Superior Court’s refusal to reach the merits of unintentional. The state could nevertheless Mr. Krebs’ human rights defense violated his classify this killing as a “first degree murder” right to a judicial remedy under Articles XVIII, under either of two theories: felony murder (the XXIV and XXVI of the American Declaration. deficiencies of which are analyzed above) or Article XVIII of the American
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Declaration promises that “the courts will contrary view – that Article XXIV permits protect [an individual] from acts of authority states to decide claims without regard to the that, to his prejudice, violate any fundamental merits – is patently absurd. constitutional rights.” The explicit duty for The Commission’s decision in courts to protect individuals from acts that Carranza v. Argentina supports the view that violate their fundamental rights requires, at a Article XXIV requires a decision on the merits. minimum, that courts prevent threatened In Carranza, the petitioner was a lower court violations whenever they have the power to do judge in the Superior Court of Justice of the so. Mr. Krebs explicitly requested the Province of Chubut. IACHR, Report No. 30/97, California Superior Court to protect him from a Carranza v. Argentina. He sought the capital sentence that would violate his right “nullification of a decree issued by the previous under the Covenant “not to be arbitrarily military government of Argentina that had deprived of his life.” Although the California ordered his removal” from the bench. Id. The Superior Court clearly had the power to protect Argentine domestic court refused to address the Mr. Krebs from the impending human rights merits of petitioner’s claim, ruling that his claim violation, it refused to do so. The court’s raised a non-justiciable political question. The refusal to protect Mr. Krebs from the arbitrary Commission held that the Argentine court’s deprivation of life constituted a violation of the failure to decide the merits of petitioner’s claim United States’ obligation under Article XVIII of violated Article 25 of the Convention, because the Declaration to “protect him from acts of Article 25 requires that “the intervening body authority that, to his prejudice, violate any must reach a reasoned conclusion on the fundamental constitutional rights.” claim’s merits, establishing the appropriateness Article XXVI of the American or inappropriateness of the legal claim that Declaration provides: “Every person accused of precisely gives rise to the judicial recourse.” Id. an offense has the right . . . to be tried by courts ¶ 71. previously established in accordance with pre- The Krebs case is indistinguishable existing laws.” The United States ratified the from Carranza. In Krebs, as in Carranza, the Covenant in 1992. Upon ratification, the domestic court refused to decide the merits of Covenant became the “Law of the Land” under petitioner’s allegation. The Argentine court in the Supremacy Clause. Thus, in May 2000, Carranza invoked the political question doctrine when Mr. Krebs raised a Covenant-based to justify its refusal to decide the merits of the defense before the California trial court, Article claim. In Krebs, the California Superior Court 6 of the Covenant was a “pre-existing law” invoked the doctrine of non-self-executing within the meaning of Article XXVI of the treaties to justify its refusal to decide the merits Declaration. The California court’s refusal to of petitioner’s defense. As one distinguished apply Article 6 to Mr. Krebs’ case violated his commentator has noted, “the self- right under Article XXVI “to be tried . . . in executing/non-self-executing distinction [in the accordance with pre-existing laws.” treaty context] has come to serve the functions Article XXIV of the American that are served in the statutory and constitutional Declaration states: Every person has the right to contexts” by the political question doctrine.6 submit respectful petitions . . . and the right to Granted, the Commission decided obtain a prompt decision thereon. The Carranza on the basis of the American individual right under Article XXIV to obtain a Convention, whereas the Krebs petition arises prompt decision necessarily entails a right to under the Declaration. Even so, the Declaration obtain a prompt decision on the merits. The and Convention, in their Preambles, protect the
68 INTERNATIONAL CIVIL LIBERTIES REPORT same essential rights because “the essential “When there has not existed effective access to rights of man are not derived from one’s being a remedies and there has been a delay in the national of a certain state, but are based upon application of justice, the requirement of attributes of the human personality.” The previous exhaustion of domestic remedies Convention, per Carranza, requires the court to cannot prevent a case of alleged human rights “reach a reasoned conclusion on the claim’s violations from being heard by an international merits.”7 Since the Declaration protects the forum such as the Commission.” IACHR, same essential rights as the Convention, it Report No. 10/96, Case 10.636 (Admissibility), follows that the Declaration also requires the Guatemala, ¶ 44. In this case, Mr. Krebs’ court to reach a reasoned decision on the merits. meaningful access to the courts is subject to an In Krebs, the California Superior Court’s refusal “unwarranted delay.” Due to his indigence, Mr. to reach a reasoned decision on the merits of Krebs is unable to afford legal counsel. Mr. Krebs’ human rights defense violated California has informed Mr. Krebs that it will Article XXIV of the Declaration. provide him appellate counsel, but there is currently a five-year delay in appointing III. Exhaustion of Domestic Remedies counsel for the initial appeal in capital cases. This delay, according to the state, is caused by Although Mr. Krebs has not exhausted administrative complications arising from all available domestic remedies, we argued that budgetary constraints. This extraordinary delay his petition was admissible because his in the appointment of counsel constitutes an meaningful access to those remedies is subject “unwarranted delay in rendering a final to an “unwarranted delay.” judgment.” The issue of exhaustion of domestic In addition, this delay in the remedies is governed by Article 31 of the appointment of counsel prejudices Mr. Krebs’ Commission’s Rules of Procedure. Article rights under the Declaration. The extended 31(1) of the Rules provides: “In order to decide interruption in the appellate process will on the admissibility of a matter, the exacerbate the considerable delays associated Commission shall verify whether the remedies with judicial review in capital cases. Since of the domestic legal system have been pursued reinstating the death penalty in 1978, California and exhausted in accordance with the generally has executed eleven persons; they served an recognized principles of international law.” average of thirteen years on death row.8 Article 31(2)(c) provides that the exhaustion Following the jurisprudence of other requirement shall not apply when “there has international human rights bodies, the been unwarranted delay in rendering a final Commission has recognized that such delays in judgment under the aforementioned remedies.” final judgment violate the human rights of death We argued that the unwarranted delay exception row inmates. IACHR, Report No. 57/96, recognized in Article 31(2)(c) applied to the Andrews v. United States, ¶¶ 46-49. The Krebs case. Commission’s jurisprudence on this issue Under California and U.S. law, Mr. provides additional evidence that the delay in Krebs has the right to challenge his conviction this case is “unwarranted.” and sentence through both direct, appellate The Commission, however, summarily proceedings and post-conviction, habeas corpus rejected these arguments, dismissing the petition proceedings. Of course, these remedies are for failure to exhaust domestic remedies. In “adequate” and “available” only insofar as an effect, the petition invited the Commission to individual has meaningful access to the courts. reconsider the scope of the “unwarranted delay”
69 INTERNATIONAL CIVIL LIBERTIES REPORT exception in death penalty cases. If the an effective remedy. That is, federal habeas Commission had agreed with our interpretation review is futile due to the constraints imposed of the unwarranted delay exception, it would on collateral review of state convictions by the have empowered the Commission to intervene Antiterrorism and Effective Death Penalty Act in many death penalty cases at a relatively early (AEDPA) and U.S. Supreme Court doctrine. stage of the proceedings. Recall that eleventh- Procedural bars and highly deferential standards hour requests for “precautionary measures” are of review frequently preclude meaningful often ineffective because the victim is executed review of the merits in federal habeas review of before the Commission has an opportunity to state capital convictions. address the merits of the case. Our view is that early intervention might increase the salience of Commission jurisprudence in death penalty cases, increasing the likelihood that domestic courts would incorporate international human rights law into their reasoning. In Krebs, for example, the Commission had an opportunity to issue a ruling on the merits in time for Mr. Krebs to invoke this ruling in his appeal and subsequent habeas petition. Although the Commission rejected our interpretation of the delay exception, the general thrust of our approach is, in our view, sound. The question is where might the line be drawn, and what strategies might defense counsel employ to secure a timely Commission ruling on the merits. Two strategies merit further exploration. First, petitioners might explore the limits of the “unwarranted delay” exception in death penalty cases. This line of argument has tremendous promise, particularly since the Commission has recognized a variant of the “death row phenomenon” claim. Indeed, the decision in Krebs may turn more on the fact that the delay was prospective (and hence speculative) than it does on the stage of the proceedings. Perhaps five years hence, the Krebs case itself would be decided differently. Second, petitioners might file with the Commission immediately after a decision by the state supreme court on direct review (and after denial of certiorari by the U.S. Supreme Court).9 The argument would be that the exhaustion requirement does not apply to federal habeas review because federal habeas petitions are not
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Endnotes 18 See IACHR, Report No. 52/01, Garza v. United States, ¶ 95 (suggesting that the “most serious 1 See Rules of Procedure of the Inter-American crimes” requirement is satisfied where defendant was Commission on Hu man R ights, art. 31 , available at convicted of three murders comm itted as part of a www.cidh.org/. continuing criminal enterprise). Mr. Garza’s case was, of course, significantly different from Krebs. 2 Richard Steven Zeitvogel (executed on Garza was accused of three intentional murders, each December 11, 1996, five days after IACHR of which was committed as part of an illegal drug enterprise supervised by Garza. In that case, the requested precautionary measures); Allen J. government proved that Garza ordered the execution- Bannister (executed on October 23, 1997, eight style killings in furtherance of a highly organized, days after IACHR requested precautionary extremely violent criminal conspiracy. measures); Sean Sellers (executed on February 4, 1999, six days after IACHR requested 6 See Carlos M . Vazques, The Four Doctrines of precautionary measures); Joseph Stanley Self-Executing Treaties, 89 Am. J. Int’l L. 695, Faulder (executed on June 17, 1999, nine days 711-12 (1995). after IACHR requested precautionary 29 measures); David Leisure (executed on See IACHR, Report No. 30/97, Carranza v. September 1, 1999, five days after IACHR Argentina,¶ 71. requested precautionary measures); Douglas 32 Californ ia Departmen t of Corrections, C alifornia Christopher Thomas (executed on January 10, Execu tions Since 1978, available at 2000, four days after IACHR requested www .cdc.state.ca.us/issues/capital. precautionary measures); Shaka Sankofa (executed on June 22, 2000, following three 34 There is some precedent for this approach. In the separate Commission requests for precautionary case of Michael Domingues, the Commission measures); Miguel Angel Flores (executed on requested precautionary measures on May 26, 2000, November 9, 2000, two weeks after IACHR just six months after the U.S. Supreme Court denied requested precautionary measures); James certiorari o n direct review. See Domingues v. Wilson Chambers (executed on November 15, Nevada, 528 U.S. 963 (Nov. 1, 1999) (denying 2000, five days after IACHR requested certiorari). In the case of Victor Saldano, the Commission requested precautionary measures on precautionary measures). March 13, 2000, almost three months before the U.S. Supreme Court granted certiorari on direct review 3 Mr. William McLennan, a defense attorney who and vacated the death sentence. See Saldano v. represented Mr. Krebs in his trial before the Texas, 530 U.S. 1212 (2000). California Superior Court, joined us as co-petitioner before the Commission.
6 Under Article 19 of its Statute, the Commission has the pow er to act on petitions alleging human rights violations by states parties to the American Convention. See Statute of the Inter-American Commission on Hu man R ights, art. 19 , available at www.cidh.org/. Article 20 empowers the Commission to examine communications pertaining to alleged human rights violations by member states of the Organization of American States that are not parties to the Convention. See id., art. 20.
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11. The Inter-American Human Rights the Elimination of All Forms of Discrimination System: Activities from Late 2000 Against Persons with Disabilities, which through October 2002 acquired more than enough ratifications for entry into force on September 14, 2001. (Comm. By: Richard J. Wilson and Jan Perlin* AR 21, 954).
General Introduction I. Actions of the Inter-American Court of Human Rights This article continues our analysis of the activities of the two principal human rights A. Peru’s Return to the System, organs of the Organization of American States and Decisions Dealing with (OAS): the Inter-American Court of Human Peru Rights (the Court), and the Inter-American Commission on Human Rights (the [Readers interested in these developments Commission). See Richard J. Wilson and Jan should consult the full version of this article.] Perlin, The Inter-American Human Rights System: Activities During 1999 through October 2000, 16 AM. U. INT’L L. REV. 315 (2001). B. Decisions in Other Almost all of the information contained in this Contentious Cases on the article comes from the published annual reports Merits of the Commission and Court for the relevant periods, plus additional posted information on In the past, the Court has traditionally published reports and decisions found on the considered contentious cases in three procedural web sites for both entities. As in our previous stages: admissibility (called preliminary coverage of the work of these bodies, our objections by the Court), merits and reparations. intention is not to provide an exhaustive catalog At each procedural stage, the parties submitted of all activity during the relevant time period. written pleadings and made oral arguments. As Our intent here is to provide readers, a result of changes to their Rules of Procedure particularly non-Spanish speaking human rights in 2000, the Court now permits full participation lawyers and general readers, with a sense of the of both the Commission and representatives of highlights and directions of the Commission and the victims in all stages of the proceedings, Court. although victims still do not have standing to The single most significant system-wide take a case to the Court; only the Commission development in 2001 and 2002 was the entry or states may take such action. The decisions into force of the Inter-American Convention on below are those contentious cases that survived decisions on admissibility and resulted in a judgment by the Court. In a new procedural development, the Court sometimes decided both * Professor Wilson is a professor of law and is the Director of the International H uman Rights the merits and reparations in a single decision, Clinic at A merican Univ ersity Law School. Ms. thus obviating the traditional third procedural Perlin is an attorney/consultant working on justice step. Those decisions are noted here, while reform and hu man rights. The full version of this traditional, third-stage reparations decisions are article will be publish ed in the American University discussed below in Section I, D. International Law Review in 2003. The full version of this article is also available on the AC LU w ebsite (www.aclu.org)
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1. Bamaca-Velasquez This case was one of a number of cases Case (Guatemala) (Merits and Reparations) -- in which Guatemala recognized its international The victim in this case was a guerrilla responsibility. As it turns out, the government’s combatant, captured during battle, tortured and statement was limited to a general then murdered by the military. The search for understanding that the government hoped to Efraín Bámaca involved Guatemala’s judiciary, reach friendly settlements. However, that their Human Rights Ombudsman’s Office, the recognition did not include the concession of the Guatemalan Historical Clarification facts as alleged by the Commission. The Commission, (hereafter, Truth Commission), government seemed to prefer to let the historical the United Nations Human Rights Verification truth to be established by Guatemalan national Mission in Guatemala, all three branches of the courts, despite the fact that they had been United States Government, and the Inter- manifestly ineffective for the previous seven American human rights system, not to mention years during which domestic proceedings had the efforts of non-governmental organizations, been pending, and the eight years since his the press, and independent film-makers. disappearance. This argument is akin to that of Though his remains were never recovered, this the former Minister of Defense who, in 1995, case had provoked an international response declined to allow the State prosecutor access to well before the Court’s judgment was issued in an army barracks to conduct an exhumation November 2000. Judgment of November 25, pursuant to credible information that Bámaca 2000. was buried there, asserting that jurisdiction had The attention was due to the efforts by been transferred to the Truth Commission. his widow, Jennifer Harbury, a Texas attorney (para. 89) who had met Efraín Bámaca while he was living The Court proceeded to hear the merits clandestinely in the Guatemalan countryside, to of the case because of the continuing existence find him after his capture. The pressure she of a factual dispute. The Commission alleged exercised on the U.S. government led to the that the victim was captured during a battle exposure of CIA practices that used known between guerrilla forces and the Guatemalan human rights violators, suspected of being military, in March 1992, and that he was held in complicit in the death of U.S. citizens, as paid captivity, tortured and eventually killed. The informants. Her efforts generated a record as a whole presents a chilling and congressional intelligence oversight board detailed account of the counter-insurgency investigation of CIA information-gathering tactics used by the Guatemalan military, practices. She fought for and achieved the including the use of violence and intimidation to declassification of official U.S. Government frustrate judicial investigations and judgments. documents, as well as an acknowledgment by The testimony is corroborated by both the the U.S. Government that it knew Bamaca had Recuperation of Historical Memory Report of been held in captivity for a time before being the Archbishop's human rights office and that of executed. That perseverance also led to the first the Guatemalan Truth Commission, issued in inspection by civilian authorities of all the 1998 and 1999, respectively, and admitted to the military installations in Guatemala. The record. inspections were carried out in a single day in In resolution of the factual dispute, 1994 without prior official notice, primarily as a where the State essentially argued that the symbolic gesture in the search for her missing practice of using captured guerrilla members as husband. intelligence sources was entirely voluntary, and that the existence of prisoners of war was an
73 INTERNATIONAL CIVIL LIBERTIES REPORT exceptional circumstance unique to this case, victim, the degree to which the family member (para. 125) the Court found, on both witnessed the facts around the disappearance, circumstantial and direct evidence, that the the family member’s involvement in attempts to Guatemalan military had systematically obtain information about the fate of their engaged in a practice of forced disappearances relative, and the State response to those efforts. of members of the guerrilla forces by, (para. 163) Making special mention of the “detaining them clandestinely without advising efforts expended by Jennifer Harbury to find her the competent, independent and impartial husband, the consistent obstacles created by the judicial authority, physically and mentally State, and the anguish generated by the torturing them in order to obtain information ignorance of his whereabouts, the Court found and, eventually, killing them.” (para. 132). that both she, Bámaca’s father and his siblings Given the fact that Bámaca was held were victims of an Article 5 violation.(para 165- clandestinely for at least four months by the 6) military after his capture and prior to his death, The Court also found violations of the the Court also found a violation of Article 7(2) right to life, to a fair trial, judicial protection, (illegal detention as a violation of personal and of Articles 1,2, 6 and 8 of the Inter- liberty). (paras. 143-4). American Convention To Prevent and Punish Rebutting the State’s factual assertions Torture. It rejected a claim under Article 3 again, the Court found that both Bámaca and his (right to juridical personality), noting the family members were victims of violations of absence, in the Inter-American Convention on the right to humane treatment. The State had Forced Disappearance of Persons (1994), of any argued that Bámaca did not have a close reference to juridical personality as a relationship with his family members due to the characteristic of that violation. The Court did nearly 17 years that he was separated from his not deem it to be an element of the right to life family before his death. The Court rejected that either. The right to truth was deemed to be assertion, and accepted the Commission’s subsumed in the right to “obtain clarification of explanations that his absence was entirely due to the facts relating to the violations and considerations of safety for his family, who corresponding responsibilities from the would have been targeted due to his competent State organs, through the involvement with the guerrillas, had he investigation and prosecution established in communicated with them. In its analysis, the Articles 8 and 25 of the Convention.” (para. Court points to the novelty of direct testimonial 201) evidence concerning the treatment of a Finally, the Court once again took up disappeared person while in captivity, and finds the issue of the applicability of international an Article 5(2) (torture) violation and an Article humanitarian law norms and treaties to its 5(1) (right to respect for physical, mental and decisions. Both the State and the Commission moral integrity) against his family members, as agreed that the Court could use the Geneva victims in their own right. Conventions, and the provisions of Common The test for finding inhumane treatment Article 3, to interpret obligations under the with regard to next of kin is based on recent American Convention. The Commission jurisprudence of the European Court of Human alleged that Article 29 permits the interpretation Rights formulated in two cases against Turkey.1 of rights under the Convention to avoid (fn. 110) It requires an analysis of the intimacy diminishing rights guaranteed by other of the family relationship generally, and international conventions to which Guatemala is between individual family members and the a party. The Court’s findings are worth
74 INTERNATIONAL CIVIL LIBERTIES REPORT reiterating here: “The Court finds that it has defenselessness of victims and their relatives.” been proved that . . . an internal conflict was (para 211). taking place in Guatemala ... As has previously The contribution of the Bamaca been stated . . . , instead of exonerating the State Velasquez Case to the scheme of reparations can from its obligations to respect and guarantee be found in the creative proffer of evidence by human rights, this fact obliged it to act in the Commission, which paints a vivid picture of accordance with such obligations. Therefore, the suffering caused to the victim and his and as established in Article 3 common to the family. Reparations, Judgment of February 22, Geneva Conventions of August 12, 1949, 2001. Although not qualified as expert confronted with an internal armed conflict, the witnesses, a Guatemalan anthropologist and a State should grant those persons who are not Guatemalan Mayan-indigenous leader and ex- participating directly in the hostilities or who congresswoman testified in support of the have been placed hors de combat for whatever reparations claim. An expert psychologist reason, humane treatment, without any specializing in trans-cultural evaluations and unfavorable conditions. In particular, treatment of trauma also testified. The three international humanitarian law prohibits witnesses together provided the basis for attempts against the life and personal integrity determining the consequences of the victim’s of those mentioned above, at any place and manner of death and how his life might have time.” (para. 207) . . . . been, had he survived. The witnesses “Although the Court lacks competence substantiated two claims: first, concerning lost to declare that a State is internationally wages, that had Efraín Bámaca survived the responsible for the violation of international signing of the Peace Accords, he would have treaties that do not grant it such competence, it been gainfully employed as a political or can observe that certain acts or omissions that community leader on behalf of a reconstituted violate human rights, pursuant to the treaties URNG; and second, that as the eldest son in a that they do have competence to apply, also Mayan-Mam indigenous family, his loss and the violate other international instruments for the inability of the family to perform a ritual burial protection of the individual, such as the 1949 of his remains has caused a severe rupture of Geneva Conventions and, in particular, common family cohesion and corresponding suffering. Article 3. (para. 208, emphasis added)” The psychologist explained that in Mam As a consequence, the Court ruled that belief and custom, the deceased members of the there was a violation of Article 1(1) (obligation family remain present in the emotional to respect and ensure rights protected under the “constellation” of the surviving family’s ties. Convention), for the general impunity with That expert testified to the importance of regard to these violations. As in Paniagua recovering his mortal remains, which, in the Morales, the Court defined impunity as, “the words of the family, lies in the “ability to show total lack of investigation, prosecution, capture, respect for Efraín, to have him close and to trial and conviction of those responsible for return him or take him to live with his violations of the rights protected by the ancestors,” and for the new generations to be American Convention, in view of the fact that able to share and learn what his life was as is the the State has the obligation to use all the legal Mam tradition. Whether spiritual or means at its disposal to combat that situation, metaphorical, this lack of closure is experienced since impunity fosters chronic recidivism of by the family and generates continuing anguish human rights violations and total and anxiety for them.
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The Court reiterated its rule that there is Harbury also was awarded lost wages, in no need to prove non-material damages in the consideration of having suspended her case of a victim’s parents. Those emotional ties employment to dedicate herself to the search for and resulting suffering from a family member’s her husband from 1992-1997, and for related loss are considered a given, and are not broken health costs; for example, the illness provoked by the years that they were separated. by her hunger strike directed at learning the Moreover, the Court ruled, given “the whereabouts of her husband. In all, money particularities of the Mam ethnicity of the damages were awarded in the amount of Mayan culture, the loss of the emotional and $475,000.00. economic support of the oldest son signified In its discussion of other reparations, great suffering for the Bámaca-Velasquez the Court reiterates the parameters of the right nuclear family.” Compensation for moral to truth as accruing to both the individual and damages in the amount of $25,000 were society as a whole. The decision to frame awarded to Bámaca’s father for his suffering at reparations in this manner is not gratuitous. The the knowledge at what the victim had suffered, State had previously asserted it made several and for the anguish and vulnerability provoked efforts to further the process of identification of by the non-protection of the State. Bámaca’s the remains of the dead and disappeared after father also received a proportional share of the the civil war. The inclusion of the Bamaca case $100,000 award to the victim himself, for his in the report of the Guatemalan Historical son’s suffering prior to his death. The victim’s Clarification Commission was cited as a form of siblings received awards of $5,000 to $20,000 reparation. The State also invoked the creation each under this rubric, and his wife, $80,000. In of a National Program to Search for the justifying the award, the court pointed to the Disappeared, a National Program of extraordinary efforts of Jennifer Harbury to Exhumations, and the proposal for a locate her spouse or his remains and the Commission on Peace and Harmony as consistent obstacles and obfuscation by the demonstrations of the government’s will to State in resisting that search.2 “promote and spur investigations to clarify the Lost wages were awarded to the victim cases analyzed by the Court.” Bamaca, and his surviving wife. The Court refrained Reparations Judgment, para. 71. Despite these from awarding lost wages for the five-year assertions, to date the only success in period from his capture to the signing of the identifying victims or calling to account those Peace Accords in Guatemala, since arguably he responsible for the nearly 200,000 dead and would have been employed as a guerrilla disappeared during the civil war have been commander without any remuneration. made by the victims, their families or non- However, from the signing of the Peace governmental organizations. In fact, many of Accords, and for a reasonable period of his life those individuals and organizations making expectancy, the Court found that he would have efforts to clarify past violations have been been working. With no clear criteria for settling subject to break-ins, harassment, threats and on a projection for wages, the Court awarded assaults over the past two years, none of which $100,000 in equity. In the distribution of this have resulted in arrests or convictions. award, the Court noted that had he lived, The Bámaca Case is emblematic of the Bámaca would have contributed a portion of human rights and humanitarian law violations this income to his parents and siblings, so that committed during the war, where the State the award is divided evenly among his surviving systematically violated the right to life of wife, his father and his siblings. Jennifer civilians and defenseless combatants. The Truth
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Commission’s recommendations, based on a on December 4, 1990, followed by a 24-hour finding that 93% of the victims were killed or work stoppage the next day. The protest march, disappeared by State agents, have yet to be which was intended to focus attention to the complied with by the State. unions’ demands, was carried out peacefully Against this background, the Court with the participation of thousands of workers. ordered the Guatemalan State to adopt all (Judgment, at 88(c)) legislative or other measures necessary However, in what seems to have been a measures to adapt the Guatemalan legal bizarre coincidence, the march coincided with framework to international human rights and the escape on the same date by colonel Eduardo humanitarian law norms and to fully implement Herrera-Hassan from a Panamanian island those norms on the domestic level. The Court prison, followed by his subsequent forced also ordered the State to find Bámaca’s remains, takeover of police buildings with other dissident to conduct the exhumation in the presence of his members of the military. The union group’s widow and family, and to hand his remains over work stoppage, which had begun as scheduled to his family. on December 5th, was suspended during that day to prevent its being associated with the activities 2. Baena Ricardo et al. of colonel Herrera-Hassan. No essential public Case (270 Workers v. Panama) (Merits and services were interrupted during the work Reparations) --The Court’s decision on merits stoppage. The colonel was arrested by U.S. and reparations in Baena Ricardo et al. Case military forces while attempting to mount a (270 Workers v. Panama), Judgment of march on the national legislature on the morning February 2, 2001, stands out for at least two of December 5th, and he was turned over to the important reasons. First, the decision deals with Panamanian government that same day. During the largest number of individual victims before the critical period in question, the President of the Court in a single case – 270 state employees Panama, Guillermo Endara, never issued a who were fired for their participation in a labor formal state of emergency or suspension of rights demonstration. While the Court has dealt guarantees. with mass violations in the past, this is the first The next day, December 6, 1990, the such case to arise in a context in which the government, apparently believing there was a victims were not the subject of violent state link between the labor action and the dissident crimes or widespread civil unrest. Second, the military movement, called for the legislature to decision deals primarily with worker’s rights, an draft a bill dismissing all of the public area traditionally associated with economic, employees who had participated in the social and cultural human rights, as opposed to “organization, convocation or implementation the Court’s traditional focus on gross violations of the work stoppage of December 5, 1990” and civil and political rights. because of a belief that the workers “sought to The dispute here arose out of a labor subvert the democratic constitutional order and dispute between the Panamanian government to replace it with a military regime.” (Judgment, and state employees, represented through the at 88(i)). Most of the workers suspected of a Coordinating Organization of State Enterprise role in the work stoppage were fired before any Workers Unions. In November of 1990, the legislation was adopted, based on lists government rejected a petition from the developed by managers in the various state Coordinating Organization raising concerns and agencies in which they were employed. demands of the union collective, after which the The Panamanian Legislative Assembly Organization called for a public protest march adopted Law 25, designed to address the
77 INTERNATIONAL CIVIL LIBERTIES REPORT government’s concerns, on December 14, 1990. opportunity to apply the Protocol of San The law explicitly provided for retroactive Salvador, the Additional Protocol to the effect as of December 4, 1990, and the law was American Convention on Human Rights in the designed to lapse in December of 1991. Prior to Area of Economic, Social and Cultural Rights. the adoption of Law 25, existing labor law Panama became a party to the Protocol in 1993, provisions intended to provide due process in but the Protocol did not enter into force until dismissal proceedings protected most of the 1999, well after the events in question here. (AR affected state workers. However, the procedure 2001, 944) Moreover, the treaty has limited under Law 25 was summary and not subject to direct enforceability through the Commission appeal. The law permitted the executive’s and Court.3 Cabinet Council to fire any public servant who The Commission argued, however, that participated in actions “that attempt against Panama had signed the Protocol in 1988, thus democracy and the constitutional order,” and the incurring an international obligation not to act in 270 workers who were the subject of this action violation of the object and purpose of the treaty. were all formally found to have violated Law 25 The government of Panama argued the non- on January 23, 1991. (para. 88(q)) No fired retroactivity of treaties. (Judgment, at paras. 95- worker was ever charged by the government 98) The Court concluded, somewhat cryptically with complicity or participation in the illicit and without further elaboration or analysis, that actions of colonel Herrera-Hassan. Most of the the treaty could not be applied retroactively, but 270 workers involved in the complaint that Panama’s signature to the treaty subsequently filed all available administrative nonetheless created a duty “to abstain from appeals, including an action of committing any act in opposition to the unconstitutionality of Law 25 itself. The objective and purpose of the Protocol of San Supreme Court of Panama subsequently found Salvador, even before its entry into force.” the law to be unconstitutional, but held that its (Judgment, at para. 99). The Court did not declaration of unconstitutionality only struck further articulate the nature of that duty. down the abstract legal rule, thus leaving the The Court then went on to find concrete firings of the workers unresolved by violations of Articles 9 (Ex Post Facto Laws), the Panamanian courts. Having exhausted all 8(1) and (2) (Judicial Guarantees), 25 (Judicial available domestic remedies, the 270 workers Protection), 16 (Freedom of Association) and sought relief in the Inter-American human rights the general obligations provided for in Articles system. 1(1) and 2 of the Convention. It rejected the The Court settled two preliminary argument that Panama violated the workers’ matters before addressing the specific violations right to assembly, protected in Article 15 of the of the Convention. First, it rejected Panama’s Convention, concluding that the march took argument that Law 25 had arisen in the context place without interruptions or restrictions, that of a serious national emergency that justified its the workers’ dismissal was based only on the implementation. No formal state of emergency work stoppage and not the march, nor that any had been declared by Panama, and any such other proof was offered of interference with the emergency would have been subject to the right to “peaceful assembly, without arms,” provisions of Article 27 of the Convention, protected in Article 15. (148-150) which governs procedures and conditions for The Court’s findings as to violations of suspension of guarantees in states of emergency. Article 9, on ex post facto application of laws, (paras. 89-94). Second, the facts and issues in would seem patently self-evident in the context this case presented the Court with its first of the blatant violations perpetrated in the
78 INTERNATIONAL CIVIL LIBERTIES REPORT adoption and implementation of Law 25, were criminal offense,” invokes the presumption of this situation not so common throughout the innocence in such proceedings, and details the world. The clarity of the violation here rights of the “accused.” For its analytical base, it hopefully provides a solid framework for relies on decisions of the European Court of analysis of such post hoc attempts by Human Rights that extend similar provisions of governments to punish dissident behavior in the the European Convention on Human Rights to future. The same seems true with the violations “disciplinary proceedings.” (para. 128-129) The of the right to freedom of association, protected Court apparently concludes that the flawed by Article 16, which the Court properly read as administrative procedures for dismissal of the “the ability to constitute labour union 270 workers are just such proceedings, thus organizations, and to set into motion their entitling the workers to the explicit guarantees internal structure, activities and action of section 8(2), as well as the general programme, without any intervention by the protections of section 8(1). (paras. 131-134). public authorities that could limit or impair the The Court’s decision reached the issue exercise of the respective right.” So long as each of reparations, pursuant to Article 63(2) of the person is free to join or not, labor unions have a Convention, in addition to the merits. The Court basic right “to constitute a group for the pursuit found the violations discussed above and of a lawful goal.” (para. 156) In reaching its ordered the following restitution: (1) that the conclusions on the right to association, the 270 workers, or their heirs if they are deceased, Court drew heavily from a previous decision be paid indemnification of back wages “and from the International Labor Organization (ILO) other labour rights” under domestic law; (2) that Labour Union Freedom Committee, case N/ the workers be reinstated or provided with 1569, which dealt with the same facts, and to comparable employment alternatives, or where which no objection was raised by the State. that is not possible, provided with an indemnity (paras. 162-165, 171). for termination of employment; (3) that the The Court’s application of the fair trial workers each be paid $3,000 in moral damages; guarantees of Article 8, however, was more (4) and that the group of 270 workers be paid adventurous. The Court noted that the due $100,000 as reimbursement for expenses in process provisions of Article 8(1) explicitly seeking protection of their rights, and their apply not only in criminal proceedings but to representatives be paid $20,000 for the cost of “the determination of . . . rights and obligations internal and international proceedings. of a civil, labor, fiscal, or any other nature.” The Court, however, quoted that language to 3. The Last Temptation of conclude that “the range of due process Christ Case (Chile) (Merits and Reparations) guarantees established in section 2 of Article 8 -- This case deals with Chile’s prior censorship of the Convention is applied to the realms to of the film of the same name. Judgment of which reference is made in section 1 of the same February 5, 2001. The Commission alleged Article . . .”, and that “the individual has the violations of freedom of thought, expression, right to the due process as construed under the religion and conscience, under Articles 12 and terms of Articles 8(1) and 8(2) in both, [sic] 13 of the Convention. The complaint points to penal matters, as in all of these other domains.” the Chilean Supreme Court’s affirmation of an (para. 125). absolute ban on the film “The Last Temptation The Court does not discuss or of Christ” in 1997, based on application of a distinguish the explicit language of section 2 of 1974 law and a 1980 Constitutional provision, Article 8, which refers to persons “accused of a both part of the Pinochet legacy.
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The case originally was taken to the (freedom of expression). The Court reminded Commission by an association of Chilean Chile that human rights violations are not lawyers in representation of some of its attributable only to one or another branch of members. Amici briefs to the Court from other government, but that they accrue to the State as interested parties supported their position, and a whole. The judgment pointed to the fact that various legal experts testified on both sides, the Constitutional provision, Article 19 Section including the recently named Commissioner, 12 of the Chilean Constitution, establishes prior José Zalaquett. Expert testimony went to the censorship for films and, consequently, qualifies issue of how the Court should deal with a the actions of both the Executive and the constitutional provision and its implementing Judiciary, thereby generating State legislation, both of which effectively violated responsibility. (para. 72) Convention guarantees. Some experts argued On the other hand, the Court found that a domestic constitutional reform would be there was no violation of the right to freedom of necessary, while others asserted that a religion, because the censorship of The Last legislative reform would suffice, and still others Temptation of Christ “did not deprive or urged that the law was sufficient to protect diminish any person’s right to keep, change, rights, but that the Supreme Court had profess or promote their religion or beliefs with misapplied it. These positions reflected absolute freedom.” (para. 79) divergent views on the effect and interpretation The State was ordered to modify its of international human rights law in domestic legal framework to remove prior censorship legal systems. provisions, which violate the obligation to A significant component of this debate respect and guarantee the right to freedom of centered on the Chilean Supreme Court’s expression and thought under the Convention, determination of the parameters of the (Articles 1(1) and 2) and to permit the showing constitutional right to “honor” and the of the film. The judgment was deemed to be relationship of that term to religious freedom, to sufficient reparation, and costs were awarded, in the detriment of both the right to choose one’s equity, in the amount of $4,290.00. religion, or lack thereof, and to the freedom of expression. The facts of the case reflect the 4. Mayagna (Sumo) Awas heated social debate around this issue in Chile, Tingni Community v. Nicaragua (Merits and with some litigants at the national level bringing Reparations) -- The indigenous peoples of the actions by or on behalf of Jesus Christ, the Awas Tingni community live in the richly Catholic Church and in their own names. forested Atlantic coastal region of Nicaragua, an Despite approval of a Constitutional reform by area that they have occupied with other tribal one chamber of the Congress, at the time the peoples since antiquity. Their traditional Court heard the case, final congressional action communal lands were not formally demarcated, was still pending. which only became important when the The State did not contest the facts, but Nicaraguan government agreed to a massive refused to accept international responsibility by logging concession to a Korean lumber alleging that the current government had company, Sol de Caribe S.A., or SOLCARSA. introduced a constitutional reform that would Having unsuccessfully exhausted all available remedy the situation domestically. The Court domestic remedies to prevent the concession concluded that a system of prior censorship from operation, the community sought the existed in Chile and that its application in the protection of the Commission and Court. The present case resulted in a violation of Article 13 case of the Mayagna (Sumo) Awas Tingni
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Community v. Nicaragua, Judgment of August the time of filing until a decision was reached. 31, 2001, is the first substantive decision of the (para. 133) Neither of these unjustified periods Court in the area of indigenous rights. of delay respect the “principle of a reasonable The Court found violations of Articles term” protected by the Convention. (para. 134) 25 (Judicial Protection) and 21 (Property). The State incurs additional violations of Articles Article 25 provides for “simple and prompt 1(1) and 2 of the Convention for its failure to recourse . . . to a competent court or tribunal for designate and implement an effective remedy in protection of . . . fundamental rights” in its domestic norms. (paras. 135-139) domestic law or the Convention. The Court Article 21 of the Convention protects analyzed the issue from two perspectives, first the right to “property,” without further as to the land titling procedure in Nicaragua and definition. The Court synthesized a definition of second as to the effectiveness of the relevant property from its other decisions: “those domestic remedy, amparo, to meet the material things which can be possessed, as well requirements of Article 25. (para. 115) The as any right which may be part of a person’s Court first reviewed the domestic norms of patrimony; that concept includes all moveables Nicaragua and concluded that there are and immovables, corporeal and incorporeal protections under that law for indigenous elements and any other intangible object communal real property. (para. 116-122) capable of having value.” (para. 144) Applying However, the procedure for titling of such lands that definition to the evolving interpretation of is not clearly regulated, (para. 123) and the the Convention, the Court concluded that Court accepted the conclusions of the expert “article 21 of the Convention protects the right witnesses that “there is a general lack of to property in a sense that includes, among knowledge, an uncertainty as to what must be others, the rights of members of the indigenous done and to whom should a request for communities within the framework of demarcation and titling be submitted.” (para. communal property.” (para. 148) Thus, the 124) Even the State’s own evidence showed members of the Awas Tingni community have “legal ambiguities” in the titling of indigenous “a communal property right to the lands they communal lands. (para. 125) Finally, since currently inhabit, without detriment to the rights 1990, no land title deeds have been issued to of other indigenous communities.” That right, in indigenous communities. (para. 126) This led turn, gave the community the right to have their the Court to conclude that “there is no effective lands delimited, and during that process, to procedure in Nicaragua for delimitation, prevent the State itself, or third parties acting demarcation, and titling of indigenous with State acquiescence, from actions which communal lands.” (para. 127) would “affect the existence, value, use or As to the effectiveness of the amparo enjoyment” of the area where the community remedy, the Court noted its previous lives. (para. 153) jurisprudence recognizing that the remedy, The Court limited its decision to these being simple and brief, meets the required two violations, although the Commission had characteristics for effectiveness. (para. 131) alleged the breach of several other Convention Moreover, the Nicaraguan amparo remedy itself provisions in its final pleadings.4 (para. 156) provides for conclusion within 45 days. In the The Court “dismissed” the violation of those instant case, two separate actions were filed, one rights, however, because there were no grounds which initially took eight days, but the review of for the violations set out in the Commission’s which took more almost a year and a half. (para. brief. (para. 157) 132) The second action took nearly a year from
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The Court reached the issue of held that it was barred from direct application of reparations in this decision as well, applying international humanitarian law. As to the Article 63 of the Convention. It required that the relatives of those who had been killed in that State create an effective mechanism for attack, the Court found violations of the right to demarcation and titling of indigenous communal judicial guarantees and judicial protection, property, and that the State carry out that under Articles 8(1) and 25(1) of the Convention. process within 15 months, “with full (paras. 49-66) The case, however, had three participation by the Community and taking into interesting aspects, from an analytical account its customary law, values, customs and perspective. mores.” The State is further barred from First, the Court was deeply divided over interference with the property right pending its the legal effects of a domestic decision by full establishment. (para. 164) The Court found Colombia’s Administrative Law Court of the that the Commission had not proven material Council of State, the domestic forum of final damages, but found that the community had appeal in administrative matters. That court had suffered “immaterial” (non-pecuniary) damages upheld a lower court ruling finding State that require a State investment of $50,000 “in responsibility for the same incident as that works or services of collective interest for the before the Court. The Inter-American Court benefit of the Awas Tingni Community.” It also found that by virtue of the fact that the issue had ordered payment of an additional $30,000 to the been “definitively settled under domestic law,” community and its representatives for expenses State responsibility “became res judicata,” and costs. Judge Montiel Argüello, the ad hoc because the Court did not need to provide judge appointed for this case by Nicaragua, “approval” or “confirmation” of the domestic dissented on most issues. tribunal’s conclusion. (paras. 33-34) This In September of 2002, the Court conclusion as to the effects of a decision by a requested provisional measures of protection domestic administrative tribunal seems to fly in under Article 63(2) of the Convention. It the face of the consistent previous practice of ordered the State to prevent any further the Court to demand that individual perpetrators exploitation of natural resources within the of human rights violations be investigated, communal lands of the Awas Tingni prosecuted and punished, and not merely that Community, that the Community be permitted the State accept responsibility for its wrongs. to participate in the planning and Second, the reasoning of the judgment implementation of any measures affecting its on the issue of legal effects of the domestic lands, and that the State investigate and sanction decision deeply fractured the Court, provoking any of the wrongs alleged in the request for responses from five of the judges in two provisional measures. separate opinions. The gist of those opinions was that the Court could and should have found 5. Las Palmeras Case separate and distinct violations of international (Colombia)(Merits and Reparations) – The law by the State, particularly as to Article 4, decision of the Court in the Las Palmeras Case, which protects the right to life. The separate Judgment of December 6, 2001, seemed opinions are not characterized as dissents; such straightforward on the facts but provoked an is seldom the case in the Court’s contentious odd set of opinions on the merits. The case jurisprudence. However, the separate opinions involved an attack on a rural schoolhouse in Las take strong issue with the judgment itself, Palmeras, Colombia by military and police leaving one to wonder what constitutes a forces. In its decision on admissibility, the Court “majority” view of the law when five of seven
82 INTERNATIONAL CIVIL LIBERTIES REPORT judges write to distance themselves from the continue to apply the Convention to all cases Court’s “per curium” decision. pending before those bodies that arose when the Third, in its extended discussion of the Convention was in effect. factual evidence, the Court rejected the The major issue in the preliminary Commission’s assertion that one of the victims objections stage, common to all three cases, was had been summarily executed. The Commission the validity of a reservation formulated by based that claim on testimony from an Trinidad at the time of its acceptance of the internationally recognized forensic ballistics jurisdiction of the Court. The reservation stated expert suggested by the Court. (para. 45) The that the Court would only take jurisdiction to Court concluded, with no discussion, that the the extent that it was consistent with the expert’s conclusion, though included in his Constitution of Trinidad. Because the report to the Court, was “not based on any Constitution of Trinidad permits the death reasoned logic, and therefore lacked any penalty, Trinidad attempted to invoke the evidentiary value.” (para. 46) Given the Court’s reservation as a bar to the Court’s exercise of generally solicitous consideration of evidence jurisdiction in the death penalty cases. under its rules and practice, this curt dismissal Alternatively, it argued that the Court would of expert findings is troubling, particularly still lack jurisdiction if it struck down the given the Court’s increased reliance on expert reservation as incompatible with the object and testimony in its contentious jurisprudence and purpose of the Convention, because the original the judges’ involvement in the selection of an declaration was conditioned on that reservation, expert they later criticize. The Court ordered the and the declaration itself would therefore be null case to proceed to the reparations stage. and void ab initio. The Court rejected both positions, relying on decisions in Peruvian cases 6. Hilaire, Constantine on the Court’s competence, holding that the and Benjamin et al. v. Trinidad and Tobago Court cannot be deprived of its jurisdiction by (Admissibility, Merits and Reparations) – unilateral acts of the State once that jurisdiction During 2001 and 2002, the Court decided both has been accepted. (paras. 81-83, Hilaire). the admissibility and merits of a collection of Trinidad’s reservation, the Court held, death penalty cases from Trinidad and Tobago would “totally subordinate the application of the (Trinidad). The Court first considered Convention to the domestic law of Trinidad and Trinidad’s preliminary objections in three Tobago, subject to the disposition of the separate cases, the Hilaire Case, the Benjamin domestic courts.” (para. 88) The Court also et al. Case, and the Constantine et al. Case. rejected the government’s alternative argument, The cases were later consolidated for that if the Court found the reservation disposition on merits and reparations under the incompatible with the Convention, the State’s name Hilaire, Constantine and Benjamin et al. intention was not to accept the jurisdiction of v. Trinidad and Tobago. Judgment of June 21, the Court at all. (para. 91) It asserted that the 2002 The cases present complex issues on treaty State’s argument “would allow it to decide the application and treaty reservations, all arising scope of its acceptance of the contentious from aggressive efforts by Trinidad to defend its jurisdiction of the Court in every specific case, death penalty regime. Because of its desire to to the detriment of the exercise of the speed up executions, Trinidad withdrew its contentious function of the Court.” Such ratification of the Convention on May 26, 1999, discretionary power would deprive the Court, in one year after its announced intention to do so.5 the exercise of its contentious jurisdiction, of The Commission and Court nonetheless “all efficacy.” (para. 91-92) The Court reached
83 INTERNATIONAL CIVIL LIBERTIES REPORT similar decisions on preliminary objections in The Court also found serious procedural the Constantine et al. and Benjamin et al. cases. flaws in Trinidad’s death penalty law. The Court The merits decision in Hilaire et al., by addressed what it called the due process “bundle virtue of its consolidation with other cases, dealt of rights and guarantees” that take on particular with a total of 32 defendants on death row in importance when life is at stake because of the Trinidad, all of whom appear as victims before “exceptionally serious and irreparable nature of the Court. (para. 3) At the outset of its opinion, the death penalty.” (para. 148). Thus, it found the Court noted that it had issued provisional violations of Articles 7(5) and 8(1) of the measures to prevent execution of the alleged Convention due to the failure of Trinidad’s victims, but that on June 4, 1999, Trinidad had domestic law to protect the right to trial within a executed Joey Ramiah, one of the individuals reasonable time; violations of Articles 8 and 25 protected by provisional measures. (paras. 26- due to the lack of access to adequate legal 33) Later in its decision, the Court found that assistance for the presentation of constitutional Ramiah’s execution violated the right to life in motions on review; and the facial invalidity of a Article 4, and also found a separate violation of provision of Trinidad’s constitution that bars Article 4 in the State’s “disregard of a direct domestic constitutional challenge to certain order of the Court” directing the issuance of aspects of the death penalty. (para. 152). provisional measures to preserve Ramiah’s life. Finally, the Court found that the failure to (para. 198-200) provide for a “fair and transparent procedure” The heart of the opinion, however, goes for pursuit of amnesty, pardon or commutation to both substantive and procedural questions on of death sentences violated Articles 4(6) and the mandatory application of the death penalty Article 8’s due process guarantees. (para. 186- by Trinidad. The Court held that mandatory 188) death sentences for all persons convicted of Article 5 of the Convention protects murder in Trinidad violates the Convention’s against cruel, inhuman or degrading punishment Article 4(1) protection against “arbitrary” or treatment. The Court concluded that the imposition of the death penalty, (para. 103) as shocking prison conditions in which death well as Article 4(2), which limits death sentenced inmates live constitute a violation of sentences to “the most serious crimes.” (para. that article. (para. 169) Again, the Court relied 106) Uniform death sentences for all murder on jurisprudence from the European Court of convictions, without recognition that there are Human Rights and the Human Rights varying degrees of seriousness for the crime of Committee in reaching its conclusions. murder, does not sufficiently limit the The Court went on to order reparations application of capital punishment in a treaty in its merits judgment. It barred Trinidad from “designed to bring about its gradual application of the death penalty law that disappearance.” (para. 99, quoting from OC- violated the Convention, and it ordered Trinidad 3/83) In reaching its conclusions, the Court to adopt graduated categories of murder. It cited decisions from the Human Rights ordered the retrial of all 31 individuals who had Committee and the Supreme Courts of India, petitioned the Commission for protection and South Africa and the United States. Because it barred, on grounds of equity, their resentencing found violations of Articles 1(1) and 2 along to death, even if they were again convicted. The with those of Article 4, the Court struck down Court ordered payment of $50,000 for the Trinidad’s death penalty law as facially support and education of Joey Ramiah’s son, violative of the Convention. (para. 116) and $10,000 to his mother. It directed Trinidad to bring its prison conditions into compliance
84 INTERNATIONAL CIVIL LIBERTIES REPORT with relevant international human rights norms. workers. The Court accepted the request, which Finally, the Court ordered $13,000 in expenses will become Advisory Opinion OC-18. for the representation of the victims in international proceedings before the Court. D. Decisions on Reparations Although three judges wrote separate opinions Only on various aspects of the judgment, none dissented from the Court’s conclusions. [Readers interested in these developments In September of 2002, the Court should consult the full version of this article.] rescinded orders for provisional measures in favor of two individuals who had been resentenced to manslaughter. In the same II. Actions of the Inter-American decision, James et al. Cases, Order of the Inter- Commission on Human Rights American Court of Human Rights of September 3, 2002, Provisional Measures, James et al. A. Introduction Cases, the Court continued provisional measures for another 39 individuals still under In May and June, 2001 amended Rules sentence of death in Trinidad. of Procedure came into effect for the Inter- American Commission and Court, respectively. They represent the culmination of a reform C. Advisory Opinions designed to streamline case processing, develop evidence more methodically, promote In a relatively short time period for the transparency, and provide for greater victim Court, it accepted a request from the participation in each stage of the proceedings. Commission for Advisory Opinion OC-17 on The new Commission Rules now contemplate March 30, 2001 and rendered its decision on more specific procedures for evidence August 28, 2002. The opinion, Legal Status and production, detail the stages of case processing, Human Rights of the Child, defines a “child” as provide for friendly settlement negotiations at person who have not yet reached his or her 18th any point in the process, and create a birthday. (para. 42) The opinion finds that presumption that all cases will be referred to the children are rights-holders themselves, and not Court if recommendations to the State go merely objects of the law, although different unheeded. treatment of minors and adults is not per se A resolution of the OAS has called for discriminatory. (para. 55) The opinion an increased budget for the Commission and the elaborates the meaning of the term “best Court, to respond to their increasing activities interests of the child” and discusses the duties of and responsibilities with regard to the protection families, society and the State in relation to of human rights, including providing greater children. (paras. 56-91) It delineates the rights access for individuals to the Inter-American of the child in judicial and administrative human rights system. The work of the proceedings. (paras. 92-136) The opinion, in Commission during the period under review short, provides a rich synthesis of the existing reflects this new focus. The volume of case international human rights protections of reports has increased and includes a number of children. older cases. Meanwhile, new cases are being In May of 2002, the government of more systematically processed under the new Mexico sought an advisory opinion on the rights procedural rules. of migrants in general, and particularly migrant
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The governments of Perú, and more in international law for the long-pending recently Mexico, have gone through regime and American Declaration on the Rights of policy changes, reflected in their new Indigenous Peoples.8 government’s openness to human rights Finally, the Commission continued its concerns. In general, moves towards focus on human rights in specific countries of democratic consolidation have generated the Americas, publishing its fifth report on significant changes in the legal systems of the Guatemala and its third report on Paraguay, both primarily non-English speaking countries in the in 2001. In both its 2000 and 2001 Annual system. Most are engaged in a reform of Reports, the Commission documented criminal procedure, provoking a new sensitivity developments on human rights in Colombia and to due process issues and their relationship to Cuba, and in the 2000 Annual Report, it human rights protections. Moreover, the new followed up on its own recommendations to the Rules of Procedure provide for the Commission governments of the Dominican Republic, to follow-up on its decisions and evaluate Paraguay and Peru. compliance. These changes should translate into This section begins with a review of more sophisticated analyses in the Commission cases on women’s rights and the death penalty and Court decisions of due process rights and during the period under review, followed by the right to a judicial remedy. human rights issues in the US following Several thematic reports will also September 11, 2001. Cases reflecting the provide a framework for the consideration of development of the human rights situation in newly admitted petitions on freedom of Colombia, Guatemala and Perú follow. Finally, expression, migrant rights, and the rights of the there is a brief discussion of other cases child. Reports on these themes have been presenting novel issues, followed by a short published or are forthcoming.6 In 2000 a Report preview of cases that have been admitted for the from the Office of the Special Rapporteur on Commission’s consideration in the future. Freedom of Expression was published, “… as a fundamental reference tool to guide the B. Cases Interpreting Women’s development of laws on freedom of expression Rights in the Inter-American and as a guide to the interpretation of Article 13 System of the American Convention on Human Rights.” (Annual Report, 2000, Volume III, para. 2). Governments often justify gender Pursuant to OAS resolutions in 2001, reports on distinctions based on cultural difference. In the the rights of all migrants and their families and case of Maria Eugenia Morales de Sierra v. on the situation of human rights defenders in the Guatemala, a former deputy ombudswoman and Americas are forthcoming. In 2001, the Guatemalan attorney, challenged articles of the Commission also created a Human Rights Guatemalan Civil Code as discriminatory and Defenders Functional Unit within the Executive violative of the right to family (Article 17) and Secretary’s office in Washington. (AR 2001, at to equal protection (Article 24). Guatemala 20, para. 36) defended cultural relativism poorly and failed to The Commission continued its strong win out. The Commission upheld a challenge in work in the area of indigenous rights as well. In support of the legal recognition of women’s late 2000, the Commission published a report on capacity to develop socially, economically and the situation of indigenous peoples in the politically in Guatemalan society. Americas.7 In March of 2001, it published a The report, issued in January 2001, comprehensive set of authorities and precedents references an earlier decision on related issues
86 INTERNATIONAL CIVIL LIBERTIES REPORT and notes that Guatemala complied with many of the Civil Code were applicable to her. Just as of the previous recommendations through the the State of Chile had argued before the Inter- enactment of legislative reforms. At the same American Court in The Last Temptation of time the Commission urged that the remaining Christ Case, discussed above, the Guatemala recommendations be fulfilled. Government communicated its acknowledgment The challenged provisions of of the inconsistency between the code Guatemalan law established distinctions based provisions and both national and international on gender restricting the ability of women to legal obligations, but stated that the executive represent the marital union, and giving almost was unable to contravene the determination of exclusive power to husbands for administering the nation’s highest court. marital property. Other provisions “confer[red] The Commission’s analysis employed upon the wife the special ‘right and obligation’ CEDAW’s definition of discrimination and to care for minor children and the home,” and pointed out that it was more complete than prior restricting married women’s right to “exercise a understandings of discriminatory behavior. The profession or maintain employment where it CEDAW definition includes, “any distinction, does not prejudice her role as a mother and exclusion or restriction made on the basis of sex home-maker.” (para. 2) In addition, a husband which has the effect or purpose of impairing or was permitted to prohibit his wife “from nullifying the recognition, enjoyment or exercise realizing activities outside the home, as long as by women, irrespective of their marital status, he provides for her and has justified reasons.” on the basis of equality of men and women, of (para. 2). Other provisions give primary human rights and fundamental freedoms in the responsibility to the husband for representing political, economic, social and cultural, civil or their children and administering their property, any other field.” (CEDAW, Article 1. Emphasis and permitted that “a woman, by virtue of her added) sex may be excused from exercising certain The movement in support of equality forms of guardianship”. (para. 2) for women has long recognized that many The Guatemalan Supreme Court upheld domestic laws purporting to protect women in these provisions, despite its recognition that the fact limit opportunities to act as full members of Convention on the Elimination of all Forms of society. CEDAW's discrimination definition Discrimination Against Women (CEDAW), takes that reality into account when it includes formed part of Guatemalan national law. The not only gender restrictions or exclusions, but judges held that the provisions appropriately all types of distinctions based on gender. The “provided for judicial certainty in the allocation Commission concluded that, “the overarching of roles within the marriage.” (para. 3, 34) effect of the challenged provisions is to deny The petitioner disputed those married women legal autonomy.” (para. 38) arguments, asserting that the relationship The report also notes that “the gender- between the objective sought and the means based distinctions under study have been upheld employed were disproportionate and, indeed, as a matter of domestic law essentially on the violated the rights to equal protection and basis of the need for certainty and juridical family under the Convention. The victim security, the need to protect the marital home claimed that although her husband had not and children, respect for traditional Guatemalan enforced any of the prerogatives the law values, and in certain cases, the need to protect afforded him, she was, nevertheless, adversely women in their capacity as wives and mothers.” affected. As a working mother, wife and the co- (para. 37) However, Guatemala’s owner of joint marital property, those provisions Constitutional Court, the Commission observed,
87 INTERNATIONAL CIVIL LIBERTIES REPORT had “made no attempt to probe the validity of women, the Commission asserted that it is the assertions or to weigh alternative positions, irrelevant if it is seen as an obligation or a and the Commission is not persuaded that the privilege. It is, nevertheless, discriminatory distinctions cited are even consistent with the based on conceptions of gender that presume aims articulated.” (para. 37) Thus, the women are inherently weak or incapable. (para. Commission found that the gender-based 81-82) distinctions were neither proportional nor Two other cases illustrating patterns of reasonably justifiable, resulting in a violation of discrimination against women reveal the petitioner’s rights under the Convention. prejudices associated with gender-based The Commission found violations of violence and the consequences they generate. Articles 1(1) (obligation to respect and ensure The first relates to domestic violence in Brazil. rights), 2 (obligation to enact legal protection The second involves the illegal detention, rape measures), 24 (equal protection) and 17(4) of and torture of three Tzeltal sisters by soldiers in the Convention, “read with reference to the the Mexican State of Chiapas. requirements Article 16(1)” of CEDAW. The In the case of Maria Da Penha Maia Commission also found that Article 11 (right to Fernandes v. Brazil, Report No. 54/01, Case privacy) rights were implicated because the 12.051 (April 16, 2001, the victim charged that code provisions unduly restricted the individual Brazil had, for years, condoned the domestic right to “pursue the development of one’s violence she suffered at the hands of her personality and aspirations, determine one’s husband. She was the victim of a 1983 murder identity, and define one’s personal attempt by her former husband which left her relationships.” (para. 46) The Commission paraplegic, with numerous additional medical noted that, “married women such as [the ailments. Her complaint is based on the failure petitioner] are continuously impeded by the fact to finalize any judgment against her ex-husband that the law does not recognize them as having 15 years after his near fatal shooting attack of legal status equivalent to that enjoyed by other her. Consequently, she alleged violations of citizens.” (para. 48) Articles 1(1), 8, 24 and 25 of the American Guatemala exchanged a series of Convention; Articles 3, 4 (a) to (g), 5 and 7 of communications with the Commission the Inter-American Convention on the purporting to demonstrate its compliance with Prevention, Punishment and Eradication of the Commission’s recommendations. (para. 57- Violence Against Women, (Belém do Pará 76) However, the Commission noted that some Convention); * Brazil ratified in 1992. and articles discriminatory provisions had not yet been of the American Declaration. The Commission found remedied, including the chapeau of one of the violations of Articles 1(1) (obligation to protect articles of the domestic legislation that refers rights), 8 (fair trial) and 25 (judicial remedy), and of Article 7 of the Belém do Pará Convention, insofar as “to the duty of the husband to protect and assist Article 7 obligates the State to act to protect the his wife within the marriage,” without imposing rights contemplated in Articles 3 and 4 (a) – (g) of a similar condition on the wife, and a provision that instrument. The Commission also concluded excusing women from guardianship that Articles II (right to equality) and X VII (right to responsibilities. (para. 79-80) The Commission recognition of juridical personality and civil rights) noted that the duty to protect and assist “is of the American Declaration were violated. consistent with the nature of the marital The Commission’s analysis focuses on relationship,” and it should not be implied as both the underlying act and the judicial being the sole duty of the husband. With regard proceedings, despite the fact that the assault to the special relief from guardianship duties for occurred in 1983, before Brazil was party to the
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Convention. The record reflects that the duties to prevent, punish and eradicate violence Brazilian justice authorities demonstrated a against women under the Belém do Pará patent reluctance to punish the petitioner’s Convention is based on an analysis of the facts husband for her attempted murder, despite more that discerns a “general pattern of negligence than sufficient evidence. In determining and lack of effective action by the State in admissibility, the Commission found that the prosecuting and convicting aggressors.” (para. obligations to protect rights under the 56) This finding is based on the circumstances American9 and Belém do Pará10 Conventions are relating to the assault on the petitioner, on of a continuous nature. Therefore, the national statistics concerning violence against violations persist in time, despite the fact that women, and on the State’s lethargic response to Brazil’s adherence to those Conventions occurs that violence. 12 The factual information well after the underlying acts. confirming a pattern of State tolerance of The victim was shot while she was violence against women also supports findings asleep. There was a history of previous violent of the violation of the equal protection provision assaults by her husband, and he had tried to get of the American Declaration and Convention. her to declare him beneficiary of a life insurance The Commission’s analysis corresponds here to policy one week before the shooting. He was a definition of domestic violence that includes proven to have lied on several occasions as to violence against women, “condoned by the state the circumstances of the assault, which he or its agents regardless of where it occurs.” (Art. asserted was perpetrated by thieves. There were 2 Belém do Pará Convention). witness statements implicating him in the The final recommendations refer to the crime.11 obligation of the State to provide a civil remedy A guilty verdict eight years after the to victims. A recommendation is also made to fact resulted in a 15-year sentence that was train justice-sector functionaries, and the public reduced to 10 years on appeal. The Commission as a whole, on how to respond to cases of noted that the eight-year delay alone in violence against women, and to establish more obtaining the first conviction constituted a fluid mechanisms for preventing, investigating, denial of Article 8 and 25 rights and Article 1(1) prosecuting and punishing such crimes. obligations. Three years later, the guilty verdict In the case of Ana, Beatriz and Cecilia was overturned based on a time-barred Gonzalez Perez v. Mexico, Report 53/01, Case challenge alleging faulty jury instructions. At 11.565 (April 4, 2001). The names used are his subsequent trial, in 1996, the defendant was pseudonyms., the victims, three Tzeltal again sentenced, this time to a 10-year and 6- indigenous women, were gang raped and month prison term. His appeal from that subjected to other torture by soldiers while conviction has been pending since April 1997, being illegally detained and questioned in a and so the conviction was not yet final when the language they did not speak13 at a military Commission decided the case. checkpoint in 1994. This assault occurred in the The petitioner asserted that the Mexican State of Chiapas, four months after the circumstances of this case, and the general armed rebellion by the Ejercito Zapatista de pattern of impunity in cases of domestic Liberacion Nacional began there. The military violence in Brazil, demonstrate the State’s courts definitively closed the investigation in systematic failure to take effective measures to 1996, citing a lack of evidence. Despite the prevent and punish this type of violence that influence of both racist and political disproportionately affects women. The perspectives in this case, it is included here in Commission’s finding that the State violated its the section on women rights for two reasons:
89 INTERNATIONAL CIVIL LIBERTIES REPORT first, because the Commission reiterates in clear gynecological examination for them.” (para 69) terms its analysis of rape as a form of torture; That request came a substantial time after the and, second, because the State’s response to the incident had occurred and in spite of the fact allegations demonstrates the kind of subtle bias that the first medical examination, conducted 20 that prevents rape from being understood for days after the incident, and qualified as in-depth what it is: the assertion of power through an act and professional by the Commission, had been of violence. ratified in the Mexican civilian courts. (para. 63) Despite a detailed report by a medical Furthermore, the report of the medical doctor showing physical evidence of the gang examination documented the fear and anguish rape and offering detailed testimony by the that these young women had already suffered victims, the State asserted that the “intention of upon experiencing a gynecological examination the petitioners [was] to mislead the for the first time, under these circumstances. Commission,” and denied that the events The government’s assertion that the victims alleged had ever occurred. The State claimed would have to submit to another such that military checkpoints for purposes of public examination was truly a second attempt to security were permitted under the Mexican victimize them. Constitution and that the accusations were an In this connection, the attitude of the offense to the honor of the armed forces. The military justice authorities, as represented by the State pointed to both the military court’s State, is notably preoccupied with the honor of investigation and the failure of the victims to re- the military and its mission. According to the submit to a gynecological examination by their Commission’s Report, “the State maintains that: designated experts as evidence of the falsity of ‘it is incomprehensible that accusations would the claim. In short, the State’s defense related be leveled against institutions that are in good essentially to its comparative estimation of the standing and enjoy a good reputation such as the character of the accusers and the accused. Mexican Army, without any evidence other than Much of the evidence presented by the rumors that merely create insecurity from a victims to the civilian justice authorities and legal standpoint and are a most shameful attack later transferred to the military courts is against the institutions responsible for National reproduced in the Commission’s report. The Security, which were moved to the conflict zone testimony gives compelling and detailed for the sole purpose of fulfilling their duty, that accounts of the entire incident, including the is, their constitutional mission of protecting the detention, gang rape and intimidation, including internal security of the Nation, within a system accusations that the three young victims were based on a rule of law and respect for human supporters of the insurgent indigenous group in rights such as exists in Mexico.” (fn. 14) the region. Furthermore, the testimony is The State based its insistence that the substantiated by a medical report of a charges were an attempt to impugn the honor of gynecological examination carried out the Mexican armed forces on the denials of the according to guidelines contained in the United accused and the statements of persons living in Nations Principles on the Effective Investigation the area where the checkpoint was located. and Documentation of Torture and Other Cruel, Those civilian declarations gave general Inhuman and Degrading Treatment. observations concerning the behavior of the The Commission concluded that the soldiers and asserted that they had never seen Public Prosecutor for Military Justice, members of the military mistreat girls, nor had “completely ignored the evidence submitted by they heard any rumors to that effect. If the victims and proceeded to order another allegations were truthful, the State argued, the
90 INTERNATIONAL CIVIL LIBERTIES REPORT victims would have no problems resubmitting to prohibited under international law. Moreover, a second medical exam. The report of the the Commissioners concluded that the rapes military authorities also ridiculed the committed in this case were acts of torture petitioners’ “alleged” attorney, also a woman, because the assault took place, “as part of an characterizing her behavior as “haughty and illegal interrogation conducted by military intimidating.” (para.66) officers in a zone of armed conflict, and [during Rather than conduct a serious which they] were accused of collaborating with investigation, the State used the case as a the EZLN.” (para. 51). Finally, we are staging ground for discrediting the EZLN and reminded that, “Perhaps more than the honour those the State suspected were their of the victim, it is the perceived honour of the sympathizers. At the same time, the State enemy that is targeted in the perpetration of ignored the evidence and the consequences of sexual violence against women; it is seen and what these three young women had suffered.14 often experienced as a means of humiliating the The Commission “establishe[d] that, as a result opposition. Sexual violence against women is of the humiliation create by this abuse, [as meant to demonstrate victory over the men of perceived by the community they lived in] the the other group who have failed to protect their Gonzalez Perez sisters and their mother had to women. It is a message of castration and flee their habitual residence and their emasculation. It is a battle of men fought over community.” (para. 42) the bodies of women.”17 On the issue of fair trial and judicial The Commission found violations of the remedy, the Commission determined that an petitioners’ rights under Article 5 (right to investigation and trial in the military justice humane treatment) and Article 11(2) (right to system of a case concerning criminal conduct privacy). The mother of the three victims was against civilians is inconsistent with a also found to have suffered inhumane treatment democratic rule of law, and reiterated its own because she had to “stand by helplessly and previous findings that “military courts do not witness the abuse of her three daughters by meet the requirements of independence and members of the Mexican Armed Forces and impartiality imposed under Article 8(1) of the then to experience, along with them, ostracism Convention.” (para. 81) It also reiterated by her community.” A violation of the rights of findings and recommendations of the United the child was also found with regard to the 16- Nations Special Rapporteur for Torture with year old victim. The Commission also regard to Mexico,15 asserting that the pattern of recognized violations of Articles 8 and 25 of the impunity for torture committed by the Mexican American Convention, and 6 and 8 of the military required that all alleged infractions Convention Against Torture, with regard to the involving personnel from that institution be failure to investigate, prosecute and punish the tried in civilian courts, even those arising in the perpetrators. Furthermore, the Commission discharge of their official duties. (para. 79) reiterated its recommendation to carry out “a The Commission went on to cite the complete, impartial and effective investigation Belém do Pará Convention, the Inter-American within the regular criminal courts in Mexico,” Convention to Prevent and Punish the Crime of and unequivocally declared that their Torture, the U.N. Special Rapporteur on recommendation would in no way be satisfied Violence Against Women,16 the decisions of the by re-opening a military investigation into the International Criminal Tribunal for the Former case, as Mexico had suggested in a Yugoslavia and its own jurisprudence to communication dated October, 2000. 18 reaffirm that rape is a form of violence
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C. Decisions on Capital Punishment and Related Issues
Cases involving the death penalty and related aspects of its administration assumed a high profile in the Commission’s contentious jurisprudence during 2001 and 2002, including its referral of the case against Trinidad and Tobago, Hilaire et al., to the Court, as discussed above. All of the capital punishment cases arose in the United States and four countries of the English-speaking Caribbean region: the Bahamas, Trinidad and Tobago, Jamaica and Grenada. In all, the Commission decided six cases on the merits,19 three cases on admissibility,20 and at least 26 reported and other new cases involving requests for the issuance of precautionary measures.21 This section explores some of the common and unique themes in those cases. All of the Commission’s decisions now share the common articulation of the “heightened scrutiny” standard for review of capital cases, which requires international human rights bodies to take a “restrictive approach” in its review of cases involving the imposition of the death penalty. (Edwards, 107; Knights, 57; Thomas, 90; Domingues, 38) The Caribbean decisions on the merits all share virtually identical issues and resolution on a set of issues common to all three countries. First, the cases all raise the question of the mandatory application of the death penalty and the absence of individualized sentencing which the Commission held, in each case, to constitute not only a violation of the right to life in Article 4 of the Convention, but also of Article 5 (protection against cruel, inhuman or degrading punishment or treatment) and Article 8 (right to a fair trial).22 (Knights, 78; Lamey, 143; Thomas, 108) Second, the cases shared conclusions as to the absence of an adequate system for the exercise of mercy in capital cases through pardon, commutation or amnesty, which
92 INTERNATIONAL CIVIL LIBERTIES REPORT violates the explicit terms of Article 4(6) of the declined to reach the issue of prolonged post- Convention. The Commission also rejected conviction detention in the Bahamas cases governments’ assertions that commutation (Edwards et al., at 225), nor did it address an powers exercised by the executive infused the allegation that Jamaica’s method of execution review of death sentences with a sufficient by hanging constitutes a violation of Article element of discretion to permit the initial 5(2) of the Convention. (Thomas, 136) automatic death sentence for murder. (Edwards, Flaws in the provision of counsel, which 168; Knights, 105; Lamey, 166; Thomas, 120) was available only through legal aid to legally Finally, all petitioners prevailed on the question indigent defendants in the cases under of the adequacy of the conditions of consideration, gave rise to a number of confinement on death row while awaiting violations. The unavailability of legal aid for execution, which were found to violate Article 5 constitutional motions played a part in two of of the Convention. (Edwards, 198; Knights, 129; the Caribbean decisions, giving rise to Lamey, 202; Thomas, 135) violations of Article 25. (Knights, 136; Lamey, The Commission’s jurisprudence has 225, 226) In Lamey, the Commission found that become increasingly symbiotic with that of undue delay in providing access to legal aid national reviewing courts in the death penalty gave rise to violations of Articles 8(2)(d) and area, at least as relates to the Caribbean. On (e). (Lamey, 215) On the other hand, in two March 11, 2002, Great Britain’s Privy Council cases, the Commission rejected the claims of roundly endorsed the analysis of the ineffective assistance of counsel. In Edwards et Commission in a series of decisions striking al., the petitioners raised issues about defense down the mandatory death penalty in Belize, counsel’s failure to raise claims of prejudicial Saint Lucia, and Saint Christopher and Nevis.23 publicity during trial, coerced confessions, In reaching its decision, the Privy Council, in inhumane treatment by the police and failure to addition to its strong reliance on the call a medical doctor to attest to the Commission, relied upon relevant jurisprudence mistreatment. The Commission concluded that from South Africa, the United States, India, those issues “are more appropriately left to the Canada, England, the Human Rights domestic courts.” (Edwards, para. 208-215) The Committee, and the European Court of Human issue of ineffective assistance of counsel for Rights.24 This reliance on international and failure to investigate viable defenses, raised in comparative sources contrasts sharply with that Lamey, gave rise to the only finding of no of the United States Supreme Court in its own violation by the Commission where the claim death penalty jurisprudence.25 had not been adequately preserved in the Delay in bringing the accused before a domestic legal system. (Lamey, 217) In two judge after arrest, and in the length of time from U.S. cases in which the petitions were found to arrest to trial gave rise to violations of Articles be admissible, claims of ineffective assistance 7(5) and 8(1) of the Convention in one of the of court-assigned counsel will be reviewed by Jamaican cases. (Lamey, 178, 188) In the the Commission in the merits stage. (Graham, Thomas case, the Commission also found a 58-59; Martinez-Villareal, 64) violation of the right to a fair trial, protected by One other Caribbean death penalty case Article 8 of the Convention, when the trial judge deserves mention. The Roodal decision on demonstrated bias in an instruction to the jury admissibility is the first published case against regarding his belief in the defendant’s guilt. Trinidad and Tobago since its denunciation of (Thomas, 138, 144) Due to its disposition of the the Convention. (see discussion above) As such, cases on other grounds, the Commission the petitioner’s lawyers grounded their claims
93 INTERNATIONAL CIVIL LIBERTIES REPORT on violations of the American Declaration rather requests to the government of the United States than the Convention. (para. 2) The Commission and the State of Texas for precautionary accepted jurisdiction of the case and agreed to measures (paras. 5-29), Mr. Sankofa was its admissibility based on the violations of the executed on June 22, 2000.26 The case is still Declaration, having reached a similar pending before the Commission on the merits. conclusion some time ago as to the United On October 22, 2002, the Commission States, also a non-State-party to the Convention decided the question of the legitimacy of the but still, like Trinidad, a member of the OAS. juvenile death penalty under international law in (para. 24) Nonetheless, the Commission added Michael Domingues v. United States. That case potential violations of the Convention for its had already undergone extensive domestic future consideration of the merits, given the fact consideration in the courts, culminating in the that some of the misconduct alleged arose denial of review by the United States Supreme before the effective date of Trinidad’s Court of a decision of the Nevada Supreme denunciation. (para. 25) Court that deeply divided over the question of The U.S. cases also presented some the application of the International Covenant on common themes. Two of the cases present Civil and Political Rights provisions prohibiting questions as to the application of the Vienna the execution of persons under 18 at the time of Convention on Consular Relations to foreign their alleged crimes, but upheld the conviction.27 nationals on death row in the United States. The Commission found that the imposition of Under that treaty, detaining officials are the death penalty on children under 18 at the required to promptly inform a detained foreign time of their conduct violates both customary national of the right to contact with their home international law and jus cogens norms. (para. country’s consulate, and, if the detainee so 84-85) To justify this conclusion, the requests, to promptly notify consular officials of Commission exhaustively reviewed the detention. In both of the cases pending international law and standards, as well as the before the Commission, the individual law and practice of nations. (para. 40-83) petitioners are Mexican nationals. (Martinez- Curiously, the United States, unlike its Villareal, 69; Suarez-Medina). In Mr. Suarez- engagement with other death penalty issues Medina’s case, his execution proceeded after the before the Commission, failed to express its issuance by the Commission of precautionary views at all in this litigation until after the measures on his behalf, thus giving rise to oral Commission had issued an initial report arguments before the Commission in its October unfavorable to the government. (para. 26, 89) 2002 regular session as to whether After that report was issued, the government precautionary measures issued by the apparently filed an extensive pleading urging Commission are legally binding, as a matter of the Commission to “withdraw” its report, international law. combined with “supplemental observations.” Another issue common to two cases (para. 90). The Commission rejected the before the Commission is that of the execution government’s assertions, explicitly finding that of juveniles who were below 18 at the time the the U.S. could not legitimately claim to be a alleged offense is committed. In its persistent objector to the norm barring the admissibility decision in Graham (Shaka execution of juveniles. (para. 85, 102) The issue Sankofa), the Commission signaled that it would of the validity of the juvenile death penalty again take up the question of the legitimacy of already has narrowly missed review by the U.S. the juvenile death penalty in international Supreme Court on two occasions in 2002, in human rights law. (para. 60) Despite repeated Patterson v. Texas 28 and Stanford v. Kentucky.29
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The question seems likely to reach the Supreme When it takes up the issues on the Court this term, and the potential influence of merits, the Commission will also grapple in the the Commission’s decision in Domingues Sankofa case with questions of violations of the cannot be overstated. rights to fair trial and due process (Articles One other issue common to two cases XVIII and XXVI of the Declaration) because before the Commission is not likely to be Mr. Sankofa was procedurally barred from reviewed by the U.S. Supreme Court. In producing strong evidence of his actual Graham and Martinez-Villareal, the innocence of the crimes of which he was Commission will again address the issue of the convicted. (para. 58-59). These same provisions “death row phenomenon,” whereby the will come into play in Martinez-Villareal, where petitioner alleges that the prolonged wait for the Commission will decide the effects of execution in death row conditions can itself mental illness amounting to incompetence to constitute cruel, infamous or unusual stand trial or to be executed. (para. 66-68) In punishment under Article XXVI of the both cases, the issues mentioned here are related Declaration. (Graham, para. 60, 65; Martinez closely to claims of ineffective assistance of Villareal, para. 70). That issue was again counsel, mentioned above. rejected by the United States Supreme Court in Finally, the Commission has increased the Fall 2002 term, over only one dissent, in a pressure on the all OAS countries to honor its case involving a Florida death row inmate who issuance of precautionary measures in all cases, has spent 27 years awaiting execution.30 but particularly in capital punishment cases In Garza v. United States, the where execution is imminent. It has expressed Commission found violations of Articles XVIII its displeasure with failure by the US (Right to a Fair Trial) and XXVI (Right to Due government to take precautionary measures in Process of Law) when the sentencing jury in stronger and stronger terms, including its stern Texas heard evidence of four unadjudicated rebuke to the United States in Garza, where it murders in Mexico. (para. 102-110) Although found that the government’s failure to honor the Commission recommended commutation, such requests “undermined” the Commission’s the government went ahead with Garza’s ability to investigate and “effectively deprives execution on June 19, 2001. The execution condemned prisoners of their right to petition in followed that of Timothy McVeigh by one the inter-American human rights system.” (para week, making it the second federal execution 66) In one hearing before the Commission at its after a delay in application of the federal death October 2002 regular session of meetings, the penalty for over 35 years. Despite the Commission heard arguments from the parties petitioner’s argument that federal inaction on in Suarez-Medina v. United States as to whether the death penalty over that long a time was a de the Commission’s precautionary measures had facto abolition of the death penalty, the binding legal effect in international law. In that Commission rejected that argument as a basis case, Mr. Suarez-Medina was executed in Texas for violation of Article I (Right to Life) of the after the issuance of repeated requests for Declaration. (para. 94-95). One Commissioner, precautionary measures to the U.S. government. Helio Bicudo from Brazil, expressed his view, This issue may take on increasing importance in here and in all subsequent death penalty cases of the United States in the wake of a decision in the Commission, that the death penalty had been the U.S. Supreme Court in October, 2002, in abolished through the evolution of the practice which two Justices dissented from denial of a of the Inter-American system. (e.g., Edwards, request for stay of execution grounded solely on Knights, Lamey and Thomas).
95 INTERNATIONAL CIVIL LIBERTIES REPORT the binding nature of the issuance of D. Actions on the U.S. Response precautionary measures by the Commission.31 to the Attacks of September 11, 2001
The Commission has responded in two distinct contexts to the actions of the United States government in the wake of the tragic events of September 11, 2001, when commercial aircraft commandeered by terrorists targeted the World Trade Center and the Pentagon, and thousands of civilians lost their lives. First, in its Annual Report for 2001, the Commission noted that the United States took “exceptional measures” after the tragic events of September 11, 2001. The Commission further concludes that although the U.S. is a party to the International Covenant on Civil and Political Rights, it “has not notified the UN Secretary General in accordance with Article 4 of the Covenant of any resort by it to emergency measures that might justify derogation from the United States’ obligations under that treaty.” While the U.S. has no reporting obligations under the American Convention because it is not a party to that treaty, the Commission reiterated its oft-stated conclusion that the United States is “subject to the fundamental rights of individuals” contained in the OAS Charter and the American Declaration of the Rights and Duties of Man. (AR 2001, at 670). Second, the Commission issued requests for precautionary measures under Article 25 of its Rules of Procedure in two situations where targeted groups sought the Commission’s protection. The Commission is no stranger to issues arising from terrorist attacks, having dealt with terrorism on a regular basis for some time throughout Latin America. The Commission is scheduled to release a major study on the topic of terrorism in the very near future. In the first and most notable of the cases, the Commission issued a request for precautionary measures to the United States on behalf of detainees in Guantanamo Bay, Cuba. While the Commission’s requests for
96 INTERNATIONAL CIVIL LIBERTIES REPORT precautionary measures often do not attract Charter, the Commission has ruled that OAS either media or academic attention, this request members are subject to an international legal received widespread coverage.32 The petition obligation to comply with a request for such here was filed on behalf of a group of unnamed measures.” by clearly identifiable individuals, all detainees The statement that a request for at Guantanamo Bay, Cuba. The Guantanamo precautionary measures creates “an international petition was coordinated by the Center for legal obligation to comply” is tantamount to an Constitutional Rights, based in New York City, assertion that the Commission’s requests are in collaboration with the Center for Justice and binding on the countries to which they are International Law (CEJIL) in Washington and a issued. The United States asserts in its pleadings small group of legal academics and students. to the Commission, however, that, by virtue of The action was taken in parallel with a federal its status as a non-State party to the American petition for habeas corpus pursuant to 28 U.S.C. Convention, the Commission lacks jurisdiction § 2241, filed on behalf of named detainees at over it, lacks jurisdiction to render any opinion Guantanamo. The petition was dismissed for that implicates the application of international want of jurisdiction because “the military base humanitarian law, lacks the power to issue at Guantanamo Bay, Cuba is outside the binding precautionary measures, and lacks the sovereign territory of the United States.”33 The need to intervene because the detainees’ legal Commission suffers no such lack of jurisdiction, status is clear and they are being well-treated. as its powers reach to extraterritorial acts of After submission of additional arguments from nations, particularly in the Americas. the petitioners, the Commission issued an The Commission’s request to the United additional communication to the United States States seeks the protection of precautionary on July 23, 2002 stating that “the Commission measures under Article 25 of the Commission’s remains of the view that it has the competence Rules of Procedure. Such requests are sought in and the responsibility to monitor the human “serious and urgent cases” in order to maintain rights situation of the detainees and in so doing the status quo ante in cases before the to look to and apply definitional standards and Commission, and to protect individuals who are relevant rules of international humanitarian law the subject of the litigation from “irreparable in interpreting and applying the provisions of harm.” Normally, a request for precautionary the Inter-American human rights instruments in measures is sought contemporaneously with the times of armed conflict.”34 filing of a petition for review on the merits, but The core of the Commission’s ruling in this case, the petitioners sought only lies in its conclusion that the executive branch precautionary measures. The Commission was of the U.S. government is not entitled to emphatic in its assertion that the U.S. unilateral and unreviewable designation of the government has an obligation to follow their Guantanamo detainees as unlawful combatants requests for such measures: “ The Commission under international humanitarian law. Such notes preliminarily that its authority to receive designation has the legal effect of leaving the and grant requests for precautionary measures . . detainees without any legal protection for so . is, as with the practice of other international long as armed conflict continues. The detainees decisional bodies, a well-established and are entitled, the Commission concludes, to necessary component of the Commission’s access to a “competent tribunal” to determine processes. Indeed, where such measures are their legal status. The Commission’s considered essential to preserving the interpretation of international humanitarian law Commission’s very mandate under the OAS is relatively new, but its interpretation of its own
97 INTERNATIONAL CIVIL LIBERTIES REPORT norms by use of other treaties and treaty body decisions is hardly unique in the Commission’s history, nor in that of other international tribunals. The Commission heard arguments in its October 2002 regular session on the status of the detainees, and the U.S. reiterated its legal position before the Commission. The second petition for precautionary measures was filed in June 2002, on behalf of “INS detainees ordered deported or granted voluntary departure.” This group is composed of foreign individuals, mostly men of Middle Eastern or Asian nationality, in the United States. These people are taken into custody by the Immigration and Naturalization Service (INS) for minor immigration rule violations such as visa overstays and then kept in custody indefinitely, without criminal charges or the opportunity to leave voluntarily for their home countries. The INS holds closed hearings in these matters, does not release the names of the individuals in question, and refuses to provide public information on the conditions of their confinement or their treatment in custody. The detainees have no effective legal means of challenging their detention. After repeated requests for information to the United States went unanswered, the Commission issued a request for precautionary measures on September 26, 2002. The request noted that the government had failed to clarify or contradict the petitioners’ assertions that there is no basis under domestic or international law for continued detention of these persons, that there is no public information on the treatment of these detainees in custody, and that the detainees have no basis for challenging their status. The request for precautionary measures seeks to protect the detainees’ “right to personal liberty and security, their right to humane treatment, and their right to resort to the courts for the protection of their legal rights, by allowing impartial courts to determine whether the detainees have been lawfully detained and whether they are in need of protection.”
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E. Cases Arising in Colombia’s rights, the violation of the lawyer-client Internal Armed Conflict privilege, and the scope of the State’s obligation to protect all these rights. [Readers interested in these developments However, the customary complaints of should consult the full version of this article.] torture, inhumane treatment based on poor prison conditions, violations by security forces F. Cases Reflecting the and paramilitary death squads with State Continuing Consequences of collaboration or acquiescence, disappearances, Guatemala’s Internal Armed extra-judicial executions, arbitrary detentions, Conflict and due process violations will also continue to be the subject of Commission decisions in [Readers interested in these developments future reports. The countries affected are should consult the full version of this article.] Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guatemala, Guyana, Haiti, Honduras, G. Cases from Peru Mexico, Nicaragua, Panamá, Paraguay, Peru, St. Lucia, Trinidad and Tobago, Uruguay and [Readers interested in these developments Venezuela. should consult the full version of this article.] Endnotes H. Other Reported Cases 1 Eur.Court HR, Timurtas v. Turkey, Judgment of 13 [Readers interested in these developments June 2000; and Eur. Court HR, Çakici v. Turkey, should consult the full version of this article.] Judgment of 1 July 1999, para. 98.
2 I. Friendly Settlements Jennifer Harbury engaged in three extended hunger strikes, one of which was held in front of p ublic offices in Guatemala C ity. She also expended efforts [Readers interested in these developments on legal remed ies inside and outside of Guatemala. should consult the full version of this article.] See Harbury v. CIA, 403 U.S. 536 (2002).
J. Other Recently Admitted 3 Article 19(6) of the Protocol provides that the Cases Commission and Court may hear individual complaints that address violations of the right of Cases admitted during the period unions to organize and the right to education, as covered by this report comprise an interesting those rights are articulated in the Proto col. array of social issues ranging from questions of 4 State obligations towards HIV-positive persons, The Comm ission alleged violations of “a combination” of the following articles of the pensioners and their social security benefits, Convention: 4 (Right to Life), 11 (Right to Privacy), indigenous peoples and the application of 12 (Freedom of Conscience and Religion), 16 Agreement 169 of the International Labor (Freedom of Association), 17 (Rights of the Fam ily), Organization on Indigenous and Tribal Peoples 22 (Freedom of Movement and Residence), and 23 to rights concerning natural resources on (Right to Participate in Government). Para. 156. traditional lands. The Commission is examining immigration and nationality rights, freedom of 5 For an excellent treatment of the legal effects of expression for journalists and authors, political Trinidad’s withdrawal, see Natasha Parassram rights involving election participation, labor Concepcion, The Legal Implications of Trinidad &
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16 Tobago’s Withdrawal From the American The complete title is Report Submitted by Radhika Convention o n Hum an Rights, 16 AM. U. INT’L L. Coomaraswamy, Special Rapporteur on violence REV. 847 (2001). against women, including its causes and consequences, in accordance with Resolution 1997- 6 See, e.g. Second Progress Report of the Special 44 of the Commission, E-CN.4/1998/54, January 26, Rapp orteurship on M igrant W orkers and their 1998. Families in the Hemisphere, AR 2000, at 1415. 17 Fn. 26, citing the Special Rapporteur on Violence 7 The Human Rights Situation of the Indigenous Against Women. People in the Americas, 20 October 2000. (fu ll cite 18 on web) The case contains a discussion of the inappropriateness of military jurisdiction to judge 8 Authorities and Precedents in International and facts such as those arising here. See paras. 78-82. Domestic Law for the Proposed American The Commission also notes that one of its previous Declaration on the Rights of Indigenous Peoples, 1 reports on the Situation of Human Rights in Mexico March 2001. cited that impunity for torture was “commonplace”, and that it is often used “during preventive detention 9 Brazil ratified in 1992. and preliminary investigation phases, as a way of obtaining confessions and/or intimidation.” (para. 87) 10 Brazil ratified in 1995. 19 Michael Edwards et al. v. The Bahamas, Report 11 The Comm ission concluded that the 1984 police No. 48/01, Cases 12.067, 12.068, 12.086 (April 4, investigation provided clear and decisive evidence 2001); Juan Raul Garza v. United States, Report No. “for concluding the trial and proceedings.” (para. 39) 52/01, Case 12 .243 (A pril 4, 2001); Donnason Knights v. Grenada, Report No. 47/01, Case 12.028 12 The Report cites studies indicating the “high (April 4, 2001). Leroy Lamey et al. v. Jamaica, number of domestic attacks of women in Brazil”, the Report No. 49/01, Cases 11.826, 11.843, 11.846, disproportionate number of women victims in these 11.847 (April 4, 2001); Joseph Thomas v. Jamaica, cases, the fact that 70% of criminal complaints Report No. 127/01, Case 12.183 (December 3, 2001); relating to domestic violence are put on hold with no Michael Domingues v. United States, Report No. conclusion being reached, and only 2% result in a 62/02, Case 12.285 (October 22, 2002). conviction. Brazil repealed the “honor defense” 20 justification for wife killing on ly a deca de ago, in Gary T. Graham (Shaka Sankofa) v. United States, 1991, although the defense was still asserted without Report No. 51 /00, Case 11.19 3 Adm issibility judicial censure at trial. (paras. 45-49). decision (June 15, 2000); Ramon Martinez-Villareal v. United States, Report No. 108/00, Case 11.753 13 The victims’ statement revealed that they speak Admissibility decision (Decem ber 4, 2000); their ow n indigenous language and understand only Balkissoon Roodal v. Trinidad and Tobago, Report some Spanish, but do not speak it. (para. 31). No. 89/01, Case 12.342 Admissibility decision (October 10, 2001). 14 At present, representatives of the Mexican 21 Government and th e petitioners are engaged in The Rules of Procedu re of the C omm ission permit discussions regarding compliance with the it to issue precautionary measures in “serious and Commission’s recommendations for reparations and urgent cases” in o rder to “p revent irreparable harm to a criminal investigation in the civilian courts, persons.” Rules of Procedure of the Inter-American according to CEJIL’s 2001 Annual Report, (Center Commission on Hu man R ights, in BASIC DOCUMENTS for Justice and International Law), page 104. PERTAINING TO HUMAN RIGHTS IN THE INTER- AMERICAN SYSTEM, OEA/Ser.L/V/l.4 rev. 8 (22 May 15 1998 Report 2001), at 127, 135. In its Annual Report for 2000, the
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24 Commission sought precautionary measures in two Reyes, id. at 248-256. capital cases from Grenada (Rudolph Baptiste and 25 Donn ason K nights), two cases from Jamaica (Denton Richard J. Wilson , The Influence of International Aitken and Dave Sewell), two cases from Trinidad Law and Practice on the Death Penalty in the United and Tobago (Bakisson Roodal and Sheldon Roach), States, in AMERICA’S EXPERIMENT WITH CAPITAL and ten cases from the U nited States (Douglas PUNISHMENT (James R. Acker, Robert M. Bohm and Christopher Thomas, Juan Raul Garza, Shaka Charles S. Lanier eds., 2d ed., forthcomin g 2002). Sankofa, Victor Saldaño, Michael Domingues, 26 Miguel Angel Flores, Johnny Paul Penry, James Mr. Sankofa has been represented at the Winston Chambers, Alexander W illiams and Jose Commission by students of the International Human Jacobo Amaya Ruiz). ANNUAL REPORT OF THE Rights Law Clinic at American University’s law INTER-AMERICAN COMMISSION ON HUMAN RIGHTS school. 2000, VOL. 1, OEA/Ser.L/V/II.111, Doc. 20 rev. 16 27 (16 April 2001). In its Annual Report for 2001, the Domingues v. Nevada, 114 Nev. 783, 961 P.2d Commission sought precautionary measures in one 1279 (1998), cert. denied 528 U .S. 963 (1999). capital case from Guyana (Daniel and Cornell Vaux), 28 four capital cases from Trinidad and Tobago (Arnold Dissent from denial of certiorari in separate Ramlogan, Beemal Ramnarace, Takoor Ramcharan, published opinions by Stevens, J. and by Ginsberg and Alladin Mohamed), and three cases from the and Bryer J., at 536 U.S. __ (August 28, 2002). United States (Thomas Nevius, Robert Bacon Jr., and Justice Stevens’ dissent alluded to the “apparent Gerardo Valdez Maltos). ANNUAL REPORT OF THE consensus that exists among the States and in the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS internatio nal com munity” as to the impropriety of the 2001, VOL. 1, OEA/Ser.L/V/II.114, Doc. 5 rev. 1 (16 death penalty fo r juveniles. April 2002), at 77, 83-84, 84-85 . James Rexford 29 Powell v. United States, Precautionary Measures Dissent from denial of petition for writ of habeas issued on September 19, 2002 (on file with the corpus, Stevens, J. (joined by Justices Souter, authors); Javier Suarez-Medina v. United States, Ginsberg and Bryer), at 537 U .S. __ (2002). Precautionary Measures issued on July 29, 2002. 30 Dissent from denial of certiorari by Bryer, J. in 22 In Edwards et al. v. The Bahamas, id. at para. 124- Foster v. Florida, 537 U .S. __ (2002); concurrence in 154, the Com mission perform ed the same analysis denial by Thomas, J., id.; statement by Stevens, J. id. and reached the same conclusions under the 31 American Declaration of the Rights and Duties of Powell v. Texas, Application for stay of execution Man because the Bahamas are not a party to the denied by the Court. Justice Stevens and Ginsberg Convention. The Commission looked to the terms of dissent. U npublished order of O ctober 1 , 2002. A Articles I, XXIV, XXV and XXVI (right to life, right petition for writ of certiorari was denied the same day to juridical protection, right to an impartial hearing, and M r. Powell was ex ecuted. right to due process of law and to h uman treatment, 32 and right to petition). See, e.g., Inter-American Comm ission on Human Rights (IACommHR), Washington, Decision of 12 23 Reyes v. The Queen [2002] 2 A.C. 235, 254-255 March 2002, 23 HUM. RTS. L. J. 15 (2002); Dinah (Belize). See also Regina v. Hughes [2002] 2 A.C. Shelton , The Legal Status of the Detainees at 259 (Saint Lucia); Fox v. The Queen [2002] 2 A.C. Guantanamo Bay: Innovative Elements in the 284 (Saint Christopher and Nevis). A similar decision Decision of the Inter-American Commission on is likely to be forthcoming for Saint Vincent and the Human Rights of 12 March 2002, 23 Hum. Rts. L.J. Grenadines. See the discussion of Spence v. The 13 (2002); 41 I.L.M. 532 (2002); United States Queen in Reyes, supra at 268-269. See also Alex (U.S.): Response of the United States to Request for Bailin, The Inhumanity of Mandatory Sentences, Precautionary Mea sures – D etaintees in CRIM . L. REV. 641 (United Kingdom August 2002). Guantanamo Bay, Cuba [April 15, 2002] 41 I.L.M.
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1015 (2002).
33 Rasul v. Bush, Civil Action No . 02-299, U.S. D ist. Ct. D.C., Memorandum O pinion of July 30, 2002, at 30; now pending before the U.S. Ct. of Appeals for D.C. as Habib v. Bush, Case Nos. 02-5284 and 02- 5288 (Consolidated).
34 Letter from Ariel Dulitzky, In-charge of the Executive Secretariat, Inter-American Commission on Human Rights, to the Center for Constitutional Rights, July 23, 2002 (containing text of a communication of the same date from the Comm ission to the US governm ent).
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12. HOLOCUST RESTITUTION IN II. HOLOCAUST RESTITUTION THE UNITED STATES AND EFFORTS IN THE UNITED OTHER CLAIMS FOR STATES HISTORICAL WRONGS – AN UPDATE A. Cases Against European Banks By: Michael J. Bazyler and Adrienne Scholz* Swiss banks litigation – The modern era of Holocaust asset litigation began in I. INTRODUCTION October 1996 with the filing of a class a class action lawsuit against the three largest private In the 2001 edition of this Report, I Swiss banks – Credit Suisse, Union Bank of summarized the lawsuits filed in the United Switzerland ( hereinafter “UBS”) and Swiss States seeking financial restitution from Bank Corporation – in federal district court in European and American corporations for their Brooklyn, New York. Thereafter, two other Holocaust-era financial activities. To date, over lawsuits were filed against the same banks, with $8 billion has been pledged as a result of the all three actions consolidated in April, 1997, as Holocaust-era litigation, with elderly Holocaust In re Holocaust Victim Assets Litigation, Case survivors beginning to receive payments in the No. CV-96-4849 (E.D.N.Y 1996.) In August, latter half of 2001. 1998, the banks settled the case for $1.25 Since 1996, when the first Holocaust- billion. era lawsuit was filed, other historical claims In addition to the Jewish claimants, the have arisen which have adopted the Holocaust following four groups persecuted by the Nazis restitution movement as a model. All are a are also receiving a part of the $1.25 billion direct result of the successes achieved in the settlement: (1) homosexuals; (2) physically or Holocaust restitution arena. Three such mentally disabled or handicapped persons; (3) prominent movements are: (1) the lawsuits filed the Romani (Gypsy) peoples; and (4) Jehovah’s by victims of Japan and Japanese industry for Witnesses. In return for $1.25 billion, plaintiffs wrongs committed during World War II; (2) the agreed to drop all lawsuits against the Swiss emerging call for African-American reparations banks being sued, as well as “the government of stemming from slavery; and (3) the recent Switzerland, the Swiss National Bank, all other claims being made by survivors of the Swiss banks, and all other members of Swiss Armenian genocide for insurance proceeds paid industry, except for the three Swiss insurers who by their deceased relatives. are defendants in the [federal class action insurance litigation (see discussion below)].” Settlement Agreement, paragraph 3, available at
101 INTERNATIONAL CIVIL LIBERTIES REPORT in November, 1999, to confirm the fairness of total amount of the dormant account claims does the settlement, and in July 2000, did so. not fully exhaust the $800 million fund, a Two sets of appeals also had to be secondary distribution will have to made. The resolved before distribution of the settlement current status of the Swiss banks settlement is proceeds could begin. In September 2000, the available at
102 INTERNATIONAL CIVIL LIBERTIES REPORT depositors in a process known as “Aryanization” Europe often purchased insurance, and an of the accounts. In late 1997 and early 1998, insurance policy was known as a “poor man’s two class actions were filed against a half dozen Swiss bank account.” In 1997, a class action French banks in federal court in New York, suit was filed in the Southern District of New followed by another action in California state York against twenty-five European insurance court in San Francisco. Bodner v. Banque carriers (many of which were later dismissed Paribas, Case No. CV 97-7443 (E.D.N.Y. filed due to the German settlement, discussed below) Dec. 7, 1997); Benisti v. Banque Paribas, Case on behalf of all those with claims to unpaid No. CV 98-785 (E.D.N.Y. filed Dec. 23, 1998). Holocaust Era insurance policies. Shortly The lawsuits also named the British bank, thereafter, the National Association of Insurance Barclays Bank, and two U.S. financial Commissioners, composed of the insurance institutions, Chase Manhattan Bank and J.P. regulators in all fifty states, created a working Morgan & Co. These banks had branches in group on Holocaust and insurance issues. Some France during the war, and are alleged also to of the regulators began holding hearings, have participated in the confiscation of the inviting the companies to explain their reasons assets of their Jewish depositors. for non-payment of these pre-war policies. In July 1999, Barclays settled for $3.6 Prodded by the commissioners from million, to be paid to the families of its Jewish California, New York and Florida, which customers in France who lost their assets during contain the largest concentration of Holocaust the Nazi occupation. survivors in the United States, five of the The other banks declined to settle, and insurers sued, formed (and funded) the filed motions to dismiss. The motions were International Commission on Holocaust Era denied and, as a result, a settlement was Insurance Claims, commonly known as achieved in the last days of the Clinton ICHEIC, headed by former U.S. Secretary of Administration through the efforts of Stuart State Lawrence Eagleburger. Eizenstat, appointed by Clinton as special envoy ICHEIC was intended to be a non- for Holocaust restitution issues. adversarial alternative to the American litigation The banks agreed to establish two funds brought against the insurance companies, and to compensate claimants for assets seized by the correspondingly, the class action suit seemed to French banks during the occupation. One fund, have stalled after its creation. In February 2000, with no limits, will pay claimants who have after numerous delays, ICHEIC announced that documentation or some other substantiated it would begin a two-year claim process to proof of wartime assets held in French banks. locate and pay unpaid Holocaust-era insurance The second fund, capped at $22.5 million, will policies. compensate claimants with less proof, known as Unfortunately, to date ICHEIC has done “soft claims,” who will present their case to a a poor job. By May 2001, it distributed only $3 commission. Each of the claims approved by million to claimants, while spending more than the commission will be paid at least $1500. $30 million in expenses. See Weinstein, “Spending by Holocaust Claims Panel B. Cases Against European Criticized,” L.A.Times, May 17, 2001, at 1. Insurance Companies Eagleburger’s annual salary alone is $350,000. In November 2001, the House Government In the time before the two world wars, Reform Committee, concerned with the spate of insurance policies and annuities were popular negative press reports about ICHEIC and its investment vehicles in Europe. Jews in pre-war work, held a daylong hearing on the issue.
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By early 2002, ICHEIC had run up $40 wrote a lengthy decision denying these claims. million in expenses and, of the now 81,000 Most importantly, his decision makes clear that claims received, made offers on about 1,000 – ICHEIC, at least from a judicial standpoint, is still only about 1.5 % of the claims received. an utterly “inadequate forum” for the resolution Moreover, of the 1,000 offers made by the of these policies. In Re: Assicurazioni Generali ICHEIC insurers, many were for small sums, SpA Holocaust Insurance Litigation, 2002 WL nowhere close to the valuation figure 31133027(E. Dist N.Y. Sept, 25, 2002). It looks established by Eagleburger in his July 1999 as if this seemingly stalled suit is about to directive. According to the New York Times, become very active again, after an almost three- citing several ICHEIC members, some of the year hiatus. offers made by the insurers were as low as $500, In the meantime, several states had also which survivor groups labeled “insulting.” For created statutes requiring insurance companies this reason, as of August 2002, less than half of operating in their state to disclose Holocaust era the offers made by the ICHEIC insurers, information, enforceable through the insurance (totaling $20 million, of which $14 million commissioners’ licensing authority. The statutes came from Generali, have been accepted by the of both Florida and California were challenged claimants. by the insurers on several due process grounds, Several individual California lawsuits, and were struck down at the trial court level. five of which have settled, have yielded higher However, in July, the Ninth Circuit reversed the payments than the amounts distributed trial court, so the California statute may yet pass individually through ICHEIC. 2 While the constitutional muster. Gerling Global Reins. settlement terms remain confidential, the New Corp of America v. Low, 296 F.3d 832 (9th Cir. York Times reported that one of the California July 15, 2002). (The Eleventh Circuit had cases alone settled for $1.25 million. Recently, already affirmed the trial court’s decision on the some of those who had rejected the offers Florida statute. Gerling Global Reins. Corp of actually brought suit against ICHEIC in America v. Gallagher, 267 F.3d 1228 (11th Cir. California, claiming the offers were unfair and 2001).). The insurers have applied for certiorari misleading to survivors. Haberfeld v. to the Supreme Court. Assicurazioni Generali, S.p.A., No. BC250565 The current status of the ICHEIC claims (L.A. County Super. Ct. May 16, 2001), settlement process is available at available at
104 INTERNATIONAL CIVIL LIBERTIES REPORT for slave labor. Eventually, close to forty number today approximately 1 million – will be separate lawsuits were filed in various courts awarded $2,500 each. In return for the throughout the United States against numerous settlement, the plaintiffs’ attorneys agreed to German companies which used slave labor drop all the pending slave labor suits. during World War II. In June 2001, the checks started to go On September 13, 1999, two federal out. At the outset, claimants did not receive the judges sitting in New Jersey issued separate entire DM 15,000 ($7,500). Rather, the first set opinions dismissing five of the lawsuits, against of payments paid out only DM 10,000 Ford Motor Company, Iwanowa v. Ford Motor (equivalent at the time to $4650). This led to Co., 67 F.Supp.2d 424 (D.N.J. 1999), and confusion and disappointment, since the against German companies Degussa and survivors had been told, and the media widely Siemens. Burger-Fischer v. Degussa A.G., 65 reported, at the time of the settlement and F. Supp.2d 248 (D.N.J. 1999) Both judges held thereafter, that the amount would be DM 15,000 that the suits were precluded by the treaties for slave labor claimants. To add to the muddle, entered into by Germany and the Allied powers the VTNP survivors in the Swiss banks after the war. Some claims against Ford were settlement also began receiving at the same time also found to be time-barred. The dismissals a $1,000 check from the slave labor portion of were appealed, but eventually became moot the Swiss banks settlement. Many believed that when German government and industry, in the $1,000 came from the Germans, since both December 1999, entered into a preliminary the German and Swiss funds were processed settlement with the plaintiffs’ lawyers and through the Claims Conference, with only the representatives of Jewish organizations to fine print on the check indicating the source of resolve all slave labor and related claims for the funds. Nevertheless, once the German DM 10 billion (approximately $4.8 billion). In restitution process got going, the flow of funds addition to claims for slave labor, the settlement moved quite quickly. By June 2002, one year also includes: (1 ) claims by mothers shipped to after the payments first started to go out, more Germany whose children were taken away from than DM 2.6 billion, ($1.3 billion) had been them and placed in a kinderheim, a children’s distributed to claimants worldwide, over $300 home, where they often died; and (2) claims by million of which was paid to Jewish survivors survivors of horrific medical experiments through the Claims Conference.4 conducted by the Nazis, allegedly for the benefit Keeping in mind that the primary intent of German private pharmaceutical concerns. of the Fund was to compensate former slaves, It took over one and one-half years to DM 8.1 billion was allocated for this purpose. finalize the German slave labor settlement. DM 1 billion was allocated for property losses, Final resolution was achieved in May 2001, which included (1) payments to persons who when the German parliament gave final suffered property losses at the hands of the approval to a law funding the settlement fund. Nazis but who, for technical reasons, could not Under the contemplated scheme for distribution, collect under existing German indemnification those forced by the Nazis to work to death – programs and (2) payments for unpaid slave laborers, and primarily Jews – who Holocaust insurance policies issued by German survived the war and are still living will receive insurance companies. The remainder was set payments of up to $7,500. According to some aside for various social and humanitarian estimates, approximately 240,000 former slave projects to help needy survivors and for labor claimants are alive today.3 Former forced Holocaust education, designated as “projects of laborers – primarily non-Jews, estimated to
105 INTERNATIONAL CIVIL LIBERTIES REPORT the ‘Remembrance and Future Fund.” German Nuremberg trials, to transport all the German- Foundation Law, Section 9(7). stolen art back to Germany. The value of the art As with the Swiss banks’ $1.25 billion plundered by the Nazis is astounding: $2.5 settlement, Germany and its entire private billion in 1945 prices, or valued at $20.5 billion industry, for DM 10 billion have bought for today. themselves complete legal peace from After the war, the Allies set out on the bothersome American litigation. complicated task of returning art and other Following the German precedent, the cultural objects to the country of origin of those Austrian government and Austrian industry whose art had been recovered. While the effort likewise agreed to compensate its former slave was massive (for example, 60,000 artworks laborers and other victims of its policies. Under were returned to France, with 45,000 returned to a preliminary agreement reached in October their owners, mostly Jewish), it was only 2000, Austria pledged a total package of $500 partially successful. Many Holocaust looted million to settle claims for Holocaust-era artworks are now turning up in surprising seizures of various types. Earlier, Austria had places. Museums all over the world have agreed to compensate former slaves and forced discovered that they are in possession of Nazi- laborers, setting aside approximately $410 stolen art. Looted art, unlike other areas of million, and to supplement those payments with Holocaust restitution, has necessarily been an additional $112 million for pension payments approached on an ad hoc, case-by-case basis, to Jewish victims who fled Austria as children. rather than by class action litigation. And even In February 2001, a month after Stuart though American legal rules involving stolen art Eizenstat put the second Austrian deal together, may appear to be clear, the actual litigation of a suit was filed in federal court in Los Angeles Holocaust art claims is, on the whole, complex, by some of the non-labor claimants against time-consuming and expensive. Austria seeking to void the deal. As of August Goodman v. Searle, involving Degas’ 2002, this lawsuit is still pending. Austria, like Landscape with Smokestacks, was the first case Germany before it, is presently withholding brought. Friedrich Gutmann had purchased the payments on this portion of the settlement Degas in 1932. In April 1939, anticipating the because of this pending litigation. For the slave oncoming war, he sent the painting to an art labor claims, all lawsuits against Austrian firms dealer in Paris for safekeeping. In 1943, were dismissed by the class action lawyers. Gutmann and his wife attempted to escape from Over 20,000 former slaves have already Nazi-occupied Holland to Italy, where their received their one-time payout of $7,000. daughter Lili was living. They were arrested by the Nazis and sent to concentration camps, D. Cases Regarding Artworks where they perished. After the war, the Looted by the Nazis Gutmann children (now with the Anglicized name “Goodman”) attempted to locate their Between 1933 and 1945, the Germans parents' possessions, but were unsuccessful. In stole from both museums and private collections 1994, Simon Goodman, a grandson, was leafing throughout Europe approximately 600,000 through art books at the U.C.L.A. Art Library artworks. This includes paintings, sculpture, where he discovered a photo of the Degas objects d’art, and tapestries. When rare books, pastel. The book listed the artwork as being in stamps, coins and fine furniture are considered, the private collection of Daniel Searle, a the figure goes into the millions. It took 29,984 Chicago pharmaceutical tycoon. railroad cars, according to records from the
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On December 5, 1995, the Gutmann and the first against an American museum -- heirs wrote to Searle demanding the return of also settled. Rosenberg v. The Seattle Art the Degas. Searle refused, claiming that the Museum was filed in July 1998 in Seattle federal artwork rightfully belonged to him. The court. The case involved the artwork Goodmans then filed suit in federal court in Odalisque, a 1928 painting by Henry Matisse, Manhattan, basing their jurisdiction on the fact also known as Oriental Woman Sitting on Floor. that Searle bought the Degas there. Searle’s Paul Rosenberg, one of the most attorneys successfully petitioned to have the suit prominent and wealthy art dealers in pre-war moved to federal court in Chicago. There, France, acquired the Odalisque in 1929. Searle’s attorneys filed a motion of summary Because Rosenberg was Jewish, he fled France judgment, arguing that the Degas had not been for the United States in 1941. The Nazis then stolen by the Nazis, but rather was one of the seized more than four hundred of his paintings. artworks that Friedrich Gutmann sold prior to After the war, Rosenberg returned to Paris and, his deportation when he began experiencing by the time he died in the late 1950's, managed financial difficulties during the war. The to recover most of his stolen art. The Gutmann heirs disputed this allegation. Odalisque, however, was not one of them. The Goodmans also argued that Searle As with the stolen Degas, the legal either was, or should have been aware, of the journey leading to the return of the Odalisque Degas' checkered pedigree or provenance. came about through pure serendipity. In 1997, Searle claimed that when he purchased the Hector Feliciano’s The Lost Museum, a book pastel he relied on the expertise of the curators describing the numerous artworks stolen by the from the Art Institute of Chicago, a museum Nazis and found in France, was published in the where he is a trustee, who assured him that the United States. Feliciano described many of the artwork had a clean provenance. Plaintiffs’ missing art works, and included a long attorneys, however, took pre-trial depositions of discussion of the Odalisque. Shortly thereafter, the two curators who reviewed the provenance the grandson of Prentice Bloedel, a Canadian of the Degas for Searle in 1987. Apparently, timber magnate, was at a party in Seattle, and the curators missed evidence pointing to flaws happened to be flipping through the pages of in the pastel’s ownership records, including the Feliciano’s book, lying on the party host’s fact that it was once owned by a notorious coffee table. He spotted a photograph of the wartime fence for art looted by the Nazis. Odalisque, and recognized it as a painting that Searle also argued that the claim was had been hanging for many years at his time-barred based on the Illinois courts’ grandparents’ country home. A year earlier, the “discovery rule” in which plaintiffs in a stolen Bloedel family had donated the painting the art case must show that they had searched Seattle Art Museum, commonly known by its diligently for the work during the intervening acronym SAM. The Bloedels then contacted time between its disappearance and finding it in Feliciano. He informed Paul Rosenberg’s heirs. the defendant’s possession. Since Searle’s In August 1997, the Rosenberg heirs ownership of the work had been published in contacted SAM, informing them of their several art books over the years, the Goodmans ownership claim upon the Odalisque. In July argued that the New York “demand and refusal” 1998, the heirs brought suit for the recovery of law should apply – a much more lenient the painting. In June 1999, while the litigation approach. The court found in favor of the was ongoing, SAM agreed to return the painting Goodmans, and the case was quickly settled. to the Rosenberg family. In June 1999, the second modern-day The next, and without a doubt the most Holocaust looted art case to reach litigation – famous, Holocaust looted art case was the 107 INTERNATIONAL CIVIL LIBERTIES REPORT litigation over the Schiele paintings on loan impaneling a state criminal Grand Jury which from Austria to New York’s Museum of issued a subpoena ordering MoMA to appear as Modern Art (MoMA). From October 1997 to a witness before it, and to produce the two January 1998, MoMA held an exhibition of paintings, thereby effectively preventing their artwork by the Austrian modernist painter Egon departure. MoMA filed legal proceedings in Schiele, made up of 150 works of art on loan New York State court to quash the subpoena. from the Leopold Museum in Austria. Among In May 1998, the New York Supreme the Schiele works were two of his paintings, Court judge presiding over the case ruled in Dead City III (“Dead City”) and Portrait of favor of MoMA. The District Attorney Wally (“Wally”). The Schiele exhibition was a appealed. In March 1999, the Appellate great success for MoMA. However, as the Division of the New York Supreme Court exhibition was winding down, the heirs of two reversed the decision. See In re Application to Holocaust victims contacted MoMA with a most Quash Grand Jury Subpoena Duces Tecum unexpected accusation. Dead City and Wally (People v. The Museum of Modern Art), 688 were Nazi-stolen artworks. On December 31, N.Y.S.2d 3 (1998). The appellate court held 1997, five days before the exhibition was to that a subpoena to appear before a Grand Jury close, the museum was informed that Wally was and produce evidence did not constitute stolen from Lea Bondi Jaray (“Bondi”), an “seizure” and therefore the issuance of a Austrian Jewish art dealer who fled Austria in subpoena upon MoMA was not violative of 1938. Dead City was stolen from Fritz Section 12.03 prohibiting "a seizure … upon Grunbaum, also an Austrian Jew, who did not any work of art." Id. MoMA appealed from this survive the war. ruling. In September 1999, The New York The Bondi and Grunbaum heirs Court of Appeals, the highest court in New York requested the museum to hold on to the State, reversed the appellate court.. People v. paintings, allowing them to remain in New York The Museum of Modern Art, 93 N.Y.2d 729 pending determination of their true ownership. (1999). It held that the anti-seizure law permits MoMA replied that it would deny these no exceptions, and applies to any legal requests. Although MoMA expressed sympathy proceedings that would result in keeping the for the claims, Lowry explained that MoMA’s paintings in New York beyond its agreed-to loan agreement with the Austrian government loan period. In this case, the court held, because required the museum, upon conclusion of its the criminal subpoena issued by the Grand Jury exhibition, to ship the paintings back to Europe. led to an indefinite detention of the paintings in In a usual stolen property case, a party New York, it amounted to a “seizure” of the who seeks the return of alleged stolen property artworks. seeks injunctive relief barring its removal from The decision did not sit well with state the jurisdiction, but this was unavailable to the legislators. In May 2000, the New York State heirs because New York law bars parties legislature unanimously enacted an amendment seeking recovery of a stolen artwork from to ACAL 12.03, clearly announcing that the law seeking such relief. only prohibits seizure in civil, and not criminal The heirs tried another route. They proceedings. The amendment was passed contacted the New York District Attorney’s despite strong opposition from New York office. Robert Morgenthau, the Manhattan museums. On May 25, 2000, Governor George District Attorney, sprang into action. Hours Pataki signed the legislation into law. before the paintings were to be returned to the The amendment, however, came too late Austrian government, the District Attorney was to be of practical significance to the loaned able to stop their departure from New York by Schiele works. Dead City was shipped back to 108 INTERNATIONAL CIVIL LIBERTIES REPORT
Vienna, where it is now safely ensconced at the - in effect to start the forfeiture proceedings Leopold Museum. However, within hours of anew. The strategy for the last request was to the New York court decision voiding the state file another complaint that would now make the subpoena, U.S. Attorney, Mary Jo White, Government’s allegations fit the requirements of obtained an emergency court warrant allowing the National Stolen Property Act -- i.e. to make the United States Customs Service in New York Wally “stolen property.” to seize Wally. The federal warrant was issued In December 2000, Judge Mukasey on the ground that the painting was stolen issued Portrait of Wally II. United States v. property knowingly imported into the United Portrait of Wally, 2000 WL 1890403 (S.D.N.Y. States in violation of the U.S. National Stolen Dec. 28,2000). The motion for reargument was Property Act. 18 U.S.C. § 2314 (2000). denied. Surprisingly, however, he allowed the Contemporaneously with the warrant U.S. Government to file a new complaint in the application, White filed a civil suit in federal case. As explanation for his unusual decision court in Manhattan seeking permanent forfeiture Judge Mukasey noted that “[t]his is not [an] of the painting from the Leopold Foundation. ordinary case … This case involves substantial Like the warrant, the civil forfeiture action issues of public policy relating to property asserted that the Foundation, in violation of stolen during World War II … There are more National Stolen Property Act, transported Wally interests potentially at stake here than those of into the United States knowing it to have been the immediate parties pursing this lawsuit. Id. property stolen by Welz. In turn, the Lea Bondi The next month, the U.S. Government filed its heirs and the Leopold Museum filed competing Third Amended Complaint. claims for the painting in the same action. In April 2002, twenty-one months after In July 2000, Judge Michael Mukasey his first decision and over a year after the U.S. issued his decision in the case, in what is now Government filed its new complaint, Judge known as Portrait of Wally I. United States v. Mukasey issued Portrait of Wally III. Portrait Portrait of Wally, 105 F.Supp.2d 288 (S.D.N.Y. of Wally, 2002 U.S. Dist. LEXIS 6445 2000). In his ruling, he dismissed the U.S. (S.D.N.Y. 2002). Reversing his ruling of almost Government’s forfeiture case. Judge Mukasey two years earlier, the judge now held that Wally found that the case could not proceed since, indeed was “stolen property” under federal law. under federal law, Wally was not stolen property In this latest opinion, Judge Mukasey also when it was brought into the United States for dismissed the jurisdictional arguments made by the MoMA exhibit. According to the court’s the Leopold Foundation, MoMA and Austria, reasoning, even if the painting was stolen when which filed an amicus briefs. In another defeat it was taken from Lea Bondi, it ceased to be for Austria, Judge Mukasey denied defendants’ stolen property was it was recovered by the U.S. motion to dismiss the Bondi heirs from the Army from Welz. As a result, the legal lawsuit. Last, he dismissed the separate claim of predicate that would trigger the National Stolen the grandson of Bondi’s husband to the painting. Property Act -- the property at issue must be It was a stunning reversal. Austria’s “stolen” -- was missing. Leopold Foundation will now be forced to go to White asked Judge Mukasey to trial to determine which competing claimant is reconsider his decision and the opportunity to the rightful owner Wally. Once decided, the reargue the case to convince him that he made a painting, now in storage with the U.S. Customs mistake. Alternatively, White asked Judge Service, will be turned over to its proper owner. Mukasey to reopen the case, take away his final In July 1999, a fourth Nazi-stolen judgment dismissing the action, and allow the artworks case was filed in New York. The case, government to file a new complaint in the case - Warin v. Wildenstein & Co., Warin v. 109 INTERNATIONAL CIVIL LIBERTIES REPORT
Wildenstein & Co., No. 115413-99 (N.Y. Sup. Finally, Austria is also a party to Ct. July 27, 1999), involves eight rare medieval another infamous Holocaust art lawsuit. The Christian manuscripts valued at approximately lawsuit involves six paintings of Austrian $15 million; and the parties are well-known painter Gustav Klimt. The claimant is Maria personalities in the art world. Altmann, in her late 80’s and living in Los The manuscripts are Books of Hours, Angeles. (See www.adele.at) Altmann is the compilations of devotional prayers that are niece and heir of Adele Bloch-Bauer. Adele and hand-written on parchment with elaborately her husband Ferdinand Bloch-Bauer were designed color illustrations of religious subjects. prominent Austrian Jews, living the life of bon Commissioned by wealthy European families vivants in pre-war Vienna. The couple were during the Middle Ages, they date back to the friends of Klimt, and Adele posed as one of his 15th through the 17th centuries. The models, including being the subject of some of manuscripts are now in the possession of the paintings in dispute. The paintings have the Wildenstein & Co., a legendary Manhattan art following titles: Adele Bloch-Bauer I, Adele gallery. Bloch-Bauer II, Beechwood, Apple Tree I, The manuscripts allegedly belonged to Houses in Unterach am Attersee, and Amalie Alphonse Kann, a renowned Jewish art collector Zuckerkandl. The paintings are now hanging in in France. The lawsuit alleges that the the Belvedere Gallery (the Austrian National manuscripts were part of Kann's collection of Gallery) in Vienna. twelve hundred artworks, stolen by the Nazis Adele Bloch-Bauer died at age 43 in from his villa in 1940 on the outskirts of Paris, 1925, of meningitis. In her will, executed two after Kann left France for England. The years earlier, she named five of the Klimt defendants in the New York litigation, then 81- paintings in dispute (and one other) and asked year old (and now deceased) Daniel Wildenstein that Ferdinand donate them to the Austrian and his two sons, Alec and Guy, maintain that Gallery upon his death. In 1936, Ferdinand the manuscripts did not belong to Kann. Rather, delivered one of the six paintings named in the the Wildensteins claim that the medieval prayer will (and not subject to this litigation) to the books were part of the personal collection of Gallery. In 1938, in the aftermath of the Georges Wildenstein, their family patriarch, Anschluss, Ferdinand fled Austria to also Jewish, whose Paris art gallery was Switzerland. Upon Ferdinand’s flight, the Nazis likewise looted by the Nazis. While Alphonse raided and stole his possessions, including his Kann fled in 1940 from France to England, home, his business and his artwork. Some of Georges Wildenstein came to New York, where the Klimt paintings went to the Austrian Gallery he reestablished his art empire. and others to other Austrian museums. In September 2001, Judge Marilyn Ferdinand died in 1945, several months after the Diamond of the New York Supreme Court, the war ended. In his last will, written shortly trial judge presiding over the case, denied the before he died, he did not make any bequests to defendants Wildenstein’s motion for summary the Gallery or to any other Austrian institution. judgment on the grounds that the action was After the war, Ferdinand hired Dr. time-barred. In April 2002, the appellate Gustav Rinesch, an Austrian lawyer and family division affirmed her ruling. Warin v. friend, to locate family property seized by the Wildenstein & Co., Inc., 740 N.Y.S.2d 331 Nazis. After Ferdinand died, the three Bloch- (2002). The case is now back before Judge Bauer heirs continued to retain Rinesch to Diamond proceeding through the pre-trial recover their family’s possessions, including the process. stolen artworks. In 1948, Rinesch negotiated a deal, whereby the heirs made a “donation” of 110 INTERNATIONAL CIVIL LIBERTIES REPORT the Klimt paintings mentioned in Adele’s will to arose. Under Austrian law, as in many other the Austrian Gallery in exchange for receiving countries, a party filing a lawsuit is required to an export license to bring out of Austria other deposit with the court a filing fee amounting to artworks of the family. Rinesch also a percentage of the amount sued. The filing fee acknowledged in writing the validity of in Austria is 1.2% of the value of a plaintiff’s Austria’s claims to the paintings. According to claim. Because the artworks were worth Maria, neither she nor the other three heirs were approximately $150 million, Altmann was ever aware of this deal. She always believed required to deposit a filing fee of $1.8 million that the other Klimt paintings were donated by with the court to have her lawsuit heard. A her aunt and uncle to the Austrian Gallery retired dress shop owner, she was unable to do before the war. so, and asked for special relief from the In 1998, in the midst of the Schiele Austrian court. The Austrian court granted her controversy, the Austrian government opened a partial waiver, but the reduced fee still up the Austrian Gallery’s archives to private amounted to all of her available assets, researchers to independently confirm that approximately $200,000, an amount she Austria does not possess wartime-looted maintains she could not pay. Altmann decided artworks. Among other things, researchers to drop her lawsuit in Austria, and, in August revealed not only the 1948 agreement, but also 2000, filed her lawsuit in federal court in Los correspondence that indicated it had been a Angeles. coercive process involving the export permits The Austrian defendants asked the court for their other belongings. to dismiss this lawsuit on sovereign immunity Later that year, a new Austrian grounds. Here, Altmann had no choice but to restitution law was enacted aimed to return sue Austria and the Austrian Gallery, which artworks that had been donated to Austrian under the FSIA, is considered “an agency or museums after the war under the coercive policy instrumentality” of the foreign state. of withholding export permits. Maria Altmann, Judge Florence-Marie Cooper, on May as the sole surviving Bloch-Bauer heir, 4, 2001, ruled in favor of Altmann. Judge contacted Austria for the return of objects that Cooper found that the suit fell within three were kept by the post-war Austrian government exceptions to the general rule of sovereign under the coercion program, including the Klimt immunity in the FSIA: (1) property taken in paintings. violation of international law, (2) where that In June 1999, the Advisory Board property is owned or operated by an agency or created under the law rejected Altmann’s claim instrumentality of the foreign state, and (3) that to the Klimt paintings, deciding that the Klimt agency or instrumentality is engaged in paintings were not coerced from the family but commercial activity in the United States. legally came to the Austrian Gallery under Austria and the Austrian Gallery took Adele’s 1923 will and Ferdinand’s orally an interlocutory appeal from Judge Cooper’s expressed intentions before he fled Austria that denial of their motion. Before the Ninth Circuit, the paintings would go the Austrian Gallery Austria argued that in denying Austria’s motion upon his death, in accordance with Adele’s to dismiss, the district court did not treat Austria wishes. fairly, i.e. in the same manner that the United Altmann’s attorney proposed to Austria States would be treated if our nation and one of that the matter be resolved by private arbitration its museums was sued in Austrian courts. On between the Austrian Gallery and Altmann. March 20, 2002, the appellate panel, took the Austria declined. Altmann then prepared to sue unexpected step of ordering Altmann and in Austria. Here, a major practical problem Austria to enter into mediation. This decision 111 INTERNATIONAL CIVIL LIBERTIES REPORT broke new ground. It is the first time that a Fifth Amendment claim because the plaintiffs federal appellate court had ordered a foreign were not American citizens (at least not at the nation to take part in mediation proceedings. time of the event), it also held that the other two Austria, however, was not ready to budge. Only claims were not time-barred, through the one mediation conference was held, after which principles of equitable tolling. Thus, plaitiffs the mediation unit at the Ninth Circuit informed will have an opportunity to proceed on the basis the judges that settlement efforts proved of the contract and international law claims. fruitless. The case was resubmitted to the three appellate judges for a decision and is still III. WORLD WAR II-ERA CLAIMS pending. AGAINST JAPANESE COMPANIES
E. The Case of the Hungarian The suits for Holocaust restitution have Gold Train now led to claims being filed against Japanese corporations for their use of captured soldiers The most recent addition to the and civilians as slaves during World War II. Holocaust-Era litigation is a case involving Aging victims of Japan’s wartime activities Hungarian Jewish assets that were intercepted began filing their lawsuits in American courts by the American army near the end of the war. only after seeing the successes achieved by their After the German invasion of Hungary in March counterparts in the Holocaust litigation. 1944, Jewish assets were seized in that country. Approximately 25,000 American In late 1944 and early 1945, these assets were prisoners of war were shipped to Japan and loaded into a train to be shipped to Germany. Japanese-occupied Asia to work for private The train was intercepted outside Salzburg, Japanese companies. See Linda Goetz Holmes, Austria by the U.S. Army on May 11, 1945. The Unjust Enrichment: How Japan’s Companies property was stored in Salzburg for time, but in Built Postwar Fortunes Using American POWs, 1946, the U.S. Government (despite claims to (Stackpole Books 2001), p. xvii. Additionally, the contrary from Hungarian survivors) declared the Japanese captured tens of thousands of it unidentifiable, and disbursed it in various British, Canadian, Australian and New ways that were unknown to the original owners Zealander soldiers, who also toiled as slave at the time or during the intervening years. laborers for Japanese industry, along with local In October 1999, however, a Chinese, Korean, Vietnamese and Philippine Presidential Advisory Commission released a civilians. These companies are now some of the report on the disposition of the train’s assets, largest corporate concerns in the world: and survivors and their heirs subsequently filed Mitsubishi, Mitsui, Nippon Steel, Kawasaki suit against the United States for reparations. Heavy Industries, and at least forty other The complaint alleged three causes of action: 1) Japanese corporations.5 an unconstitutional taking under the Fifth The first World War II Pacific Theatre Amendment, 2) breach of implied contract of restitution lawsuit was filed in July 1999, by bailment, and 3) violation of international law. former POW Ralph Levenberg against Nippon The U.S., no differently from the European Sharyo Ltd. and its U.S. subsidiary. Eventually, defendants, moved to dismiss based on lack of victims of Japanese slave labor filed over two- jurisdiction, failure of the plaintiffs to state a dozen lawsuits against numerous Japanese claim, and that the claims were time-barred. corporations that had employed slave labor On August 28, 2002, the District Court during the war. This litigation gravitated to for the Southern District of Florida issued its California, as a result of a state law enacted in first ruling in the case. Although it dismissed the July 1999, permitting an action by a “prisoner- 112 INTERNATIONAL CIVIL LIBERTIES REPORT of-war of the Nazi regime, its allies or under way. For the Japanese slave labor claims, sympathizers” to “recover compensation for however, the U.S. government not only sided labor performed as a Second World War slave with the Japanese companies, but, to date, has victim . . . from any entity or successor in failed to press Japan and its private industry to interest thereof, for whom that labor was recognize the same type of claims that it forced performed. The California statute extended the Germany and its private industry to resolve. limitations period for filing such lawsuits until Subsequently, the U.S. government filed 2010. two more Statements of Interest, urging that On September 21, 2000, Judge Walker cases filed by (1) alien civilians against private of the Northern District Court of California Japanese companies similar to the claims of the dismissed the lawsuits filed by American, allied POWs and (2) claims by sex slaves of the British, Australian and New Zealand POWs. In wartime Japanese army - the so-called “comfort re World War II Era Japanese Forced Labor women” - also be dismissed. In October 2001, Litigation, 114 F.Supp.2d 939 (N.D. Cal. 2000). federal district court in Washington, D.C., The court held that the United States, in the dismissed the lawsuit filed by the “comfort 1951 Peace Treaty with Japan, waived, on women” against Japan. All the cases are now behalf of itself and its nationals, all claims on appeal. arising out of actions taken by Japan and its As of August 2002, it appears that the nationals (including private Japanese restitution movement against the Japanese corporations) during the war. In September companies (and Japan) is not achieving the 2001, Judge Walker dismissed the claims of same favorable results as those achieved in the Chinese, Filipino and Korean civilian internees restitution movement launched against the as well. In a 44-page opinion, the court held European companies (and European that the California state law, Cal. Code of Civil governments) for their wartime activities. Procedure Section 354.6 authorizing such slave While millions of aging Jewish and non-Jewish labor claims in California courts, was survivors in the United States and abroad are unconstitutional as an infringement on the finally receiving some measure of justice for the powers of the federal government to conduct wrongs committed against them during World foreign policy. Without the aid of the California War II by European enterprises, aging POWS law extending the statute of limitations to 2010, and civilians who suffered at the hands of the the claims were time-barred. Japanese industry are being denied the same Critical to the court’s rulings was the treatment. appearance of the United States government in the litigation. In a Statement of Interest filed IV. INSURANCE CLAIMS ARISING with the court, the United States asserted that OUT OF THE ARMENIAN the above-quoted language of the 1951 Peace GENOCIDE Treaty barred claims of the Allied POWs. The court emphasized the “significant weight” to be During the Turkish Ottoman Empire, given to the U.S. government’s statement of Armenians and other minorities purchased interest. The position taken by the U.S. insurance policies from European and American government in the Japanese litigation differed insurance companies that had marketed their significantly from the position it took in the policies in the region. Many of the Armenian Holocaust litigation. In the Holocaust slave purchasers perished in the Armenian genocide labor litigation, the government only advised the during and after World War I. Their relatives, court that negotiations to compensate the former some of whom survived the genocide as young slave laborers of the German companies were children but are now quite elderly, sought 113 INTERNATIONAL CIVIL LIBERTIES REPORT payment from the insurers, claiming that subject of this action would be fundamentally payments was never made. unfair.” Marootian v. New York Life Ins. Co., The first, and to date only, lawsuit filed 2001 U.S. Dist. LEXIS 22274 [*53] (Nov. 30, on these insurance claims, Marootian v. New 2001). In June 2002, the case entered the York Life Ins. Co., was brought by twelve discovery stage, and trial is set to begin in elderly Armenians, all but one of whom resides spring 2003. in the United States, against the American insurance giant New York Life Insurance V. THE CALL FOR AFRICAN- Company. The insurance company did not AMERICAN REPARATIONS dispute that it sold such policies to the Armenian population in Ottoman Turkey. It One of the most interesting argued, however, that the suit should be consequences of the Holocaust restitution dismissed because all of the policies contained litigation has been to give fresh impetus to the forum selection clauses mandating that if a call for payments to African-Americans by the dispute ever arose about the policies, they would U.S. government for slavery which ended with be resolved either before French or English the Civil War. African-American Reparation courts. An additional problem was that policies proponents specifically point to the payments were written and allegedly unpaid almost a now being made for WWII-wrongs as precedent century ago, so New York Life could argue that for their cause. the lawsuits were time-barred. In 1999, prominent African-American In 2001, the California legislature activist Randall Robinson published The Debt, enacted a statute similar to the statutes it passed which forcefully argued for slavery reparations. in response to the World War II-era insurance The book’s theme, however, did not gain much and slave labor litigation. The statute, first, interest outside the African-American allows suits to collect premiums on Armenian community until Robinson and others began to genocide-era policies to be heard in California use the Holocaust restitution movement as a courts, despite the forum-selection clauses in the model for their cause. Robinson now was able policies, and, second, extends the limitations to entice superstar attorney Johnie Cochran to period of such suits to 2010. join the cause, and the talk now is of putting In an attempt at damage control, New together another “dream team” of lawyers – York Life tried to settle the case, offering $15 this time to file suit for African-American million. While the media initially reported that slavery restitution.6 the case settled for that amount, plaintiffs The call for African-American ultimately rejected New York Life’s offer as reparations presently has much momentum. being insufficient. The issue has been featured on all the major Failing to settle, New York Life pressed American television networks and lengthy and on with its motion to dismiss. In a significant incisive articles have been written about it, victory for plaintiffs, in December 2001, Los including a recent piece in the New York Times Angeles federal judge Christina Snyder denied and a cover story in the leading American law New York Life’s dismissal motion. In her magazine, the ABA Journal. Roots & decision, Judge Snyder held that, despite the Reparations, ABA Journal, November, 2000. English and French forum-selection clauses in In 2001, California enacted a law the policies, the case could be tried in federal forcing American insurance companies who court in California. “The Court finds that sold policies insuring slaves as chattel to enforcement of the forum-selection clauses in disclose information about such policies. Cal. the NYLIC life insurance policies which are the Insurance Code §§ 13811 - 13813. In May 114 INTERNATIONAL CIVIL LIBERTIES REPORT
2002, following the mandate of the California South Africa during the apartheid years and law, five American insurance companies directly benefited from the apartheid system. reported that they insured slaves: Aetna, Inc., Already, Fagan has allied himself with a group American International Group, Inc. (AIG), of South African lawyers, and this legal team Manhattan Life Insurance Company, New York filed a series of class action lawsuits in summer Life Insurance Company and Royal & Sun 2002 in federal court in New York and in Swiss Alliance. courts. Named as defendants are the Holocaust The first lawsuit was filed in March class action lawyers’ old nemeses: 2002 by Ed Fagan. Joining Deadria Farmer- Switzerland’s UBS and Credit Suisse; Paellmann, a 36-year-old long-time African- Germany’s Deutsche Bank, Dresdner Bank and American reparations activist and who in 2000 Commerz Banks; and also American corporate exposed Aetna’s slave insurance policies, Fagan giants Citibank and IBM. In a throwback to the filed his class action lawsuit in federal court in accusation made against IBM for its dealings Brooklyn. Farmer-Paellman, on behalf of with Nazi Germany, IBM is accused of herself and nearly forty million African- supplying South Africa with computer Americans in the United States, sued Aetna and technology as early as 1952 used to perpetuate two other name-brand corporations, Fleet the system of institutionalized racial Boston Financial Corp. and CSX Corp. (the discrimination and repression in apartheid South largest railroad on the East Coast), claiming Africa. In a repeat of the Holocaust restitution they profited from slave labor. Apparently, scenario, Hausfeld has aligned himself with Fleet and its predecessor, The Providence Bank, different group of South African lawyers and provided financing for the ships that brought the activists to pursue similar litigation. slaves to the New World. CSX’s predecessors The recently-filed South African used slaves to construct railways across the apartheid lawsuits are an example of a historical United States. The suit sought unspecified wrong that should not have to wait fifty years or damages, but Fagan and Farmer-Paellman longer for redress. Multinationals that benefited declared that they would be asking for $1.4 from the apartheid system as late as the 1980s trillion, the figure alleged to represent the are being sued now. current value of unpaid African-African slave labor and interest. The next month, the Fagan team filed a second lawsuit, in New Jersey federal court, adding as defendants New York Life, investment firm Brown Brothers Harriman & Co, and railroad Norfolk Southern Corporation. The reparation lawsuits seek to create a “Fund for the African-American People,” which can be used to ensure the existence of a vital African- American community in the future.
IV. REPARATIONS FROM APARTHEID SOUTH AFRICA
Victims of apartheid in South Africa are now seeking compensation from Swiss, German and American institutions who did business in 115 INTERNATIONAL CIVIL LIBERTIES REPORT
VII. LEX AMERICANA: OTHER say the cases “are similar because they involve MOVEMENTS ADOPTING THE not reparations but assets withheld through HOLOCAUST RESTITUTION alleged complicity of foreign governments and MODEL financial institutions.”
The new trend by governments and 2. Sudeten Germans – claims by Sudeten corporations to finally “come clean” about the Germans expelled from Czechoslovakia after wrongs they committed in the past would not be World War II as being “enemies of the occurring without the spotlight being shined on Czechoslovak people” for properties lost in the their activities through the lawsuits in the aftermath of their expulsion. These former United States. American law, in the words of Czechoslovakian citizens and their heirs,-- a Professor Burt Neuborne, has become Lex significant number of whom were Nazis or Americana, being imitated throughout the benefited from Nazi Germany’s occupation of world, with the Holocaust restitution cases Czechoslovakia and who were driven from becoming the leading model for victims and Czechoslovakia en masse at the end of World their representatives seeking to right past War II as revenge for the horrors of the Nazi wrongs. regime-- are claiming that, like Holocaust Currently, there are over a half-dozen survivors and heirs, they are likewise entitled to campaigns being waged in both the United compensation and restitution. For more info see States and abroad for recognition and some Sudetendeutche Landsmannschaft/Sudeten measure of compensation stemming from past German Heritage Union, at
3 INTERNATIONAL MONITOR, Aug. 2000, p. 1 , available at
4 Besides the former slave laborers, individuals upon whom the Nazis performed medical experiments also began receiving m oneys in 2002, most of whom also qualified for payments as slave laborers. Approximately 4,400 claimants sought compensation under the Medical Experiments portion of the Germ an Fun d. See 34 University of Richmond Law Review , 249-256 (medical experiments claims), 256- 258 (kinderheim claims).
5 The U.S. government-created Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group (“IWG”) is now searching through U.S. archives to ferret out, among other matters, information detailing the wartime activities of Japanese com panies. See
6 The formal name of the legal team is “The Reparations Coordinating Committee.” Tamar Levin, Calls for Slavery Restitution Getting Louder, New York Times, June 4, 2001, at 1. A sep arate legal team , the “Reparation s Litigation Committee,” established by the National Coalition of Blacks for Reparations in America (N’COBR A), is also
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13. The Cavallo Case and the Future of been had he worked elsewhere. Universal Jurisdiction One of the tasks Cavallo oversaw was the fabrication of false identification papers so By: Ellen L. Lutz and Naomi Roht-Arriaza* that military agents could travel freely. After he returned to civilian life, Cavallo turned this set The future of “universal jurisdiction” -- of skills into a career. His initial capital came the legal principle that allows the courts of any from money victims allege he and other Navy country to try perpetrators of certain horrendous officers garnered from the Argentine terror crimes no matter where they were committed.-- machine practice of forcing detainees and their may be decided not in Spain or Belgium where families to sign over deeds to property and bank most of the indictments have been brought, but accounts. With this stake, he and his associates by the Mexican Supreme Court. That Court will established a business, TALSUD, that obtained soon decide whether to extradite to Spain contracts with the governments of Bolivia, El Ricardo Miguel Cavallo, an Argentine citizen Salvador, Paraguay, Uruguay and Zaire to create accused of participating in over 200 cases of a variety of national licensing and vehicle torture and disappearances during that registration services. In 1999 a consortium country’s “dirty war” in the 1970s. Like headed by Talsud was awarded a contract to General Augusto Pinochet, Cavallo has been establish a national vehicle registry for Mexico. charged by Spanish Judge Baltazár Garzón with Automobile trafficking is a serious genocide, terrorism, and torture. criminal problem in Mexico. The government Cavallo worked at Argentina’s estimates that some two million of the notorious Navy Mechanics School -- called country’s fourteen million vehicles were ESMA after its Spanish initials -- run by a smuggled from the United States. Mexicans special task force under the command of regularly worry about car theft and feel that Argentine military junta leader Admiral Emilio police or other officials offer little recourse if Massera. Some 5000 of Argentina’s their vehicles are stolen. In the 1990s “disappeared” were held here. Cavallo’s jobs succeeding Mexican administrations embraced included locating and picking up those tagged privatization as a solution to Mexico’s for arrest by the machinery of terror, and later economic ills, and in 1998, President Ernesto supervising the “Fish Tank,” a part of the camp Zedillo convinced the Mexican Congress that it where those prisoners deemed susceptible to could cut costs and make it more difficult for “reeducation” worked as slave laborers stolen cars to be traded on the black market by repairing stolen electronic booty, clipping creating a national automobile registry that newspapers, or keeping the camp clean. would be contracted out to private Ironically, because Fish Tank prisoners were not entrepreneurs. killed, there were more ESMA survivors to The new enterprise, named RENAVE testify against Cavallo than there would have (the Spanish acronym for National Vehicle Registry), was controversial. It increased the fees Mexicans paid to register their cars, and in the waning days of the PRI government many * Ellen L. Lutz is the Executive Director of ordinary Mexicans suspected corruption. the Center for Human Rights & conflict Resolution at Moreover, registration entailed giving a lot of Tufts University’s Fletcher School of Law and personal information to the government. Diplomacy. Naomi Roht-Arriaza is a Professor of Skeptics of every political stripe speculated that Law at the University of California, Hastings College the whole operation was just a cover to facilitate of Law.
117 INTERNATIONAL CIVIL LIBERTIES REPORT the work of car theft rings. It also would be identification card Ricardo Miguel Cavallo had handy for money launderers who could register used to obtain his residency permit in Mexico. non-existent cars and then claim to sell them to Vales then reviewed the lists of known explain their sudden wealth. Many state and perpetrators that appeared in several books local governments refused to participate. published in the mid-1980s in Argentina. He Raul Ramos Tercero, Deputy Minister found one that listed a Miguel Angel Cavallo, of Mexico’s Ministry of Commerce and alias Serpico, or Marcelo, or Ricardo. After Industrial Development (SECOFI) was checking the photo with other former ESMA responsible for running a fair and open public prisoners, all of whom identified Cavallo, tender before awarding the RENAVE contract. Reforma decided to break the story of his true Long before Cavallo’s identity was revealed, identity competitors who lost out to the TALSUD On the day the story broke, the head of consortium cried foul. They claimed the the Mexican branch of INTERPOL, Juan process did not comport with the requirements Miguel Ponce Edmonson, read the Reforma of Mexico’s constitution, that ministers from story. Knowing that Spain was interested in other key cabinet ministries who sat on trying senior Argentine military officers RENAVE’s board did not attend the session at responsible for dirty war crimes, he decided to check the flights leaving that day for Argentina. which the winning consortium was selected, and He found that there was only one, via Cancun, that the TALSUD consortium was not the low and that Cavallo’s name was on the passenger bidder. Ramos retorted that while TALSUD list. Cavallo had used a false name in Mexico may not have been the lowest bidder, it was the and he was a serious flight risk. That was most innovative. The TALSUD-led consortium enough to arrest and hold him for 48 hours. was the only competitor to propose using smart Ponce ordered a deputy to intercept the flight in card technology to identify vehicles and Cancun and detain him. maintain a continuously updated database that Word of Cavallo’s arrest in Mexico provoked a not only could track a car’s ownership history, flurry of phone calls and e-mails between Spain, but increase the likelihood of collecting on tax Mexico, and Argentina. It was the 24th of payments and fine revenues. August, a Friday during the height of Europe’s To counter public and political summer vacation season. Judge Garzon, like resistance, SECOFI enlisted Cavallo to appear most of the lawyers involved in the Argentine in a series of television ads extolling the virtues and Chilean cases in Spain, was out of town. of RENAVE. Someone tipped off the editor of But after a tense twelve hours, Judge Ruíz the respected daily Mexican newspaper Reforma Polanco, the substitute judge on duty, signed a to look into the past of TALSUD and its warrant for Cavallo’s arrest and faxed it to director. José Vales, Reforma’s Buenos Aires Mexico. correspondent, began digging and in the Once he was in jail, rumors and archives of the Center for Legal and Social conspiracy theories began to swirl around the Studies (CELS), an Argentine think-tank started Cavallo affaire. The most widely-shared by human rights activists, he found an old photo involved a vendetta by the “dinosaur” old guard of someone named Miguel Angel Cavallo, taken in the 1970s by Victor Basterra, who had of the PRI that wanted to pay back then- worked in the false I.D. shop while an ESMA president Ernesto Zedillo for loosening up the prisoner.. The photo also had a number: -- political system and thereby losing the election 6,275,013 -- that matched the Argentine for the PRI. An alternative theory held that Cavallo was incidental to a fight over RENAVE
118 INTERNATIONAL CIVIL LIBERTIES REPORT among Zedillo’s ex-cabinet ministers, some of implications for Mexican sovereignty and its whom bitterly opposed privatizing more public relations with Argentina if Cavallo were services. Cavallo’s arrest was intended to sink extradited. At the same time, coming on the RENAVE. A third variant was that the whole heels of the Pinochet case, no one wanted matter was a fight between rival car theft rings, Mexico to be seen as harboring a Southern Cone one of which had ties to Cavallo. torturer. To decide how to proceed, they turned The rumors and conspiracy theories got to the calendar. Under the terms of Mexico’s a boost in the weeks following Cavallo’s arrest. extradition treaty with Spain, Spain had sixty Deputy Minister Raul Ramos Tercero, reacting days to explain the basis of its extradition to political unwillingness to participate in request. Cavallo then had three days to lodge RENAVE , claimed that powerful interests with any objections before the request then went much to lose if their lucrative car smuggling before a federal judge for a judicial opinion on operations were interrupted were behind popular whether it met the treaty’s requirements. Such opposition to RENAVE. Days after Cavallo’s an opinion necessarily would take time. That arrest, Interpol’s agent in Cancun, who carried opinion, however, was not binding on the out the arrest, was himself arrested on car theft Foreign Ministry, which could override it and charges. On September 6, Raul Ramos make its own determination. The Ministry’s Tercero’s body, with razor cuts to his throat, word was final, unless the defendant appealed to wrists and legs, was found on a forested hillside the courts on constitutional grounds. Zedillo’s on the outskirts of Mexico City. While the Foreign Ministry quickly determined that the death was ruled a suicide, some of the language judicial decision would not be handed down in the notes left skeptics wondering whether the until power had transferred to Vicente Fox and cause of Ramos’ death was being covered up as the PAN. They decided to step aside and leave well. matters to Mexico’s courts. If there was to be The fallout from Cavallo’s arrest any political fallout, it would come after they challenged President Zedillo’s lame duck were out of office. Once the formal request for extradition administration. Competitors who lost out in the arrived from Spain, Mexican Judge Jesús bidding claimed they had informed the Mexican Guadalupe Luna Altamirano, took up the case government of Cavallo’s past at the time the and in December 2000 issued a 345 page contract was awarded to the TALSUD-led opinion to allow Cavallo’s extradition on the consortium. Although the government claimed charges of genocide and terrorism, based on an that it had done an adequate background check extensive discussion of international law and on Cavallo’s business experience and had legitimacy of universal jurisdiction. He denied received letters supporting his reputation from jurisdiction for the torture charges on statute of the Argentine and Salvadoran governments, the limitations grounds. He found that at the time Mexican government took over RENAVE and the offense was committed the normal criminal canceled the consortium’s contract. In doing so statute of limitations applied. it became liable for millions of dollars in In February 2001, Vicente Fox’s damages to the consortium and vulnerable to Foreign Minister, Jorge Castaneda, approved lawsuits from other bidders as well. Cavallo’s extradition. In addition to backing Meanwhile, officials in Zedillo’s Judge Luna’s decision to allow the genocide Foreign Affairs ministry were torn about how to and terrorism charges, Castaneda reinstated the respond to Spain’s extradition request. Many torture charges, thereby allowing the case to go were uncomfortable about the potential
119 INTERNATIONAL CIVIL LIBERTIES REPORT forward in Spain on the easier-to-prove grounds human rights abuses took place. As the of torture. The Foreign Ministry decision refers Pinochet case demonstrates, no peaceful, extensively to both Mexico and Spain’s treaty democratic nation wants to appear incapable of commitments in the human rights area, but it rendering justice in cases in which its courts rests, at heart, on an interpretation of Mexican have primary jurisdiction. Even countries with criminal law involving the cumulation of amnesty or immunity laws are likely to find the offenses for purposes of calculating the statute legal means to try their own wrongdoers rather of limitations. than face the embarrassment of their trial Cavallo then filed a habeus corpus type abroad. of writ, known as amparo. Amparo is a mainstay of Mexican law that provides for judicial review of allegations that the state has violated an individual’s constitutional rights. Cavallo hired a new team of lawyers, including an Argentine criminal law specialist with close ties to the Argentine Navy. He began telling the press that if he went to Spain, he would take others down with him: it was not clear whether he meant his ex-military comrades in Argentina or his Mexican business associates, or both. After an intermediate court upheld Judge Luna’s ruling, the amparo case is now before the Mexican Supreme Court. If the Mexican Supreme Court decides to extradite Cavallo to Spain for trial, it will mark the first time any country has extradited a defendant solely pursuant to this legal principle, and could provide a substantial precedent for other countries. On the other hand, if the Court determines that he cannot be extradited, the decision – depending on how it is worded – could be a serious blow to the efforts of advocates and non-governmental human rights activists who are trying to persuade governments around the globe to adopt and use this jurisdictional theory. Universal jurisdiction, they argue, is the best means to ensure that torturers, genocidaires, and other rights violators at least suffer the stigma of being indicted by a court of law and the inconvenience of being restricted in their ability to travel. It also increases the likelihood that they will be tried and punished either in the courts of the country seeking extradition, or in the domestic courts in the country where the
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14. War on the Court: The International Assembly of States Parties, the body of ICC Criminal Court and U.S. Opposition member states, is engaged in the critical process of choosing the first judges and prosecutors for By: James Ross* the court. It is important that the strict set of criteria for the selection of prosecutors and Introduction judges -- requiring experts whose reputation, moral character and independence are beyond At a time when the United States is reproach. An immediate result of the U.S. seeking allies to fight international terrorism unwillingness to ratify the Rome Statute is that and calling for “regime change” in Iraq, the the United States can neither contribute judges Bush administration is conducting a relentless to the ICC nor have any say in who is appointed. diplomatic campaign against an institution The court is expected to be functioning by early designed to prosecute war criminals and 2003. Efforts are well underway in The Hague, perpetrators of crimes against humanity. The the site of the court, to have the physical International Criminal Court (ICC) is the most structure in place by the time the ICC is ready to significant development in the promotion of convene. international justice since the Nuremberg Tribunals after the Second World War. It is the Prosecuting the Most Serious Violators realization of a long sought goal to create a permanent judicial forum where the world’s International concern for the protection very worst violators of international law can be of fundamental human rights has grown brought to justice in a courtroom.1 immeasurably since the Second World War. The creation of the ICC should have International instruments such as the Universal been a moment of American triumph. Instead, Declaration of Human Rights and the four for the U.S. government, the ICC represents a Geneva Conventions of 1949 set out these rights dangerous foreign body seeking to impose its and obligations, but they provide no effective own brand of justice on American servicemen mechanism for enforcing them. Those and civilians, whether or not the United States is responsible for the most egregious crimes of the a party to the court, and wherever they happen last half-century have generally gone to be. This article will explore the jurisdiction unpunished by the international community. of the ICC and its procedures for ensuring the Only since the establishment of the ad hoc fair trial of defendants. It will examine the U.S. international tribunals for the former Yugoslavia government’s objections to the ICC -- and why and for Rwanda has there been an international they are of little merit. forum for prosecuting at least some war On April 11, 2002, the necessary sixty criminals. Now, with the creation of the ICC, countries had ratified the Rome Statute of the the problem of global impunity for the worst International Criminal Court (“the Rome violators of international law can be addressed Statute”) to bring the treaty into force.2 This more systematically. occurred far sooner than those present for the The ICC is a court of last resort. It was adoption of the controversial Statute in July never intended, nor will it have the resources, to 1998 had reason to expect. Currently, the handle a large number of cases. The ICC will have subject matter jurisdiction over war crimes, crimes against humanity and genocide, all of which are defined in the Rome Statute. In * James R oss is a Sen ior Legal Advisor with the future it may also have jurisdiction over Human Rights Watch
121 INTERNATIONAL CIVIL LIBERTIES REPORT crimes of aggression, once that crime is Decisions to investigate and prosecute adequately defined. Under what is known as the reside with the prosecutor of the ICC, with “principle of complementarity,” the ICC will important protections. All indictments by the only have jurisdiction over these offenses when ICC prosecutor require confirmation by a Pre- the member country where the crime took place Trial Chamber of Judges, which will examine is either unwilling or unable to bring its own the evidence supporting the indictment before it prosecution in national courts. This will both is issued. Both the accused and any concerned ensure that the number of cases reaching the countries will have the opportunity to appear ICC are small and that governments will still before the Pre-Trial Chamber to challenge the maintain the obligation and the right to bring to indictment. justice those responsible for the worst crimes on Under the Rome Statute, the UN their own soil and before their own courts. Security Council can refer cases to the ICC for investigation and prosecution. The Security ICC Jurisdiction Council can also delay prosecutions as well as advance them by asking the prosecutor to The most hotly debated issue suspend any case for twelve months if it feels surrounding the ICC has been the court’s that ICC proceedings would interfere with its jurisdiction. The court will not have retroactive own responsibilities to maintain international jurisdiction and the mechanism for instituting peace and security. It was this provision that investigations and prosecutions will have tight the United States reinterpreted to gain a Security external controls. Unlike previous international Council resolution, noted below, that provides a tribunals, including the ad hoc tribunals for the twelve-month suspension on any proceedings former Yugoslavia and Rwanda, the ICC against Americans who are UN peacekeepers -- emphasizes the primary role of national courts the first of several steps the United States has in the prosecution of war crimes and crimes taken to weaken the court since the Rome against humanity. Nevertheless, in its attempts Statute went into effect. to gain immunity from the court for U.S. The ICC will have subject matter nationals, both the Clinton and Bush jurisdiction over war crimes, crimes against administrations have ignored these important humanity and genocide. Crimes against safeguards against politically motivated humanity had never before been specified in an prosecutions. international treaty, so its detailed inclusion in The jurisdiction of the ICC began on the Rome Statute is an important addition to July 1, 2002, the day the Rome Statute entered international criminal law. The Convention on into force. Only crimes committed after that the Prevention and Punishment of the Crime of date are subject to the jurisdiction of the court. Genocide makes mention of an international Thus, major international crimes committed in penal tribunal for the prosecution of genocide, the past, whether by Idi Amin or the Khmer but never established one. The Rome Statute Rouge, are not subject to prosecution by the also broke new ground by codifying crimes of ICC. Past abusers can still be tried in ad hoc sexual and gender violence, including rape, tribunals, newly created special “mixed courts” sexual slavery and enforced prostitution, as (like the one being set up in Sierra Leone) or by subject to prosecution as war crimes and crimes any country willing to try cases of universal against humanity. jurisdiction (such as now being done in The ICC will have personal jurisdiction Belgium). over crimes committed by nationals of countries who have ratified the Rome Treaty or any
122 INTERNATIONAL CIVIL LIBERTIES REPORT person who commits such crimes in the territory themselves and thus forestall an ICC of a ratifying state. The court can prosecute all investigation. The Rome Statute envisions persons, regardless of their military or political efforts to bring national courts in countries that status. Crucially, current government officials, do not meet international fair trial standards up including heads of state or government, are to grade, so that they can obviate the need to subject to the court’s jurisdiction. remand cases to The Hague. These efforts to The United States has objected to the improve the administration of justice at the ICC’s jurisdiction extending to nationals of national level may prove to be one of the Rome governments who have not ratified the treaty, Statute’s most important contributions to namely the United States. Because the U.S. is international criminal justice. not a party to the Rome Statute, the ICC will only have jurisdiction over crimes committed on Trial Procedures and Due Process American soil if committed by a national of a member state. It will have jurisdiction over The ICC is designed to meet Americans who commit crimes on territories of international fair trial standards, such as those member states. Contrary to U.S. claims, there is found in article 14 of the International Covenant nothing unusual in this: U.S. nationals are on Civil and Political Rights. Like the ad hoc subject to the jurisdiction of foreign courts tribunals for the former Yugoslavia and whenever they travel abroad. This is a basic and Rwanda, the ICC contains an amalgam of civil well-established principle of international law. law and common law concepts. Regarding the An American who commits a crime in the admissibility of evidence, for instance, the ICC Netherlands, for example, can be tried by the will adopt the flexibility of the civil law system Dutch courts whether or not any special treaty and admit all relevant evidence which has exists between the United States and the probative value so long as there is no basis for Netherlands. exclusion. While the strict rules (and An important feature of the ICC is exceptions) on the exclusion of evidence found called the “principle of complementarity.” This in common law systems will not apply, the ICC means that the ICC does not have primary will exclude evidence obtained in violation of jurisdiction over national criminal courts, but the Rome Statute or internationally recognized rather is intended to complement them. States human rights if the violation casts substantial will retain the responsibility and duty to doubt on the evidence’s reliability or would prosecute the most serious international crimes. seriously damage the integrity of the Only when a state is “unwilling or unable proceedings. genuinely to carry out the investigation or Concerns for the due process rights of prosecution” and the case is of “sufficient the accused were an important consideration in gravity” will the ICC intervene. Rome Statute, the drafting of the Rome Statute. As a result the art. 17. That is, a good faith effort by a state to ICC contains an extensive list of due process investigate or prosecute a serious case will guarantees. While the Rwanda tribunal has deprive the court of jurisdiction. been beset by various problems both inside and Because the ICC is not intended to outside the courtroom, the tribunal for the replace national courts, they will remain the first former Yugoslavia has demonstrated that line of accountability for prosecuting war international courts can meet the highest crimes and crimes against humanity. One hope standards of due process protections. is that national courts will gain greater political The rights of defendants before the ICC leverage to prosecute international crimes track those found in the International Covenant
123 INTERNATIONAL CIVIL LIBERTIES REPORT on Civil and Political Rights, but the Rome subject to retribution. However, while the court Statute also provides greater clarity on can take certain measures to protect witnesses -- fundamental protections than can be found in such as holding parts of proceedings in camera the Covenant. These include: the presumption and withholding certain personal information of innocence, the right to counsel and to have where its disclosure would lead to the “grave adequate time and facilities to prepare a endangerment” of a witness or their family -- defense, the right to be present at trial, the right such measures must be taken “in a manner to present evidence and to confront witnesses, which is not prejudicial to or inconsistent with the right to remain silent, the right to have a the rights of the accused and a fair and impartial charge proved “beyond reasonable doubt,”the trial. Rome Statute, art. 68. protection against double jeopardy, and the right to appeal the proceedings to a higher body. U.S. Objections to the ICC Defendants will be provided counsel if they cannot afford one, as well as interpreters where The United States was one of only necessary. The ICC statute does not permit the seven nations to vote against the Rome Statute death penalty. According to former U.S. State in 1998, joining China, Iraq, Israel, Libya, Qatar Department legal advisor Monroe Leigh, the list and Yemen. By contrast, most U.S. allies, and of due process rights guaranteed by the Rome all NATO states except Turkey, have ratified the Statute are, if anything, more detailed and treaty. Near the end of his term in December comprehensive than those in the American Bill 2000, President Bill Clinton signed the Rome of Rights.3 Statute, recognizing that the U.S. Senate was The only significant due process right unlikely to ratify the treaty in the foreseeable afforded to defendants in the United States not future. On May 6, 2002 President Bush, in an available under the ICC is that of a jury trial. A unprecedented move, revoked (“unsigned”) the majority decision by a chamber of three judges U.S. signature on the statute.4 is needed to determine guilt or innocence (an The primary opposition of the United appeals chamber will consist of five appellate States to the Rome Statute is that the ICC might judges). Jury trials are not required under exercise its jurisdiction to conduct politically international human rights law -- they are not a motivated investigations and prosecutions of component of civil law justice systems. U.S. military personnel and political leaders. Empanelling a jury would not be practical in The Bush administration has argued cases before an international tribunal. The vociferously that as the world’s only United States has long recognized that fair trials superpower, jurisdiction over U.S. soldiers can be had without juries; for instance, the U.S. would limit America’s ability to become has concluded extradition treaties with countries involved in necessary military operations. This that explicitly permit U.S. nationals to be tried would prove dangerous not only for U.S. without a jury. national interests, but for other states, The Rome Statute also contains a particularly in Europe, that rely on U.S. military detailed provision on the protection of victims might to intervene in difficult situations. As and witnesses in the proceedings. This is noted, the statute’s safeguards against malicious especially important given the seriousness of the prosecution make this unlikely. Moreover, were crimes, including sexual violence and violence U.S. soldiers to be implicated in war crimes, the against children, the expected political U.S. military justice system would preempt any significance of ICC cases, and the likelihood intervention by the ICC. (The U.S. armed that many of those intending to testify might be forces’ ability to prosecute its own was recently
124 INTERNATIONAL CIVIL LIBERTIES REPORT demonstrated when two U.S. airmen were found ironclad exemption for all peacekeeping responsible for the accidental bombing deaths of operations, the Security Council approved a Canadian soldiers in Afghanistan.) Finally, U.S. limited, one-year exemption for personnel from troops have already been taking part in armed non-member states. The Security Council conflicts in an area under the jurisdiction of an expressed its intention to renew this exemption international tribunal. Thousands of U.S. forces on June 30 of next year. deployed in Bosnia and Kosovo have been Next, the United States, through its within the jurisdiction of the International diplomatic missions, has asked states around the Criminal Tribunal for the former Yugoslavia world to sign so-called Article 98 agreements (ICTY). With far fewer safeguards than the that would prohibit that state from surrendering ICC, and no requirement to defer investigations to the ICC any U.S. national who is being to national courts, the ICTY has acted sought by the court. Article 98 of the Rome responsibly. For instance, when the ICTY was Statute was designed to allow states parties the asked to review NATO bombing operations in first opportunity to try their own citizens for war Kosovo, it decided that there was no basis for crimes, even if those persons were apprehended proceeding with an investigation. in other states. The United States is attempting Unstated, but seemingly lurking behind to use this provision to provide immunity from the scenes is an obsession with a replay of the the ICC for its citizens around the globe. To “Kissinger scenario,” the ongoing targeting of date a handful of states have signed article 98 former Secretary of State Henry Kissinger for agreements with the United States, while several war crime prosecution before Belgium national others announced that they would not. The courts, which permit universal jurisdiction. European Union announced that it will not turn (Kissinger could not be subject to ICC American military personnel and officials over prosecution because the court does not have to the ICC so long as the U.S. guaranteed the retroactive jurisdiction.) suspects would be tried in U.S. courts. At the time of the revocation of the U.S. On August 3 President Bush signed into signature on the Rome Statute, the U.S. law the American Servicemembers’ Protection Ambassador-at-large for War Crimes Issues Act. Dubbed the “Hague Invasion Act,” the law Pierre-Richard Prosper stated that the United includes: a prohibition on U.S. cooperation with States was “not going to attack, assail, or wage the ICC; authorization for the President to “use war on the ICC.”5 But that has not proven to be all means necessary and appropriate” to free the case. Despite the U.S. government’s U.S. personnel detained or imprisoned by the expressed desire to generate support from allied ICC; the threat of withholding military aid to governments in the war against terrorism, the states that join the ICC (except NATO members administration has squandered considerable and other major allies); and the prohibition of effort and diplomatic good will to gain effective participating in UN peacekeeping operations immunity of U.S. nationals from the court’s unless U.S. personnel have immunity from the jurisdiction. ICC. This spring, the Bush administration It is very unlikely that a U.S. national negotiated a Security Counsel resolution to will ever be the subject of an ICC prosecution. provide a blanket exemption for U.S. personnel But the U.S. efforts to ensure immunity for its in UN peacekeeping missions and other UN nationals cannot be dismissed as unimportant or operations. After failed efforts to obtain another in the long list of examples of U.S. exemptions for the handful of Americans in East exceptionalism in the international realm. The Timor and Bosnia-Herzegovina, and then an overall aim of the Bush administration’s efforts
125 INTERNATIONAL CIVIL LIBERTIES REPORT are to create a two-tiered rule of law for international justice -- one that applies to Americans and a different one for the rest of the world. Without equal justice for all, through article 98 agreements or other means, the integrity of the ICC is likely to be undermined. The ability of the court to generate sufficient support from the international community to pursue goals that the U.S. claims it endorses, such as the prosecution of the world’s worst war criminals, will be severely hampered. Instead of promoting international justice, the United States has placed itself in the camp of the world’s future Pol Pots and Saddam Husseins -- those who have something to fear from a genuinely effective international criminal court.
Endnotes
1 Human Rights Watch has written extensively on the court. See generally http://www.hrw.org/ campaigns/icc/.
2 Rome Statute o f the International Criminal Court, U.N. D oc. A/C ONF.183/9 (July 17 , 1998), available at http://ww w.un.o rg/law/icc/statute/romefra.htm. A detailed article-by-article analysis of the provisions of the Rome Statute can be found in Commentary on the Rome Statute of the ICC, O. Triffterer, ed. (Nomos Verlagsgesellschaft 1999).
3 Monroe Leigh, "Th e United States and the Statute of Rome, 95 Am erican Journal of International Law 124, 131 (January 2001).
4 According to the Vienna Convention on the Law of Treaties, a state that has signed a treaty Ais obliged to refrain from acts which would defeat the object and purpose of a treaty Y until it shall have made its intention clear not to become a party to the treaty.@ Vienna Convention on the Law of Treaties, UN Doc A/Conf 39/28, UKTS 58 (1980), 8 ILM 679, art. 18.
5“US Abandons International Criminal Court Treaty,” Agence France-Presse, May 6, 2002.
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15. SUMMARY OF DEVELOPMENTS The United Nations Sub-Commission AT THE 53rd SESSION OF THE on the Promotion and Protection of Human UNITED NATIONS SUB- Rights (Sub-Commission) met at the Palais des COMMISSION ON THE Nations, the European Office of the UN in PROMOTION AND PROTECTION Geneva, Switzerland, from 30 July through 17 OF HUMAN RIGHTS August 2001 for its fifty-third session. The Sub-Commission is a subsidiary body of the UN By: David Weissbrodt, Bret Thiele, Mayra Commission on Human Rights (Commission) Gómez, and Muria Kruger* and is comprised of 26 independent human rights experts, elected by the Commission, who act in I. Introduction their personal capacity rather than as government representatives. Under the principle of geographic distribution, the Sub-Commission has seven members from Africa, five from Latin America, five from Asia, three from Eastern Europe, and six from the Western Europe and *David Weissbrodt, Fredrikson and Byron Professor of Law, University of Minnesota; Member, Other group of nations (including Australia, UN Sub-Commission on the Promotion and Canada, New Zealand, and the United States). Protection of Human Rights. The mandate of the Sub-Commission Bret Thiele, Legal Officer, Centre on includes human rights standard-setting and Housing Rights and Eviction s (COH RE); J.D . cum preparing studies of current human rights issues laude, University of Minnesota Law School, 1999. in all parts of the world. Because of its role in Mayra Gomez, Research Officer, Centre on Housing initiating action within the United Nations Rights and Evictions (COHRE); Ph.D., Department human rights system and its accessibility to non- of Sociology, University of Minnesota, 2001. governmental organizations (NGOs), each year Muria Kruger, J.D., magna cum laude, hundreds of human rights activists from scores University of Minnesota Law School, 2000 © 2002 D avid Weissbrodt, Bret Thiele, Mayra of countries travel to Geneva to attend and Gómez, & Muria Kruger. address the session of the Sub-Commission. The authors would like to thank Penny This year, 1,059 persons participated in the Sub- Parker, Joe “Chip” Pitts III, D. Christopher Decker, Commission session, including 726 NGO and Anne Johnston for their excellent work and representatives and 281 government observers. indispensable help during the 2001 Sub-Commission The Sub-Commission develops session. resolutions that are presented to, and are often This article is a sum mary of Dav id adopted by, the Commission on Human Rights. Weissbrodt, M ayra Gómez, Thiele, A Review of the Members of the Sub-Commission also prepare Fifty-Third Session of the United Nations Sub- working papers and comprehensive studies on Commission on the Promotion and Protection of Human Rights, 20 NETHERLANDS Q. OF HUM. RTS. -- human rights problems and issues. This year’s (June 2002). Readers should consult the full version session generated 24 resolutions and 22 for relevant citation s and other details not included in decisions. Since many treaties and other human this version. In particular, the sections o f the full rights instruments have been promulgated, the article pertaining the Sub-Commission’s working Sub-Commission has de-emphasized its groups have been omitted because of space standard-setting function and has given greater considerations. Readers should also consult the attention to developing strategies aimed at Report of the Sub-Commission on the Promotion and promotion, problem solving, implementation, Protection of Human Rights that is available as U.N. and the effective use of international pressure to Doc. E/CN.4/2002/2 (2002).
127 INTERNATIONAL CIVIL LIBERTIES REPORT improve human rights situations around the interaction with NGOs, its work on specific world. country situations, and the unique contributions At its fifty-third session the Sub- of its working groups. He also noted, however, Commission went through a substantial that the Sub-Commission had been challenged restructuring resulting from the reforms adopted to seek new ways to focus its efforts and make by the Commission at its fifty-sixth session in useful contributions to the promotion and April 2000. That restructuring was evident in protection of human rights. In addition, he the agenda of the 53rd session, which was indicated that the Sub-Commission can continue substantially revised and rationalised for the to play a unique role within the United Nations first time in many years. The agenda for the by cooperating more closely with the treaty fifty-third session contained only seven agenda bodies, and in particular by responding to their items as opposed to the fourteen agenda items requests for substantive studies of pressing discussed in previous years. This year, the Sub- human rights issues. To complete this year’s Commission had specific agenda items under Bureau, the Sub-Commission elected Mr. Paulo which it discussed human rights situations in Sergio Pinheiro (expert from Brazil), Mr. Soo various countries; the administration of justice; Gil Park (expert from the Republic of Korea), economic, social, and cultural rights; and the and Mr. Stanislav Ogurtsov (expert from prevention of discrimination and protection of Belarus) to be Vice-Chairpersons; and Mr. indigenous peoples and minorities. Godfrey Bayour Preware (expert from Nigeria) Additionally, the agenda included an item on to serve as the Rapporteur. “Other Human Rights Issues” under which a The High Commissioner for Human range of human rights concerns and studies Rights, Ms. Mary Robinson, addressed the Sub- were discussed. Gone from previous agendas Commission during its first meeting on 30 July were specific items on the implementation of 2001. In her statement, the High Commissioner human rights of women, contemporary forms of acknowledged her gratitude for the unique slavery, the rights of children and youth, and contribution that the Sub-Commission has made freedom of movement. Most of these topics, and continues to make not only to the United however, were addressed under the “Other Nations but also to the world community. By Human Rights Issues” item. The prevention of means of example, she mentioned past discrimination, the rights of indigenous peoples, accomplishments such as the elaboration of and protection of minorities, until this year international standards, the development of a addressed under separate agenda items, were better understanding of human rights through combined into one agenda item. the study of important issues, the role the Sub- Each year the Sub-Commission elects a Commission has played in the creation of new Bureau with one representative from each thematic mechanisms of the Commission on regional group to lead the session. At this Human Rights, as well as the role it has played year’s session the Sub-Commission elected Mr. in preventing violations throughout the world. David Weissbrodt (expert from the United She also noted the valuable contribution that States) as Chairperson. It was the first time in NGOs have made to the successes of the Sub- the history of the Sub-Commission that a U.S. Commission. citizen was elected to serve as Chairperson. In The High Commissioner thanked the his opening address to the Sub-Commission, Sub-Commission for the strong role it has Mr. Weissbrodt recalled the many contributions played with respect to the struggle against the Sub-Commission has made over the years to racism, racial discrimination and xenophobia, advance human rights, including its close and noted that the Sub-Commission should be
128 INTERNATIONAL CIVIL LIBERTIES REPORT proud of the role it had in making the World fostered and a “question and answer” format Conference Against Racism a reality. She also was used particularly during the early part of the took time to note the work of the Sub- session when there was sufficient time. The Commission’s thematic working groups, Sub-Commission held a closed joint meeting specifically recognizing the contributions of the with the Expanded Bureau of the fifty-seventh Working Group on Minorities, the Working session of the Commission on Human Rights, at Group on Indigenous Populations, and the which they exchanged views aimed at Working Group on Contemporary Forms of improving co-operation between the two organs. Slavery. With respect to economic, social, and The participants agreed to hold similar closed cultural rights, she reaffirmed the need to ensure meetings on an annual basis. The Sub- that globalisation becomes a positive force for Commission avoided a lengthy and unnecessary all the world’s people, and that the Sub- procedural debate in public on its working rules, Commission has been called upon to help procedures, and timetable at the very beginning achieve that objective through a comprehensive of its annual session by holding that discussion examination of the impact of globalisation on in a private meeting. In addition, to the extent human rights as well as the establishment of a there was sufficient time available, the Sub- Social Forum to create dialogue and exchange Commission drafted many of its resolutions in on this important topic. private sessions rather than engage in the Ms. Robinson also welcomed the spectacle of the public drafting of resolutions by progress of the Sessional Working Group on the such a large group. Further innovative reforms Working Methods and Activities of included the Bureau inviting authors of working Transnational Corporations, and in particular papers and comprehensive studies, as well as the elaboration of human rights guidelines for chairpersons of working groups, to meet all business enterprises. She pointed out that informally with interested parties for more open corporations, their managers, and their and less formal discussions regarding their personnel have a strong duty to abide by the work. The Chairperson met regularly with Universal Declaration of Human Rights and NGOs at the beginning of each week of the other international human rights principles in session to discuss the Sub-Commission’s the course of their activities and she encouraged progress. The Sub-Commission continued the further definition of that duty and progress on tradition of the past three years in starting its the human rights guidelines for companies. sessions promptly for each meeting and was able for the first time in many years to manage II. Innovative Procedural Reforms its debates so that there was no need to diminish the speaking time of observers towards the end This year the Bureau experimented with of the session. The Sub-Commission found a a number of procedural reforms in an effort to balanced approach to discouraging government enhance the efficiency and effectiveness of the criticisms of other governments that may belong Sub-Commission. Those reforms were in the context of the intergovernmental generally well received by members and Commission, but are not generally appropriate observers of the Sub-Commission alike. For in an expert body such as the Sub-Commission. instance, debates on each agenda item were Furthermore, for the first time the Sub- restructured around reports, working papers, and Commission Chairperson was authorized to substantive issues, so that there was some discourage personal attacks upon any participant cohesiveness to the Sub-Commission’s and that authority was occasionally used. deliberations. Inter-active discussions were
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A. Debate on Reparations and Sub-Commission members generally the World Conference Against agreed that their comments should be Racism transmitted to the Prep. Comm. It was eventually decided that the sentiments of the On 1 August, after the list of speakers Sub-Commission should be transmitted in the under agenda Item 2 (violations of human form of a resolution that addressed rights) was exhausted, the Chairperson used the responsibility and reparation for massive and opportunity to open the floor for a general flagrant violations of human rights which dialogue. This spontaneous discussion proved constitute crimes against humanity and which to be one of the more engaging to occur at this took place during the period of slavery and of year’s session. Mr. El-Hadji Guissé (expert colonialism, as well as during wars of conquest. from Senegal) raised the topic of reparations for On 6 August a resolution was adopted and slavery, the slave trade, and colonialism. Other relayed to the Prep. Comm. by Mr. Paulo Sergio members soon joined the discussion, many of Pinheiro (expert from Brazil), the Sub- whom noted that the Preparatory Committee Commission’s representative at the World (Prep. Comm.) for the World Conference Conference. The resolution, inter alia, against Racism was meeting in the Palais des suggested various means of reparation including Nations at that very time. co-operation in development of affected As for slavery and the slave trade, there peoples, debt cancellation, implementation of were differences of opinion among members of the “Tobin tax,” technology transfers, and the Sub-Commission with respect to the restoration of cultural objects. In the resolution, appropriate scope of reparations. For example, the Sub-Commission stated that it was some members believed that there should be a “convinced that such recognition and reparation time limit imposed whereby only victims who will constitute the beginning of a process that are presently living or their next-of-kin should will foster the institution of an indispensable receive compensation. Similarly, some sought dialogue between peoples whom history has put to limit reparations for acts that were considered in conflict for the achievement of a world of crimes at the time they were committed, arguing understanding, tolerance and peace.” that to do otherwise would be to impose ex post facto legal obligations. Others countered, I. The Sub-Commission’s Debate on however, that slavery and the slave trade Country Situations resulted in the theft of wealth from colonised regions of the world, which continues to have The Commission decided in April 2000 present consequences for residents and to “approve and implement comprehensively governments of those regions many years later. and in its entirety” the report of its inter- Additionally, it was argued that slavery and the sessional open-ended Working Group on slave trade constituted crimes against humanity Enhancing the Effectiveness of the Mechanisms when they occurred. of the Commission on Human Rights. That Turning to the topic of colonialism, report recommended a series of significant many agreed that debt relief offered by former changes that, for the past two sessions, have colonial powers toward their former colonies altered the ways in which the Sub-Commission should be explored as a kind of reparation. considers specific country situations. Namely, Such a suggestion, it was contended, would link that report recommended that while the past wrongdoings and present consequences. Sub-Commission should continue to debate country situations not being dealt with by the
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Commission, and while it should also be resolutions, but rather in an unprecedented allowed to discuss urgent matters involving series of Chair statements accompanied by serious violations of human rights in any concrete commitments voiced and put on the country, the Sub-Commission should not adopt public record by various governments to country-specific resolutions. In addition, the improve the human rights situations within their Commission’s Working Group recommended respective nations. In using this approach, the that the Sub-Commission refrain from Sub-Commission was able to show its negotiating and adopting thematic resolutions ingenuity, expertise, and competence by that contain references to specific countries. addressing some of the most severe human With the decision by the Commission to rights situations in the world and, more implement its Working Group report and the importantly, by achieving tangible results. subsequent approval by ECOSOC, those recommendations became directives to the Sub- In many cases, government Commission. representatives took negotiations seriously because it was in their interest to avoid a Sub- A. Review of Past Work Commission resolution that would draw Addressing Country-Specific international attention to their particular human Situations rights situation. One example of a successful negotiation occurred in 1998, when the Sub- Prior to the Commission decision to Commission had before it a draft resolution on alter the working methods of the Sub- the human rights situation in Bahrain. While Commission vis-à-vis specific country the Sub-Commission did not end up adopting situations, the Sub-Commission had for many this resolution, during the process of negotiation years adopted resolutions identifying at least a the Government of Bahrain agreed to remove its few countries in which human rights situations reservations under the Convention Against required expressions of UN concern. In the Torture and Other Cruel, Inhuman or Degrading recent past, the Sub-Commission took action Treatment or Punishment. The Government of with regard to human rights violations in Bahrain agreed also to allow the UN Working Bahrain, Belarus, the Congo (Kinshasa), the Group on Arbitrary Detention to visit the Democratic People’s Republic of Korea, country. It is unlikely that even this modest Mexico, Peru, and Togo – all nations that had success would have occurred had the Sub- not been the subject of significant Commission Commission been unable to adopt a resolution attention, but where serious human rights on Bahrain. Now that the capacity to adopt problems had arisen. In 1999, for example, the country resolutions has been taken away, the Sub-Commission continued to refine its capacity of the Sub-Commission to do concrete approach on country matters and took important and effective work has been reduced. steps towards developing strategic uses for draft resolutions. It was noted that the ability to B. The Importance of Country prepare draft resolutions on country situations Specific Resolutions was a very effective means of attaining leverage that helped to encourage a constructive dialogue There are a number of reasons why the and negotiation between the Sub-Commission use of country specific resolutions by the Sub- and governments responsible for human rights Commission has been of value to the violations. That approach resulted, not in a international human rights community. First large number of adopted country-specific and foremost, as indicated above, when handled
131 INTERNATIONAL CIVIL LIBERTIES REPORT appropriately, country resolutions, Chair visibility on both thematic and country-specific statements, and even mentioning a particular human rights concerns. The resulting situation (e.g., in Tunisia) have proved transparency has helped ensure not only the successful as tools for persuading governments Sub-Commission’s effectiveness, but also has to undertake human rights improvements. given human rights situations much-needed Second, the Sub-Commission provided an visibility. Third, because the Commission opportunity to address developing human rights cannot possibly, for political and/or practical crises or emergency situations immediately as reasons, shed light on all countries in which opposed to waiting for the Commission’s next there are severe and consistent patterns of session, which may be up to seven months human rights abuse, the Sub-Commission has away. After all, within 30 days after the Sub- used country specific resolutions to help Commission session ended the world had identify and place pressure on those countries dramatically changed – with the close of the which may have otherwise been forgotten or World Conference against Racism and the overlooked by other human rights bodies. attacks of September 11th. World Fourth, the Sub-Commission provided an developments move so fast that it is important opportunity to address developing human rights for the Sub-Commission to respond to the crises or emergency situations immediately as contemporaneous events. Third, because opposed to waiting for the Commission’s next country work has attracted the attention of session, which may be up to seven months governments, inter-governmental organizations, away. Fifth, the Sub-Commission should be and NGOs, it has maintained a high degree of able to apply its expertise to particular visibility on both thematic and country-specific situations. human rights concerns. The resulting In 2001, Mr. Louis Joinet (expert from transparency has helped ensure not only the France) presented an especially noteworthy Sub-Commission’s effectiveness, but also has intervention before the Sub-Commission, given human rights situations much-needed highlighting that the Sub-Commission had in visibility. Fourth, because the Commission the past taken several positive initiatives cannot possibly, for political and/or practical relating to country situations. In particular, Mr. reasons, shed light on all countries in which Joinet drew attention to the previous work of the there are severe and consistent patterns of Sub-Commission with regard to the human human rights abuse, the Sub-Commission has rights situations in Togo, Bahrain, Peru, and the used country specific resolutions to help Democratic People’s Republic of Korea. identify and place pressure on those countries In the case of Togo, Mr. Joinet noted which may have otherwise been forgotten or that in 1999 the Sub-Commission had drafted a overlooked by other human rights bodies. Fifth, resolution addressing the reported the Sub-Commission should be able to apply its disappearance of dozens of persons within expertise to particular situations. First and Togo. Mr. Joinet told the Sub-Commission that foremost, as indicated above, when handled a Minister from the Togolese Government had appropriately, country resolutions have proved phoned him on several occasions asking him to most successful as tools to gain leverage in the withdraw the resolution. Yet, in the end, Mr. context of persuading governments to undertake Joinet noted that a fruitful dialogue had resulted human rights improvements. Second, because between the Sub-Commission and the Togolese country work has attracted the attention of Government; Togolese officials became governments, inter-governmental organizations, increasingly engaged with the Sub-Commission, and NGOs, it has maintained a high degree of a Chairperson’s statement was adopted in lieu of
132 INTERNATIONAL CIVIL LIBERTIES REPORT the original resolution, and a joint UN-OAU to adopt country resolutions, it was also able (Organization of African Unity) mission was successfully to negotiate with the established to look into violations of human representatives of several countries in order to rights in Togo. In the end, it had been a produce tangible, positive results in the area of constructive process and a final report on the human rights. The Sub-Commission was able to situation was produced. pursue a range of strategies when addressing In the case of Bahrain, a resolution was country situations and these tools provided the similarly proposed and withdrawn after Sub-Commission with a degree of flexibility constructive negotiations with the Government. and versatility in dealing with country Mr. Joinet told the Sub-Commission that since situations, and therefore allowed the Sub- that time, important political changes have taken Commission to enhance the scope and place within Bahrain, and the Sub-Commission effectiveness of its work. Unfortunately, the played an important role in pressuring for Sub-Commission is now discouraged from positive reforms. In the case of Peru, Mr. Joinet adopting country specific resolutions and is thus noted that he had drafted a simple resolution less able to replicate the results it has achieved requesting that impunity not be extended to all in the past. The inability to pursue country cases under the laws of that country. At first, work openly and diligently has significantly there was a very sharp response from the hampered the Sub-Commission’s ability to Government, but then a more substantive review promote and protect human rights around the of the situation began. Mr. Joinet reminded the world. Sub-Commission that the Working Group on Regardless of these limitations, Arbitrary Detention went to investigate the however, the debate at the Sub-Commission conditions of detention within the country, and concerning country situations continues to be that there had been excellent co-operation with vibrant. As Ms. Françoise Hampson (expert the Government. from the United Kingdom) pointed out during With the Democratic People’s Republic this year’s session, while “some might argue of Korea (DPRK), the Sub-Commission had for that there was no reason for the Sub- several years adopted resolutions addressing the Commission to continue its discussion of situation of human rights in that country, and violations in specific countries if it could no many times the Government had reacted sharply longer pass resolutions on the matter,” she – even threatening to withdraw from the disagreed, noting that, “silence is the best friend International Covenant on Civil and Political of human rights violations.” Rights. But ultimately, Mr. Joinet pointed out, To summarize the Item 2 debate itself, there was in fact a dialogue. Mr. Joinet stated there was some discussion of new, urgent that he himself had met with many matters involving serious violations of human representatives of the DPRK, and he recently rights in countries that were also under learned that the Government had sent its consideration in the Commission. Accordingly, periodic report under the Civil and Political Ms. Hampson raised the issue of the recent, Covenant. The DPRK has also taken some serious escalation of violence in the Israeli- timid positive steps in terms of establishing occupied territories. In addition two NGOs diplomatic relations with other countries and raised concerns about developments in the recently there have been meetings between the occupied territories. NGOs also brought to the leaders of the DPRK and the Republic of Korea. attention of the Sub-Commission new As Mr. Joinet was able to point out, developments in both Afghanistan and the because the Sub-Commission had the authority Chechen Republic of the Russian Federation.
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With regard to country situations not In the end, the Sub-Commission did currently being dealt with in the Commission, adopt two resolutions and two decisions that, members of the Sub-Commission addressed arguably, related specifically to particular human rights concerns in regard to Angola, country situations. A resolution on the situation Bhutan, Brazil, China, the Democratic People’s of women and girls in territories controlled by Republic of Korea, the detention of aliens Afghan armed groups raised the issue as to throughout Europe, the demonstrations against whether or not it was within the limits of the the G-8 meetings and the alleged police Commission’s decision for the Sub-Commission brutality in Genoa, Italy, as well as situations in to make reference to a particular country France, Cyprus, Greece, Guatemala, Indonesia, situation under certain circumstances. As in the Ivory Coast, Jammu and Kashmir, Japan, 2000, the principal sponsor of that resolution, Liberia, Marshall Islands, Mexico, Nepal, the Ms. Halima Warzazi (expert from Morocco), Philippines, Russia, Saudi Arabia, Sri Lanka, drafted the resolution so as to make reference to Tanzania, United Kingdom (Northern Ireland), territories controlled by Afghan armed groups and the United States. rather than to name Afghanistan explicitly. NGOs added concerns during the debate Although some Sub-Commission members about Algeria, Belarus, Bhutan, Brazil, expressed doubt as to whether this action was Cameroon, Egypt, Guatemala, India (Jammu & permitted, others noted the urgency of the Kashmir), Indonesia (as to the Moluccas), situation and that the Commission had not Japan, Malaysia, Mexico, Nepal, Pakistan, the expressly disapproved of previous Sub- Philippines, Saudi Arabia, Tunisia, Turkey, the Commission resolutions on this subject. United States (as to military operations in Despite the doubts expressed by some Sub- Vieques, Puerto Rico), Uzbekistan, and Western Commission members, they were unwilling to Sahara. Furthermore, written statements break consensus and the resolution on the submitted by NGOs under this agenda item, “Situation of women and girls in territories included allegations concerning violations controlled by Afghan armed groups” was against Tibetans in China, as well as concerns in adopted without a vote. This resolution voiced India, Northern Uganda, and Peru. In addition, deep concern over the plight of women and girls a detailed NGO statement filed under this in Afghanistan and encouraged the international agenda item identified alleged caste community to “continue to follow very closely discrimination practices in Bangladesh, Burkina the situation of women and girls in the Faso, Burundi, Cameroon, Egypt, Guinea, territories controlled by Afghan armed groups Japan, Mali, Mauritania, Mauritius, and Nepal. and bring the necessary pressure to bear so that Eleven government observers spoke all the restrictions imposed on women, which during Item 2, including Algeria, Azerbaijan, constitute flagrant and systematic violations of Bahrain, Bhutan, Democratic People’s Republic all the internationally recognized economic, of Korea, Egypt, Indonesia, Iraq, Malaysia, social, cultural, civil and political rights, are Pakistan, and Turkey. Of these 11 governments, removed.” In addition, the resolution five spoke in right of reply and Bahrain, Bhutan, congratulated United Nations agencies and Pakistan, and Turkey took the opportunity NGOs on “ . . . the measures and programmes during their interventions to announce major adopted with a view to lending support and new reforms on human rights initiatives during assistance to women and girls in the territories the past year, and commitments to continued controlled by Afghan armed groups and strongly implementation of these and other human rights encourages them to continue their efforts changes. despite the difficulties encountered.”
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Similarly, the Sub-Commission adopted events during World War II in encouraging a decision, without a vote, addressing the human “States to promote human rights education on rights situation of the Iraqi population. The the issues of systematic rape, sexual slavery and decision principally focused on the grave slavery-like practices during armed conflicts, humanitarian consequences of the sanctions ensuring the accuracy of accounts of historical regime imposed upon Iraq and did not criticize events, in the educational curricula.” directly the Iraqi Government or any Further, the Sub-Commission adopted a government supporting the sanctions, but did decision on discrimination based on work and recognize the role of sanctioning governments descent. The decision arose from the Sub- and the Iraqi Government in the ongoing Commission’s consideration of a working paper humanitarian crisis facing that population. For presented by Mr. Rajendra Kalindas Wimala instance, the decision urged “the international Goonesekere (expert from Sri Lanka). He community and all Governments, including that observed that discrimination based on work and of Iraq, to alleviate the suffering of the Iraqi descent, often associated with caste systems, is population, in particular by facilitating the particularly prevalent in certain countries. delivery of food, medical supplies and the Indeed, Mr. Goonesekere’s report noted that wherewithal to meet their basic needs.” “the most widespread discrimination on the Through this decision the Sub-Commission basis of work and descent occurs in societies in once again appealed “to the international which at least a portion of the population is community, and to the Security Council in influenced by the tradition of caste, including particular, for the embargo provisions affecting the Asian countries of Bangladesh, India, Nepal, the humanitarian situation of the population of Pakistan, and Sri Lanka.” The report examined Iraq to be lifted.” five specific countries -- India, Sri Lanka, A resolution on “Systematic rape, Nepal, Japan, and Pakistan. The report sexual slavery and slavery-like practices” was generated a lively discussion and the Sub- also adopted without a vote. While this Commission ultimately authorized Mr. resolution was partly inspired by the plight of Goonesekere to prepare “an expanded working the “comfort women” who were held in sexual paper on the topic of discrimination based on slavery by the Japanese army during World War work and descent in other regions of the world” II, the resolution did not identify Japan by for presentation to the Sub-Commission in name. Rather, the resolution dealt thematically 2002. One possible implication of the decision with the issue of sexual slavery, and expressed was that Mr. Goonesekere should focus on deep concern not only about past abuses, such countries other than the five he had chosen to as those suffered by the “comfort women,” but consider in his first report. also noted that “systematic rape, sexual slavery and slavery-like practices are still being used to IV. Realization of Economic, Social, and humiliate civilians and military personnel, to Cultural Rights including the Right to destroy society and diminish prospects for a Development peaceful resolution of conflicts,” and “that the resulting severe physical and psychological A. The Social Forum trauma endanger not only personal recovery but post-conflict reconstruction of the whole This year the Sub-Commission devoted society.” The resolution also reflected the a day to a discussion on plans for holding the controversy presently occurring as to the first Social Forum during the Sub- accuracy of Japanese textbooks portraying Commission’s fifty-fourth session in August
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2002. The first half of the day was used to the discussion included Paul Hunt, Special allow Sub-Commission members, NGO and Rapporteur of the Committee on Economic, government representatives, and other interested Social and Cultural Rights; Alfredo Sfeir- parties to discuss the role the Social Forum will Younis, Special Representative of the World play while the afternoon meeting involved a Bank to the United Nations and the World Trade panel discussion on the same topic by high-level Organization; Miloon Kothari, Special experts. Rapporteur on Adequate Housing of the Mr. José Bengoa (expert from Chile) Commission on Human Rights; Lee Swepston has been the principal advocate for the Social of the International Labour Organization; and Forum. He began the discussion by saying that Patricia Feeney of Oxfam. the Forum should focus on globalisation, free Most of the participants mentioned that trade, and threats to poor countries in the labour the Social Forum needed to fill a unique niche markets. He stressed that a key objective of the and to avoid duplicating the work of other UN Social Forum should be to achieve an effective bodies. Ms. Jilani and Mr. Ricupero thought incorporation of economic, social, and cultural that the Social Forum might ameliorate the rights into a global policy, to create partnerships present practice of governments making between private enterprise and international important decisions without consulting, or even financial institutions to help economic allowing information to reach, their respective development, to enhance consideration of the constituents. The Social Forum might also environmental aspects and responsibilities of consider whether international human rights law globalisation, to increase social accountability, binds international organizations, such as the and especially to set up a process whereby the World Bank, the International Monetary Fund, effects of economic globalisation would be and the World Trade Organization. Mr. considered in advance, before policies were Clapham noted that under international law, established, so as to ensure that their positive intergovernmental organizations are bound by effects were shared equitably between the such international law, as are the States that developing and developed world, and to ensure comprise and are the homes of such institutions. that their negative effects on vulnerable He stressed that international financial populations were reduced. institutions should consider the human rights For the first time in its history the Sub- impact of their activities and include persons Commission held a special debate involving a potentially affected by their activities in their panel discussion of outside experts. The panel decision-making processes. The representative discussion to select the principal topics for next of the International Monetary Fund (IMF) and year’s forum modeled the innovative approach World Bank believed, however, that the Social Forum is expected to pursue. The international human rights law does not bind panel of high-level experts this year included those institutions. Hina Jilani, UN Special Representative of the Mr. Clapham envisioned the Social Secretary-General on the Situation of Human Forum as providing a context in which Rights Defenders; George Abi Saab, a Member government officials representing States at of the World Trade Organization’s Dispute international financial institutions and Settlement Body; Andrew Clapham, a Professor government officials representing States at at the Graduate Institute of International Studies human rights bodies could better connect and in Geneva; and Rubens Ricupero, Secretary- thereby bring human rights concerns into the General of the United States Conference on decision-making processes of the financial Trade and Development. Other participants in institutions. Several other participants agreed
136 INTERNATIONAL CIVIL LIBERTIES REPORT that the Social Forum should fulfil a unique role consequences on equality and non- by bringing together all international actors that discrimination at the national and international affect economic and social rights so that they levels; (4) analysis of international decisions can better work towards achieving the UN’s affecting basic resources for the population, and overarching goals, including the eradication of in particular those affecting enjoyment of the poverty and the promotion and protection of right to food, the right to education, the right to human rights. the highest attainable standard of physical and After considering all the comments and mental health, the right to adequate housing and suggestions arising out of this preparatory the right to an adequate standard of living; (5) meeting, the Sub-Commission adopted a analysis of the impact of international trade, resolution on the Social Forum. Most finance and economic policies on vulnerable importantly, the Sub-Commission decided that groups, especially minorities, indigenous the principal issue for the first session of the peoples, migrants, refugees and internally Social Forum in 2002 should be: “The displaced persons, women, children, older relationship between poverty reduction and the persons, people living with HIV/AIDS, people realization of the right to food.” The Sub- living with disabilities and other social sectors Commission also indicated that the mandate of affected by such measure; (6) the impact of the Social Forum will be (1) “to exchange public and private, multilateral and bilateral information on the enjoyment of economic, international development cooperation on the social and cultural rights and their relationship realization of economic, social and cultural with the processes of globalization”; (2) “to rights; (7) follow-up of agreements reached at follow up on situations of poverty and world conferences and international summits, destitution throughout the world”; (3) “to particularly the Copenhagen World Summit for propose standards and initiatives of a juridical Social Development, and in other international nature, guidelines and other recommendations bodies, concerning the link between economic, for consideration by the Commission on Human commercial and financial issues and the full Rights, the working groups on the right to realization of human rights; and (8) social and development, the Committee on Economic, economic indicators and their role in the Social and Cultural Rights, the specialized realization of economic, social and cultural agencies and other organs of the United Nations rights. system”; and (4) “to follow up the agreements Importantly, the resolution also reached at the major world conferences and the extended an invitation to participate not only to Millennium Summit, and to make contributions NGOs in consultative status with the UN, but to to forthcoming major international events and other NGOs and particularly to newly emerging discussion of issues related to the mandate of actors in the South, such as grass-roots the Social Forum.” organizations, community organisations, trade The resolution also set forth various unions and associations of workers, themes to be addressed by the Social Forum in representatives of the private sector, and others. future years, including (1) the interaction If the attention paid to the Social Forum at this between civil and political and economic, social year’s meeting is any indication, there should be and cultural rights; (2) the relationship between a very lively debate with respect to how poverty, extreme poverty and human rights in a economic, social, and cultural rights can and globalized world; (3) the effect of international should be promoted and protected in a trade, finance and economic policies on income globalising world when the Social Forum distribution, and the corresponding convenes next year for its first substantive
137 INTERNATIONAL CIVIL LIBERTIES REPORT meeting. In April 2002 the Commission on August 1998, the Sub-Commission established a Human Rights accepted the Sub-Commission’s sessional working group to examine the proposal that the Social Forum be held for two methods and activities of TNCs for a three-year days just prior to the Sub-Commission’s 2002 period. session. Accordingly, it is more likely that the At the first meeting in 1999, the Sub-Commission will have sufficient time to Working Group adopted its agenda for the first devote to the important issues that will arise three years, which included gathering during the Social Forum. information on the present activities of TNCs; collecting data on how TNCs affect the B. Sessional Working Group on enjoyment of civil, cultural, economic, political, Transnational Corporations and social rights, including the right to development and the right to a healthy There is increasing concern about large environment; and asking Mr. David Weissbrodt businesses that operate beyond the reach of any to prepare a draft code of conduct for TNCs. At one State. Many of these large corporations, its second meeting in 2000, in its commonly referred to as transnational recommendations for future work, the Working corporations (TNCs), may already be subject to Group invited Mr. Weissbrodt to revise and some international norms, but they are often update his draft standards on the human rights able to use their great political and economic conduct of companies. power to evade national legal limits. Industry During the Sub-Commission’s fifty- groups, trade unions, NGOs, intergovernmental third session, the Working Group re-elected Mr. organizations (IGOs), and others have begun to El Hadji Guissé as its Chairperson-Rapporteur. respond to this issue. One response has been the Mr. Vladimir Kartashkin (expert from the creation of codes of conduct for adoption by Russian Federation), Mr. Miguel Alfonso TNCs themselves, trade unions, industry groups, Martínez (expert from Cuba), Mr. Soo-Gil Park and others. Codes of conduct generally (expert from the Republic of Korea), and Mr. delineate the principles a TNC or other business David Weissbrodt were the other members of entity should follow in regard to such issues as the Working Group. worker’s rights, consumer and environmental Also at this year’s meeting, the protection, security arrangements and other Working Group considered papers submitted by human rights concerns. The UN Secretary- three experts. The Chairperson-Rapporteur, Mr. General, Kofi Annan, has addressed this issue Guissé, submitted a paper on the impact of by launching the Global Compact initiative at TNCs’ activities on the enjoyment of economic, the World Economic Forum in Davos in social, and cultural rights. Mr. Asjborn Eide February 1999. The Global Compact asks (expert from Norway) submitted a paper on the businesses voluntarily to support and adopt nine responsibilities and procedures for core principles dealing with human rights, implementation and compliance on human labour, and the environment. rights guidelines for TNCs. Further, Mr. The Commission on Human Rights’ Weissbrodt submitted four papers including: an Working Group on the Right to Development introduction to the draft guidelines, the draft recommended the adoption of new international guidelines, a background paper on source legislation and the creation of effective materials for the guidelines, and a report of a international institutions to regulate the seminar to discuss the guidelines. The Working activities of TNCs and banks. In response to Group also received written technical comments this request, in its resolution 1998/9 of 20
138 INTERNATIONAL CIVIL LIBERTIES REPORT on the draft guidelines from the International produce a treaty relating to TNCs and other Labour Office. businesses. At the same time these participants The discussion following the expressed a desperate need to hold TNCs introduction of these documents focused around accountable as soon as possible rather than several key issues. These issues are explained waiting for years to develop a treaty. Third, below with a brief discussion on the renewal there was also a concern that a binding and expansion of the mandate for the Working instrument could only represent a watered-down Group. version of the necessary standards. Participants in the Working Group 1. Binding or Voluntary? concluded that eventually the Guidelines should be binding as “soft law”, or as an authoritative The first issue was whether the draft interpretation of existing treaties and other guidelines should be implemented as a international legal obligations. One expert voluntary set of guidelines, or if the Working noted that in light of the need for speed, a set of Group should pursue a binding set of guidelines. soft law guidelines would have a clear From the beginning, there was a high degree of advantage. The soft law method would result in consensus that the Working Group should an immediate standard and methods of pursue a binding set of guidelines. Several implementation, while still not foreclosing the arguments were raised in favour of binding option of developing a treaty at a later time. guidelines. First, purely voluntary guidelines Soft law standards may be adopted at any one of may only reproduce the efforts of many other the many different levels within the UN, groups that have already created and although they are ordinarily considered more implemented avenues to encourage businesses authoritative if they are adopted by higher to adopt voluntary guidelines. Second, an NGO organs such as the General Assembly. The speaker noted that there was an urgent need for Draft Guidelines could be adopted and practical methods of enforcing human rights promulgated: (1) by the Working Group; (2) by standards against TNCs and that voluntary the Sub-Commission; (3) by the Commission on guidelines do not contain any methods of Human Rights; (4) by the Economic and Social enforcement. Third, States are sometimes too Council; and/or (5) by the General Assembly. weak or too focused on attracting international investment so that the State cannot or will not 2. All Businesses or only TNCs? stand up to TNCs. International standards could be used to encourage governments to stand up to A second issue was whether the TNCs. guidelines should apply only to TNCs or to all Some concerns were expressed about companies. While some participants at the binding guidelines. First, international Working Group session in the August 2001 corporate responsibility standards should not session indicated that TNCs are the source of diminish the responsibilities and obligations of the most serious problems, the great majority of States to protect human rights. States still carry the participants seemed to agree that the the primary obligation to enforce laws within guidelines should apply to all companies. their respective boundaries and States should Participants were concerned about the difficulty not be able to abrogate these obligations or of defining “transnational companies.” They depend on enforcement from an outside body. noted that TNCs would be more likely to Second, most participants in the Working Group comply with standards that apply to all session noted that it may take many years to companies. Transnational corporations might
139 INTERNATIONAL CIVIL LIBERTIES REPORT also be capable of avoiding compliance with mandate, and simultaneously increased the narrow standards applicable only to TNCs by scope of the mandate by adding several new transforming themselves into a group of tasks. The mandate’s renewed tasks include: (1) national companies. examining, receiving, and gathering information Several participants in the Working on the effects of the working methods and Group session, however, argued that national activities of TNCs on the enjoyment of companies should be regulated by the State in economic, social, and cultural rights and the which they are located and the role of the State right to development; (2) compiling a list of should not be reduced through UN adopted various existing regional and international guidelines. The purpose of the Working Group, agreements on investment, trade, and services, those same people argued, was to examine the in relation to the activities of TNCs, and their activities of TNCs that are currently functioning impact on human rights, and an analysis of their beyond the borders of any one national compatibility with various international human framework and create an international rights instruments; (3) requesting the Secretariat framework to hold these actors accountable. to prepare each year a list of countries and They argued that the inclusion of other TNCs, indicating, in U.S. dollars, their gross businesses went beyond the mandate to national product and financial turnover; and (4) “identify and examine the effects of the working considering the scope of the obligation of States methods and activities of transnational to regulate the activities of TNCs, where their corporations . . ..” activities have or are likely to have a significant A middle ground considered that the impact on the enjoyment of economic, social, guidelines should be written with binding and cultural rights and the right to development, standards that apply to TNCs and other as well as civil and political rights of all persons companies. Accordingly, the guidelines should within their jurisdiction. recognize the responsibilities of larger and more The Sub-Commission’s resolution also influential companies to use their greater asked the Working Group to contribute “to the influence to promote human rights in their drafting of relevant norms concerning human respective communities. The Draft Guidelines rights and TNCs and other economic units before the Working Group at its third meeting whose activities have an impact on human incorporated this third suggestion; the rights.” This formulation indicates that the Guidelines applied to all businesses, but TNCs Working Group should develop standards that were given unique responsibilities when their focus on TNCs but also cover other companies. size and power enable them to evade national With the renewed mandate, the Working Group responsibilities and to do other things smaller will next meet during the fifty-fourth session of companies may be unable to do. the Sub-Commission. Each of the authors of the documents considered at the 2001 session were 3. Continued Mandate encouraged to update their work for the next meeting, “taking into account the comments and Because the Working Group did not contributions from experts and any other come to a full consensus on many of the above sources, particularly the specialized agencies of and other issues, and because there is still much the United Nations system, including the need for more discussion on implementation, International Labour Organization, the World the Working Group’s mandate was renewed for Health Organization and the United Nations another three years. The renewed mandate Educational, Scientific and Cultural contained many of the tasks in the original
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Organization, so that a binding instrument can In April 2001, however, the Commission failed be drafted.” to approve that request. Many members of the Sub-Commission expressed dismay that the C. Resolutions on Economic, Commission failed to authorise such an Social, and Cultural Rights important study and decided to renew the request, even though the Commission had never This year the Sub-Commission adopted previously authorized a study that it had a number of resolutions addressing economic, previously refused. The resolution, importantly, social, and cultural rights as well as activities requested the author of the proposed study to that potentially affect those rights. These “define as accurately and as fully as possible the resolutions covered a range of issues including content of the right to water in relation to other extreme poverty, drinking water and sanitation, human rights.” This request is important as it the right to food, the non-discrimination clause addresses one of the shortcomings of the in Article 2(2) of the International Covenant on original working paper, namely its failure to Economic, Social and Cultural Rights articulate the basis in international law for a (ICESCR), and the draft Optional Protocol to right to water. As the right to water can be the Covenant on Economic, Social and Cultural implied from numerous explicit rights, such as Rights. Resolutions on related issues included the right to adequate food, the proposed study those covering intellectual property and human would prove valuable if it does indeed rights, globalisation, and the liberalisation of accurately and fully explain that basis. In April trade in services and human rights. 2002 the Commission on Human Rights With respect to the subject of extreme reversed its previous position and authorized the poverty, the Sub-Commission considered a study on the right to drinking water and request from the Commission to explore sanitation. possibilities for the implementation of existing The resolution on the non- human rights norms and standards as a means of discrimination clause in Article 2(2) of the combating extreme poverty. The Sub- ICESCR resulted from a request of the Commission concurred with its parent body that Committee on Economic, Social and Cultural such a study is needed and appointed four of its Rights. With the resolution, the Sub- members -- Mr. Paulo Sergio Pinheiro (expert Commission charged one of its members, Mr. from Brazil), Mr. Yozo Yokota (expert from Fried Van Hoof (expert from The Netherlands) Japan), Mr. El-Hadji Guissé (expert from with the task of preparing a working paper on Senegal), and Mr. José Bengoa (expert from the above topic. Mr. Van Hoof is expected to Chile) – to prepare a working paper on the need submit the working paper to the Sub- to develop guiding principles on the Commission at its fifty-fourth session in order implementation of existing human rights norms that the feasibility of a comprehensive study can and standards in the context of the fight against be discussed. extreme poverty. The working paper will be The resolution on the draft Optional considered by the Sub-Commission at its fifty- Protocol, while welcoming the appointment of fourth session. an Independent Expert of the Commission The subject of the right to drinking charged with examining the question of the draft water and sanitation generated a great deal of Optional Protocol, stated once again that an discussion as well. In 2000 the Sub- inter-sessional open-ended working group of the Commission requested that the Commission Commission is the appropriate mechanism to authorise a comprehensive study on this topic. examine such a question and reiterated its
141 INTERNATIONAL CIVIL LIBERTIES REPORT suggestion to the Commission that such a on United Nations Peacekeeping Operations, working group be established at its next session. which were undertaken to help build institutions As mentioned above, several resolutions based on accountability and the rule of law. At were adopted that touch upon economic, social, the time of her intervention, Ms. Hampson and cultural rights to some degree. The noted that there were United Nations Civilian resolution adopted on intellectual property and Police (CIVPOL) serving in Bosnia, Kosovo, human rights, for instance, reminded East Timor, and elsewhere. But when these governments of the primacy of human rights officers committed crimes, they were most often obligations under international law over not punished. In Bosnia, for example, United economic policies and agreements. This Nations Civilian Police have diplomatic reminder was aimed in part at governments immunity. The highest punishment the United participating in the review of the World Trade Nations can impose is repatriation to the home Organization Agreement on Trade-Related country, and the home country is not obligated Aspects of Intellectual Property (TRIPS). to investigate any crime or to report back to the Regarding TRIPS, the Sub-Commission urged United Nations. Recently, Ms. Hampson noted governments to ensure that the implementation that there were reports that an officer had of the TRIPS Agreement does not negatively purchased a woman from a brothel for 6,000 impact the enjoyment of human rights and Deutsch Marks. In Kosovo, an officer raped a reiterated that as currently drafted the treaty 14-year-old mentally-handicapped girl. The poses actual or potential conflict with the officer was repatriated and currently there are realisation of economic, social, and cultural no criminal charges against him although the rights, in particular the rights to self- whole prosecutor’s file was sent to his country’s determination, food, housing, work, health, and permanent mission in New York. Additionally, education. The resolution also requested the three officers are currently under investigation High Commissioner for Human Rights to seek for trafficking women from Serbia into Kosovo. observer status with the WTO with respect to Further, military forces serving in the review of the TRIPS Agreement and to hold Kosovo have committed numerous violations of an expert seminar to consider the human rights human rights law, and victims have little or no dimension of the TRIPS Agreement. access to an effective remedy. Some Kosovo Similarly, the resolution on Force (KFOR) contingents believed that under liberalisation of trade in services and human Security Council Resolution 1244, they could rights expressed the Sub-Commission’s expropriate property without paying for it. concerns regarding the General Agreement on Some contingents have built bases or roads on Trade in Services (GATS). In the resolution the land owned by private individuals. KFOR spent Sub-Commission, inter alia2 called upon nearly one year developing a claims governments to ensure that the formulation, commission to deal with these types of interpretation, and implementation of policies complaints, but at the time of the Sub- related to the liberalisation of trade in services Commission session it was still not functioning. did not negatively affect the enjoyment of Ms. Hampson argued that in a climate human rights. in which all legal responsibility was denied within Kosovo, it could not be left to individual V. Administration of Justice victims and local lawyers to submit reports. After all, the KFOR and the officers were This year, Ms. Hampson (expert from supposedly there, under a United Nations the United Kingdom) presented an intervention mandate, to serve as a model for compliance
142 INTERNATIONAL CIVIL LIBERTIES REPORT with human rights standards. At the very least, circumstances in which these violations are the Special Rapporteur for the former committed, to legal proceedings against all Yugoslavia, relevant thematic rapporteurs and individuals responsible for such crimes, the Human Rights Committee, when examining including former heads of State or Government the reports of States whose forces or whose whose exile serves as a pretext for their police take part in peacekeeping operations, impunity.” The resolution also urged all States should address this problem as a matter of “to co-operate in order to search for, arrest, urgency. Ms. Hampson also urged the Sub- extradite, bring to trial and punish persons Commission to address the effective found guilty of war crimes and crimes against accountability of peacekeeping forces and humanity.” members of the United Nations police force Furthermore, the Sub-Commission who were acting in the name of the international considered a working paper on discrimination in community. the criminal justice system authored by Ms. As a result of her intervention, the Sub- Leili Zerrougui (expert from Algeria) and Commission adopted a decision on the “Scope initially prepared for the Sub-Commission’s of the activities and the accountability of armed sessional Working Group on the Administration forces, United Nations civilian police, of Justice. The working paper, inter alia, international civil servants and experts taking discussed how discrimination was still a part in peace support operations (i.e., all widespread problem, with each region of the operations of a peacekeeping or peace world having its own particular type of enforcement nature under a United Nations discrimination in courts, police stations, and mandate).” This decision expressed concern “at prisons. The Sub-Commission, expressing its the allegations of serious violations of human concern about the extent of discrimination in rights on the part of personnel serving in peace criminal justice systems, requested Ms. support operations,” and entrusted “Ms. Zerrougui to continue her research and submit a Françoise Hampson with the task of preparing, final working paper on the subject to the Sub- without financial implications, a working paper Commission at its next session. on the scope of the activities and the accountability of armed forces, United Nations VI. Studies civilian police, international civil servants and experts taking part in peace support operations, A. Globalization for submission to the Sub-Commission at its fifty-fourth session.” Mr. Joseph Oloka-Onyango (expert In its consideration of the from Uganda) and Ms. Deepika Udagama administration of justice, the Sub-Commission (alternate from Sri Lanka) presented their also adopted a resolution addressing progress report on globalisation and its impact “International co-operation in the detection, on the full enjoyment of all human rights. In the arrest, extradition and punishment of persons report, the Special Rapporteurs stressed that guilty of war crimes and crimes against while much has been achieved in the struggle to humanity.” This resolution affirmed “that apply the principles of equitable globalisation to within the framework of international co- every individual, much still remained to be operation in the search for, arrest, extradition done. The report called for heightened vigilance and punishment of persons guilty of war crimes on the part of States, members of civil society, and crimes against humanity, the highest and all those concerned with the promotion and priority should be given, independently of the protection of human rights. As to specifics, the
143 INTERNATIONAL CIVIL LIBERTIES REPORT report discussed the impact of intellectual from Norway), Mr. Fried Van Hoof (expert property rights on human rights, suggesting that from The Netherlands), Mr. Soo Gil Park any document addressing trade-related (expert from the Republic of Korea), Mr. intellectual property rights to emerge from Fisseha Yimer (expert from Ethiopia), and Mr. Member States of the World Trade Organization Vladimir Kartashkin (expert from the Russian (WTO) contain specific language to the effect Federation), all of whom agreed that such that no provision in the agreement prohibits bodies are indeed bound by international human members from taking measures to provide rights law and that Member States of such access to medicines at affordable prices and to organisations cannot derogate from their promote public health and nutrition. The report respective obligations simply by being a party to also examined mechanisms, including in a trade or financial agreement. Indeed, as Mr. particular the dispute settlement mechanism in Yokota pointed out, even if one were to accept operation at the WTO as well as poverty- the argument that the IMF is not bound by directed efforts at the World Bank and the IMF, treaties entered into subsequently by Member including the Highly Indebted Poor Countries States, as the IMF contended, it was bound by Initiative. In addition, the report illustrated how customary international law. the international financial and trade institutions Representatives of the WTO did admit are bound by international law, including that international human rights law does bind international human rights law, and indicated that organization. Furthermore, the WTO had that subsequent reports will provide further begun to participate in a dialogue with the support for that conclusion. The report closed Special Rapporteurs regarding its human rights with some specific recommendations regarding obligations. That dialogue, as well as the lively the content of the TRIPS Agreement and involvement of the WTO, IMF, and World Bank potential conflicts of that agreement with human in the 2001 session, was welcomed by the Sub- rights. Commission, which encouraged similar With respect to the dispute settlement discussions with all pertinent bodies. mechanism of the WTO, the Special Rapporteurs called for more transparency. The B. Studies Undertaken Pursuant report criticised the closed panel meetings and to the Sub-Commission’s panel decisions adopted anonymously. The Cooperation with the Treaty- report also called for professionalisation of the Monitoring Bodies panels with the costs of accessing a panel being borne by the WTO and not by aggrieved States. One way in which the Sub-Commission The report noted that, as it currently stands, the contributes to the field of human rights is by co- panel is often comprised of employees of the operating with the treaty-monitoring bodies. In WTO who disproportionately come from an effort to further such co-operation, the Sub- developed countries. Commission has prepared studies for the benefit Some aspects of the report were of those bodies. challenged by representatives of the World In continuing its ongoing co-operation Bank and the IMF, both of which, according to with the Committee on the Elimination of their representatives, were not bound by Racial Discrimination (CERD), in particular, the international human rights law. This stance was Sub-Commission received a progress report on challenged by many of the experts on the Sub- the concept and practice of affirmative action Commission, including Mr. Yozo Yokota and a preliminary report on the rights of non- (expert from Japan), Mr. Asbjørn Eide (expert citizens.
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This year the Sub-Commission paper was in response to a 1997 request from considered requests from CERD and the CERD. The report explored the rights of non- Committee on Economic, Social and Cultural citizens under relevant international and Rights (CESCR) to conduct additional studies regional standards and examined in particular on topics suggested by those bodies. In developments since the 1985 Declaration on the addition, the Sub-Commission responded to a Human Rights of Individuals Who Are Not 1997 request by CERD by authorizing Mr. Nationals of the Country in Which They Live. Paulo Sergio Pinheiro to prepare a working The Special Rapporteur reiterated his paper on property restitution for refugees and concern that existing standards have not other displaced persons. Further, the Sub- adequately protected the human rights of non- Commission responded to a 2000 request from citizens and that, as CERD had itself said, CESCR by entrusting Mr. Fried Van Hoof with governments have increasingly been making the task of preparing a working paper on the distinctions between different categories of non- non-discrimination clause in Article 2(2) of the citizens and between non-citizens from different Covenant on Economic, Social and Cultural nations. He also expressed concern that those Rights. distinctions may contravene international law. Mr. Weissbrodt solicited input from 1. Affirmative Action NGOs, governments, and other interested parties as he embarked on the next phase of his Special Rapporteur Mr. Marc Bossuyt, study. That phase will include an update of former Sub-Commission expert from Belgium relevant jurisprudence, a survey of factual who now serves on CERD, presented his situations around the world, and an analytical progress report on the concept and practice of examination of how the international legal affirmative action. Mr. Bossuyt told the Sub- regime currently addresses and should address Commission that he had sent a questionnaire to those situations. The Sub-Commission governments over a year ago and was still requested authority from the Commission for awaiting replies. He also discussed the report’s dissemination of a questionnaire to assist in focus, which was to delineate the scope that gathering information for this study. Mr. affirmative action programmes should take. Weissbrodt will present his progress report Sub-Commission experts commented when the Sub-Commission next meets in that there would always be controversies August 2002. surrounding affirmative action programmes. Many suggested that it would be helpful to have 3. Property Restitution for a comparative analysis of the effect of Refugees and Internally affirmative action programmes in various Displaced Persons (IDPs) countries. The Sub-Commission also noted that affirmative action efforts were especially The issue of refugee and IDP return important in the field of education. received attention by the Sub-Commission at this year’s session. On 16 August the Sub- 2. Rights of Non-Citizens Commission appointed one of its members, Prof. Paulo Sergio Pinheiro, to author a working Mr. Weissbrodt, as Special Rapporteur, paper on the topic of the return of refugees’ and presented his preliminary report on the rights of displaced persons’ property. That working non-citizens. As had been the case in regard to paper will not only provide an examination of the study of affirmative action, this working current international, regional, and national
145 INTERNATIONAL CIVIL LIBERTIES REPORT standards relating to property restitution but will also lay the groundwork for a more comprehensive examination of this matter. It is envisaged that the working paper will focus particularly on housing restitution for returning refugees and displaced persons. Issues to be covered will include an analysis of the role housing restitution plays in ensuring the voluntary, safe, and dignified return of displaced persons to their homes and when compensation in lieu of restitution is appropriate. Mr. Pinheiro is expected to present his working paper to the next session of the Sub- Commission in August 2002.
C. Other Studies
Other working papers and studies presented at this year’s session of the Sub- Commission included those on discrimination against indigenous peoples, and on terrorism and human rights Working papers authorised at this year’s session for presentation at the 2002 session include examinations of indigenous peoples’ permanent sovereignty over natural resources; the question of the trade and carrying of small arms and light weapons and the use of such weapons in the context of human rights and humanitarian norms; the testing, production, storage, transfer, trafficking or use of weapons of mass destruction or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering, including the use of weaponry containing depleted uranium; and human rights and bioethics, including the implications of the Universal Declaration on the Human Genome and Human Rights. Additionally, the Sub-Commission authorised expanded working papers on reservations to human rights treaties, measures provided in the various international human rights instruments for the promotion and consolidation of democracy, and, as mentioned above, discrimination based on work and descent.
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VI. Working Groups take action with respect to a particular issue. As such, the working groups can influence the The Sub-Commission makes a unique agenda and the performance of the Sub- contribution to the human rights field through Commission. its four inter-sessional working groups on minorities, indigenous populations, slavery, and A. Working Group on Minorities communications. The working groups provide the possibility for a participatory study of In 2001 the Working Group on current issues, trends, and difficulties in Minorities convened for its sixth session from thematically important areas, and involve 14 to 18 May. This Working Group is a monitoring of human rights problems by subsidiary body of the Sub-Commission and providing a channel for the airing of grievances. was authorised by the Commission on Human For example, there is no other venue in the Rights in its resolution 1995/24 of 3 March United Nations where minority issues are being 1995, and endorsed by the Economic and Social addressed as intensively as in the Working Council in its resolution 1995/31 of 25 July Group on Minorities. The Working Group on 1995. By decision 1998/246 of 30 July 1998, Indigenous Populations has also made important the Economic and Social Council extended the strides in the past by drafting a proposed mandate of the Working Group with a view to declaration on indigenous rights and continuing its holding one session of five working days to hear the concerns of indigenous communities annually. In accordance with its mandate, the from around the world. The other working Working Group is expected to: “(a) review the groups, too, help maintain the Sub- promotion and practical realization of the Commission’s distinct role in protecting and Declaration on the Rights of Persons Belonging promoting human rights. to National or Ethnic, Religious and Linguistic Each working group is composed of one Minorities; (b) examine possible solutions to Sub-Commission expert from each of the five problems involving minorities, including the geographic regions. All of the working groups promotion of mutual understanding between and – with the exception of the Working Group on among minorities and Governments; and (c) Communications – are open to participation by recommend further measures, as appropriate, for observers. Consequently, they have become the promotion and protection of the rights of important fora for NGOs, interested individuals, persons belonging to national or ethnic, and others to participate in a discussion of a religious and linguistic minorities.” particular subject. In addition, expert At its seventh session, the Working participation in working groups allows Sub- Group re-elected Mr. Asbjørn Eide (expert from Commission members to focus on a particular Norway) as Chairperson-Rapporteur. The area of interest or expertise. Further, the Working Group was also comprised of the working groups allow for reports of human following experts of the Sub-Commission: Mr. rights violations and give governments the José Bengoa (expert from Chile), Mr. Vladimir chance to respond. Kartashkin (alternate from Russia), Mr. Soli The working groups on minorities, Sorabjee (expert from India), and Mr. Sik Yuen indigenous populations, and slavery each (expert from Mauritius). Representatives of 50 compile a report of their respective sessions, to governments, 69 NGOs, 38 scholars, and 10 submit to the Sub-Commission’s plenary inter-governmental organisations attended this session. In addition, these working groups may year’s session of the Working Group. place proposals before the Sub-Commission to
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The Working Group has taken a topic- B. Working Group on Indigenous by-topic approach, focusing on matters such as Populations intercultural and multicultural education for minorities, the role of the media in regard to Among its many past accomplishments, minorities, and generally on constructive ways the Working Group on Indigenous Populations to handle situations involving minorities. has made a decisive contribution by drafting the During its session, the Working Group Declaration on the Rights of Indigenous Peoples considered four principal themes: (1) reviewing and giving indigenous peoples a voice at the the promotion and practical realisation of the international level. The Working Group’s Declaration on the Rights of Persons Belonging mandate is to: “review developments pertaining to National or Ethnic, Religious and Linguistic to the promotion and protection of the human Minorities; (2) examining possible solutions to rights and fundamental freedoms of indigenous problems involving minorities, including the populations, together with information promotion of mutual understanding between and requested annually by the Secretary-General, among minorities and Governments; (3) and to give special attention to the evolution of recommending further measures, as appropriate, standards concerning the rights of indigenous for the promotion and protection of the rights of populations.” persons belonging to national and ethnic, The Working Group also plays an religious and linguistic minorities; (4) important role in reviewing developments determining the Working Group’s future role in related to the situation of indigenous promoting and protecting the rights of communities throughout the world, providing a minorities. unique forum for indigenous peoples from all At its seventh session the Working over the world to assemble in Geneva, exchange Group discussed the practical realisation of the experiences, engage in a dialogue with their Declaration at the national level, providing respective governments, and develop common opportunities for NGOs, government observers, proposals addressed to the UN system. Every and other participants to review developments year, hundreds of indigenous human rights in different parts of the world and discuss advocates from all over the world participate in possible solutions to minority problems. This the Working Group on Indigenous Populations theme allowed for a more in-depth examination and it continues to rival the Sub-Commission in of the right to effective participation of levels of attendance. minorities in the society of which they form a In 2001 the Working Group on part. Special attention was given to an Indigenous Populations convened for it examination of integrative approaches to nineteenth session from 23 to 27 July. At its minority protection. first meeting the Working Group elected Ms. At its eighth session in May 2002, the Erica-Irene Daes (expert from Greece) as Working Group will examine integrative Chairperson-Rapporteur. Other members of the measures for the better protection of the rights Working Group were Mr. Miguel Alfonso of minorities as well as mainstreaming of the Martínez (expert from Cuba), Mr. El-Hadji human rights of minority persons in national Guissé (expert from Senegal), Ms. Iulia development plans and international Antoanella Motoc (expert from Romania), and development co-operation. Mr. Yozo Yokota (expert from Japan). Representatives of 33 Member States, 5 United Nations bodies and specialized agencies, and 271 indigenous and non-governmental
148 INTERNATIONAL CIVIL LIBERTIES REPORT organizations attended the Working Group. A pornography; on child labour; on prevention of total of 1,033 persons attended the nineteenth the traffic in persons and the exploitation of the session of the Working Group. prostitution of others; and on economic The principal theme of this year’s exploitation including the rights of domestic and session was “Indigenous peoples and their right migrant workers, bonded labour, forced labour, to development.” Many speakers addressed this and slavery-like practices in armed conflicts. year’s theme, commenting that indigenous The Working Group is a subsidiary views and values should be incorporated into body of the Sub-Commission and Commission the concept of development. Similarly, many and was established pursuant to Economic and called for indigenous knowledge and traditions Social Council decisions 16 (LVI) and 17 (LVI) to be taken into account in the planning and of 17 May 1974. The Working Group was implementation of development projects, and established in 1975 and has met regularly before that the notion of development should thus be each session of the Sub-Commission. This based on a balance between Western or Working Group’s mandate is to: “review mainstream and indigenous views of developments in the field of slavery, the slave development. trade and the slavery-like practices, of apartheid In a resolution adopted on 15 August, and colonialism, the traffic in persons and the the Sub-Commission recommended that the exploitation of the prostitution of others, as United Nations Development Programme and defined in the Slavery Convention of 1926, the the World Bank present their new policy Supplementary Convention of 1956 on the guidelines on indigenous peoples at the Abolition of Slavery, the Slave Trade, and twentieth session of the Working Group. The Institutions and Practices Similar to Slavery, Sub-Commission also invited members of the and the Convention of 1949 for the Suppression Group to prepare working papers containing of the Traffic in Persons and of the Exploitation proposals and suggestions for possible future of the Prostitution of Others.” standard-setting and on indigenous peoples’ In 2001, the Working Group on permanent sovereignty over natural resources. Contemporary Forms of Slavery convened for The Sub-Commission also asked the Working its twenty-sixth session from 11 to 15 June. Group at its twentieth session to continue its This year the Working Group elected Mr. consideration, as a principal theme, of Rajendra K. Goonesekere (expert from Sri “Indigenous peoples and their right to Lanka) as Chairperson-Rapporteur. The other development.” members of the Working Group were Mr. Stanislav Ogurtsov (expert from Belarus), Mr. C. Working Group on Pinheiro (expert from Brazil), Mr. van Hoof Contemporary Forms of (expert from The Netherlands), and Ms. Halima Slavery Warzazi (expert from Morocco). As neither Mr. Paulo Sergio Pinheiro nor his alternate, Mr. The Working Group on Contemporary Hector Fix-Zamudio (expert from Mexico), Forms of Slavery is the only mechanism in the could attend, they were replaced by Mr. Miguel UN system for monitoring compliance with Alfonso Martínez (expert from Cuba). several multilateral human rights treaties Representatives of 19 governments and 20 relating to slavery and slavery-like practices. NGOs attended the 2001 session of the Working This Working Group has taken the initiative in Group. developing programs of action against the sale This year the Working Group paid of children, child prostitution, and child particular attention to the topic of trafficking in
149 INTERNATIONAL CIVIL LIBERTIES REPORT persons -- a theme decided upon at its previous session in 1999 and reaffirmed in 2000. As There was a general feeling that the such, the Working Group listened to a number Sub-Commission was again emerging as an of interventions regarding trafficking in persons. expert body filling a unique role in the Most speakers welcomed the Protocol to promotion and protection of human rights. The Prevent, Suppress and Punish Trafficking in previous two elections to the Sub-Commission Persons, Especially Women and Children strengthened its expertise in the area of (Trafficking Protocol), but they also expressed economic, social, and cultural rights, and that their concern about some of the provisions, expertise is manifesting itself in a number of particularly in regard to the protection of the thoughtful and timely studies and resolutions, victims of trafficking. Many participants including those on globalisation, international regretted the fact that too often, persons who trade and human rights, the effect of intellectual have been trafficked continue to be considered property on human rights, and the relationship and treated like criminals, often because of their between businesses and human rights. The Sub- undocumented immigration status, rather than Commission, of course, has not lost sight of the being treated as victims of the crime of continuing importance of civil and political trafficking. Other provisions of the Trafficking rights, and this year continued its contribution to Protocol were also discussed. the examination of the administration of justice, On 15 August the Sub-Commission, including discrimination in the criminal justice taking note of the report of the Working Group, system. adopted a resolution concerning seven sub- The Sub-Commission, however, was themes examined at this year’s session. These somewhat hindered by time constraints. The sub-themes included traffic in persons and Sub-Commission did not have enough time to exploitation of the prostitution of others, draft resolutions with adequate consultations prevention of the transborder traffic in children, among members. Both draft resolutions and the role of corruption in the perpetuation of studies were not made available in time for slavery and slavery-like practices, misuse of the thorough consideration as the Secretariat itself internet for the purpose of sexual exploitation, lacked the time to prepare the relevant migrant workers and domestic migrant workers, documents. Responding to this problem, the and eradication of bonded labour and Sub-Commission unanimously requested the elimination of child labour; and the sale of Commission to restore the four-week duration children, child prostitution, and child of its annual session. Inspired by its meeting pornography. with the Commission, the Sub-Commission The Working Group decided that its further proposed that the Commission seek principal theme for 2002 will be the exploitation authority from the Economic and Social Council of children, particularly in the context of to provide at least an advisory decision about prostitution and domestic servitude and in 2003 Sub-Commission requests for studies and other will be the issue of contemporary forms of concrete measures at its September meeting slavery related to and generated by rather than having to wait until March/April for discrimination, in particular, gender a decision by the Commission. Those two discrimination, focusing attention on abuses measures will make it possible for the Sub- against women and girls, such as forced Commission to fulfill more effectively its marriages, early marriages, and sale of wives. “think-tank” role and have the kind of deliberations that will avoid the spectacle of the VII. Future of the Sub-Commission public drafting of resolutions.
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16. Revised Guide to Human Rights the content available on the Web cannot be Research on the Web accessed through search engines at all because it is contained in Web databases. Therefore, it is by: Marci Hoffman* important that researchers use a combination of Revised July 2002 search engines, Web catalogs (also called directories or indices), and Web guides (such as this one) to locate relevant documents and As we all know by now, the Web has become information. For more information on this the primary resource for accessing human rights issue, see The Nuts and Bolts of Search Engines, information, documents, and other materials. by Gail Partin in What’s Online in International This guide will focus on some of the major Law (ASIL Newsletter, September-October, human rights and related Web sites that are 2001) crucial to the ongoing research efforts of human
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4) Rights International, The Center for development of what is hoped will become the International Human Rights Law Inc., The most complete source of information available Rights International Research Guide for on the Internet concerning United Nations International Human Rights Lawyers action in the field of human rights." It contains
6) University of Toronto, Women's Human Primary features of this site include: Rights Resources
In 1995 the Office of the High 2) United Nations Home Page Commissioner for Human Rights/Centre for
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This site provides information about the information UN (history, list of member states, the UN
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searching mechanism available and a 3) University of Minnesota Human Rights chronological list of agreements. This site also Library
4) Multilaterals Project (Tufts University, Fletcher School of Law and Diplomacy)
Contains a variety of full-text treaties, including many human rights instruments. No citations are provided however. There is a
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5) Netherlands Institute of Human Rights d. ILODOC (documents and (SIM), Human Rights Treaties publications of the ILO, some full text
III. Specialized Sites See also the ILO Research Guide (Cornell Law Library's ILO Mirror Site). This 1) International Labour Organization (ILO) mirror site contains a detailed bibliography on
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3) United Nations High Commissioner for it contains treaties related to social matters, Refugees (UNHCR)
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c. European Court of Human Rights
The official Web site of the Court contains general information on the court, pending cases, judgments and basic texts (such as the Rules of Court). A list of recent judgments is also available. HUDOC is the Court’s database containing the case-law of European Convention on Human Rights
d. Council of Europe, Commissioner for Human Rights
Provides access to documents issued by the Commissioner, such as reports, opinions, recommendations, and other documents.
For more information on the documentation issued by the Council of Europe, see Anne Burnett, Guide to Researching the Council of Europe. This guide focuses on information and documentation on a variety of topics, including human rights
5) Organization of American States (OAS)
This is the official homepage of the OAS. It contains a great deal of information about the OAS, its charter, resolutions, annual report of the Secretary General, treaties and conventions, speeches and statements and press releases. Some of the documents available at this site are full-text (resolutions, annual reports, speeches, etc.). The OAS' Documents & Speeches page contains the full text of resolutions, treaties and conventions.
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Languages: English, French, Portuguese, and Human Rights in the Inter-American Spanish. System, but it is only available in Spanish at the moment. Languages: a. Inter-American Commission on English and Spanish. Human Rights IV. Humanitarian Law
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3) ReliefWeb
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6) International Committee of the Red 7) Each treaty included on Council of Cross
8) If the U.S. is a party to the agreement, consult tools such as Treaties in Force (TIF)
* A note of caution when using the State Dept. Web site, with the new administration, many portions of the current Web site do not have complete (or current information)
9) Netherlands Institute of Human Rights (SIM), Human Rights Instruments
Provides information on signatures and ratifications for most primary treaties and instruments.
For more information on ratification information on the Web as well as useful phone
159 INTERNATIONAL CIVIL LIBERTIES REPORT numbers, see the Treaties Chapter of the ASIL Torture, Committee on the Elimination Guide to Electronic Resources for International of Discrimination Against Women, Law Committee on the Rights of the Child,
There are a few good Web resources for b. University of Minnesota Human reports of States parties, concluding Rights Library, Inter-American observations or comments, general comments Commission, Annual Reports and recommendations and other basic
b. University of Minnesota Human d. University of Minnesota Human Rights Library, United Nations Rights Library, Inter-American Documents Court on Human Rights Advisory
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Contains annual reports, session reports, register to use the databases, but there is and special reports of the no charge for access. Languages: Dutch Inter-American Commission since 1960 and English.
161 INTERNATIONAL CIVIL LIBERTIES REPORT useful guide to country documentation 9) UNHCR, Public Information Section
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These Web sites are good places to This database contains summaries and begin one's research since they link to many excerpts of legislation, constitutions, court other relevant sources. decisions, and other official government documents from every country in the world 1) AAAS Directory of Human Rights relating to population policies, reproductive Resources on the Internet health, women's rights, and related topics.
4) Annual Review of Population Law Provides a wide variety of reports on
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9) OneWorld Online < http://www.oneworld.net/> A new feature of this article is a specialized research guide on economic, social "OneWorld is dedicated to promoting and cultural rights (ESC rights). This guide human rights and sustainable development by will highlight some of the major Web resources harnessing the democratic potential of the available for researching this topic. Internet." It contains news, thematic guides and ESC rights are enumerated in the other resources. International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 10) Women's Human Rights Page 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.
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• right to food I. General Resources on Economic, Social • right to health and Cultural Rights • right to education • right to housing A. Documents and Background Information
• UNHCHR, Related international Instruments
These related international instruments include the Declaration on Social Progress and Development, the Declaration on the Right to Development, and the Declaration of the Principles of International Cultural Co-operation.
• UNHCHR, Treaty Body Database
Contains the full-text of States reports, concluding observations, decisions, views, etc. related to the Committee on Economic, Social and Cultural Rights.
• UNHCHR, Committee on Economic, Social and Cultural Rights
Provides information about the Committee and its work. Includes the text of the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
B. General ESC Rights Web Sites
• UNHCHR, Economic, Social, and Cultural Rights
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0 AUS abandons International • Human Rights Watch, Economic, Criminal Court treaty,@ Agence France- Social & Cultural Rights Presse, May 6, 2002.This complete resource
• Amnesty International, Economic C. Selected E-Publications Relations
This site contains links to many documents • Stephen A. Hansen, Thesaurus of Economic, and publications about particular economic Social, and Cultural Rights: Terminology and social rights, such as the right to food, and Potential Violations (2000) education and work. It also has links to
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Economic, social and cultural rights is a adopted by colleges and universities for the enormous and varied area. The sites listed manufacture of goods with their school below are just a few the many resources logos. It contains information about the available on the Web for this topic. organization’s activities as well as links to other groups concerned with workers’ A. Labor rights. See also the links to the factory reports that the organization compiles. It • International Labour Organization contains a list of news articles related to (ILO)
This site contains lots of articles related to • Business for Social Responsibility various child labor topics, such as child
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resources section links to some databases as well as statistics and news releases about and studies in these areas. individual Asian countries. Also, there is access to information on what development • UNHCHR, Business and Human obstacles exist in Asia and what is being Rights: A Progress Report done to combat them.
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Information and documents on a • Fair Labor Association variety of development topics, such
This site lists research material on the This site provides the history of global international financial institutions, with codes of conduct, and the UN Global separate listings for the International Compact, the OCED Guidelines and the Monetary Fund (IMF), the World Bank ILO Tripartite Declaration of Principles Group and other major multilateral concerning Multinational Enterprises and institutions. The listings include basic Social Policy. The site has a comparison references, books and monographs, chart on the three different codes listed published articles and recent working above and links to government sites from papers. There is also Web links collection. around the world, and international and other organization sites dealing with D. Codes of Conduct corporate social responsibility.
• Business and Human Rights: • Social Accountability International Corporate Codes of Conduct
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• Worker’s Rights Consortium details specific cases where the right to food
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The site has health related news and a health 7) United Nations Special Rapporteur on the and human rights database. Right to Food
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7) The World Health Organization page contains briefings, position papers, and
This site has searchable health topics listed 2) Right to Education Project (Raoul in alphabetical order that includes Web Wallenberg Institute) references related to the topic. It has an
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CERA promotes human rights in housing and related issues. The site provides access to a number of reports and documents. The library has a number of full-text reports and articles. While the focus is Canada, there is information on other regions of the world as well.
3) The Centre for Housing Policy
This organization specializes in housing research. The “research” page links to many reports on various issues within housing, such as housing and social security. Some full-text discussion papers and research reports are available under “publications,” others can be ordered.
4) UNHCHR, Special Rapporteur on Adequate Housing
Links to UN documents, news, and related information by and about the Special Rapporteur (Miloon Kothari) and the right to housing.
III. Conclusion
This overview of economic, social and cultural rights just scratches the surface of this immense area. Thorough researchers should consult both the main research guide on human rights as well as this specialized topical section to locate the many relevant instruments, documents and related Web sites. Please send comments and questions to Marci Hoffman at [email protected].
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17. PENAL REFORM regard to law enforcement, INTERNATIONAL – WORKING prison conditions and standards; FOR HUMAN RIGHTS AND • The elimination of unfair and ACCESSIBLE JUSTICE unethical discrimination in all WORLDWIDE penal measures; • The abolition of the death By: Jenni Gainsborough* penalty; • The reduction of the use of There are more than eight and a half imprisonment throughout the million people known to be imprisoned in the world; jails and detention centers of the world. In • The use of constructive non- some regions, as many as 70% of prisoners are custodial sanctions which pre-trial detainees and often they spend more encourage social re-integration time in prison awaiting trial than they would while taking into account the under the maximum sentence for the crime they interest of victims. are charged with. Sickness, malnutrition and brutality are day-to-day realities for many It is a key tenet of PRI’s work that they prisoners, including women and children. only establish projects where they have the Increasingly, prison has become the first support of the government and of local non- response to crime instead of the last resort. As a governmental organizations. Without those result prison populations are increasing in most ingredients sustainable change is very unlikely countries of the world with extremely damaging to occur. While the organization can bring seed social and economic consequences for money with it – much of it from international individuals, communities and nations. governments and aid organizations – it In response to these problems, a group recognizes that long-term success will depend of people with extensive experience in working on projects working within existing economic for reform in many countries founded Penal realities. Reform International (PRI) in 1989. The For the same reason, PRI places a great improvement of the conditions and treatment of deal of emphasis on training and in particular on prisoners and the development of effective and train-the-trainer programs to be sure that the accessible justice systems are the foundation of knowledge “belongs” to the system and will the work of the organization which has now continue to be extended and reinforced after grown to be the world’s largest penal reform PRI’s direct involvement has ended. organization. PRI is headquartered in London and PRI seeks to achieve penal reform, Paris and has regional programs in Sub-Saharan recognizing diverse cultural contexts, by Africa, Eastern and Central Europe and Central promoting: Asia, South Asia, Latin American and the Caribbean and North Africa and the Middle • The development and East. Its first US office was opened in implementation of international Washington DC in September. The human rights instruments with organization has consultative status with the United Nations and with the Council of Europe and observer status with the African Commission on Human and Peoples’ Rights * Jennie Gainsborough is the Director of PRI in the United States.
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PRI works closely with the Special features of PRI’s program activities. In Russia Rapporteur on Prison and Conditions of and Eastern and Central Europe, alternatives to Detention in Africa, facilitating her visits on imprisonment and prison health – particularly investigative missions and the publication and ways to reduce the levels of HIV/AIDS, dissemination of the visit reports. It has also tuberculosis and hepatitis-C – have been the initiated programs to improve the treatment of main focus. juveniles and developed community service PRI has developed an international programs in several African countries. training program and materials for prison staff Publications describing the programs are on human rights in prison and the use of the UN disseminated widely and translated into many Standard Minimum Rules for the Treatment of languages and model programs are adapted and Prisoners Training of trainers workshops have replicated to other countries as appropriate. been conducted in Moscow and Bucharest to In Rwanda at the end of 2000, there prepare teams of skilled trainers across Central were more than 124,000 defendants in jail and Eastern Europe, and Central Asia. Each of awaiting trial accused of genocide and crimes the workshops was held in conjunction with a against humanity. This was a huge burden on a policy-oriented conference. The initial group of country struggling to re-establish economic and trainees subsequently carried out workshops for social normalcy. The Rwandan parliament government officials, prison staff, NGOs and passed a law introducing gacaca (popular) others, including journalists and community tribunals to try the less serious of these cases. leaders to promote alternatives to imprisonment, Penal Reform International (PRI) was asked to penal reform and a more humane and fair assist in the design and introduction of application of justice. Training programs are community service as one of the sentences also being developed in Latin America, Iran, available to the gacaca tribunals with programs Pakistan and Bangladesh and other countries based on principles developed by consensus world wide. among justice officials, survivors of the A program for training lawyers involved genocide and NGOs. PRI subsequently trained in defending capital cases has been developed in a Rwandan national to take over coordination of the Caribbean. PRI’s support work and assembled a team of While PRI works primarily with experts to research and report on community national governments and local NGOs to responses to the gacaca program. instigate and support penal reform, it also In Malawi, PRI supports a paralegal provides technical assistance to international advisory service bringing people from civil organizations. A PRI team recently visited society into prisons to educate prisoners about Afghanistan to meet with UN officials, other the legal process they face and to ensure international government organizations, Afghan individual prisoners are dealt with according to authorities, prison administration and NGOs to the law and that their cases are not “lost” within identify the steps necessary for the the system. As a result, hundreds of remand reestablishment of the penal system in the prisoners being held unlawfully have been devastated country in conformity with released and others have been able to leave international standards for human rights. prison as a result of bail, discharge or release on The role of the United States in compassionate grounds. This program is now influencing penal policies in developing being adapted and replicated in Benin. countries receiving international aid was a In South Asia, work on juvenile justice primary factor in the decision to open a PRI and women and children in prison are particular office in Washington DC. The office will
173 INTERNATIONAL CIVIL LIBERTIES REPORT facilitate contacts with international aid and development organizations headquartered in Washington and encourage them to see issues of access to justice and penal reform as central to the establishment of democracy, good governance and improved public health in developing nations. The Washington office will also establish working relationships with U.S. organizations active in penal reform, juvenile justice and the abolition of the death penalty to provide an international perspective on these issues, and to facilitate the exchange of information and best practices between reformers, policy makers and criminal justice professionals here and overseas. PRI-Washington will also provide a resource for journalists and others looking at U.S. criminal justice policy within an international framework – comparing and contrasting our policies and practices with those of other nations and those required by international standards, agreements and covenants. PRI’s international board includes Alvin J. Bronstein, the founding Director and now Director Emeritus of the National Prison Project of the ACLU. He will play a major role in advising and guiding the PRI-Washington office director, Jenni Gainsborough. For more information about the organization and its work in the U.S. and the rest of the world, visit the PRI web page www.PenalReform.org or contact PRI’s Washington office director, Jenni Gainsborough, at 202 721 5610 or email at [email protected].
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18. RECENT ILRF CASES TO by multinational firms. Recent cases under the ENFORCE HUMAN RIGHTS Alien Tort Claims Act (ATCA), 28 U.S.C. § UNDER THE ATCA. 1350, now provide the most promising opportunity to bring justice to workers in the By: Terry Collingsworth* global economy. The language of the ATCA, dating back to 1789, provides: “[t]he district courts shall have original jurisdiction of any A. Introduction civil action by an alien for a tort only, committed in violation of the law of nations or a The International Labor Rights Fund treaty of the United States.” (ILRF) has been working since its 1986 The ATCA was revived from its inception to develop mechanisms for enforcing dormancy by Filartiga v. Pena-Irala, 630 F. 2d labor rights in the global economy. Using 876 (2d Cir. 1980), a case based on a torture traditional tools such as research, education, claim brought against a former official of the policy promotion, and advocacy can only make government of Paraguay. The court’s landmark as much progress as governments, multinational decision launched a very effective tool to companies, and other parties who have power in enforce human rights norms. Applying the plain the global economy are to willing to agree to language of the ATCA, the court held that an concede. Accordingly, the ILRF has tried to use alien could sue in U.S. federal court for a “tort” administrative processes to enforce labor rights, that violates the “law of nations.” The court had particularly the Generalized System of no trouble finding that torture violated the law Preferences Act (GSP). 19 U.S.C.§§ 2461-66 of nations, and avoided the necessity of ruling (1986). This is a created a process wherein on whether a private party could be liable since “beneficiary developing countries” received the defendant had been a state actor when the duty free access to the US market, in exchange violations occurred. for specific conditions, including respect for Since Filartiga, the ATCA has been “internationally recognized worker rights.” Id. used with increasing frequency to reach direct § 2462 (a)(4). Compliance with the standard perpetrators of human rights abuses. In addition, was based on a process whereby “any person” numerous cases have been brought against could petition the US Trade Representative to corporate defendants that have aided and terminate trade benefits to of a beneficiary abetted, or otherwise participated in, human country for noncompliance with the standard. rights violations as part of business operations However, enforcement of GSP and other in partnership with repressive governments. In administrative processes is dependent upon the this respect, the ATCA offers to provide a executive branch, and is almost always significant new aspect to human rights law and politicized as a result. reach private actors for human rights violations. The ILRF has been actively searching for an enforcement tool that would provide a B. The ILRF’s Cases Under the ATCA. fair hearing to claims of labor rights violations This section will describe the factual basis for the four of five current ATCA cases the ILRF has initiated, and will provide an * Terry Collingsworth is the Executive assessment of their status. Relevant documents Director of the International Labor Rights Fund. For may be found on ILRF’s website general information on the ILRF’s programs and activities, see www.laborrights.org.
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(www.laborrights.org). See Litigation Update, employed brutal military troops to protect its supra, for a discussion of the Unocal litigation. operations, and the company aided and abetted the human rights violations through financial and other material support to the security forces. 1. Exxon Mobil and Genocide, Murder In addition, the security forces are either and Torture in Aceh, Indonesia. – There have employees or agents of Exxon Mobil, creating been credible reports dating back several years liability based on respondeat superior or that Exxon Mobil Corporation, and its vicarious liability. predecessor companies, Mobil Oil Corporation Like Unocal, Exxon Mobil’s primary and Mobil Oil Indonesia (hereinafter defense appears to be that the human rights collectively referred to as “Exxon Mobil”), violations may very well be occurring, but the hired one or more military units of the company did not specifically intend this result, Indonesian national army, known as the Tentara and therefore the company cannot be liable. Nasional Indonesia (“TNI”), to provide Exxon Mobil asserted this position in its motion “security” for their gas extraction and to dismiss. This position goes to the heart of liquification project in Aceh, Indonesia. As whether we can use the ATCA to change the would be expected to happen with certainty, corporate mentality that somehow allows a Exxon Mobil’s use of the same brutal troops company like Exxon Mobil to defend doing that brought us East Timor as their sole security business with a known human rights violator by force has resulted in systematic torture, murder, constructing some sort of Faustian wall which rape, and acts of genocide against the local allows a company to accept the benefits of population of Achanese people. Exxon Mobil known human rights violations, and the profits has never used its considerable power over its of a project that requires the participation of the mercenary security force to demand that human human rights violator, but is not responsible for rights violations against the local population be the violations. Many of the private defendants in stopped. However, in March, 2001, when the the Nuremberg cases were charged with using civil conflict raging between Achanese slave labor procured by the Nazi regime. They separatists and the government threatened argued that although their companies benefitted Exxon Mobil’s expatriate staff, the company from the slave labor, the companies were immediately shut down the operation and required to use the slave labor, and in many demanded more security and a “guarantee” of cases, did not affirmatively intend to use slaves. safety for its employees. Never did Exxon The Nuremberg Tribunal definitively Mobil include a demand that new security established the principle that, absent a true procedures also extend to local villagers. Quite necessity defense, the literal gun to the head the contrary, a demand for more security is requiring compliance, the defendants were certain to bring more troops and more human liable for knowingly benefitting from the slave rights violations, apparently an acceptable labor. Those who opportunistically increased consequence for Exxon Mobil. production and profits based on the availability On June 20, 2001, the ILRF filed an of slave labor provided by the Nazis were ATCA claim in the Federal District Court for uniformly convicted. the District of Columbia, No. 01-1357 CIV, on The Ninth Circuit’s Unocal decision behalf of 11 villagers from Aceh who were addresses directly whether Exxon Mobil can victims of human rights abuses by Exxon defend based on its claim that it was not directly Mobil’s TNI Unit 113. The general theory of invloved in the human rights violations. Indeed, the case is that Exxon Mobil knowingly Exxon Mobil relied heavily upon Judge Lew’s
176 INTERNATIONAL CIVIL LIBERTIES REPORT grant of summary judgement in its motion to systematic human rights violations occurring in dismiss, and argued that the fact paterns were Colombia, including the specific targeting for essentially identical. One presumes that the fact murder and other human rights violations of pattern remains identical, but now the legal trade union leaders and members. conclusion has been reversed. Much of the violence against trade Exxon Mobil’s motion to dismiss is till unionists in Colombia is directed at leaders of pending. The motion was argued on April 9, unions at multinational firms, including the 2002. Following the argument, at Exxon Coca-Cola company. One union representing Mobil’s request, the court sought the views of workers at Coca-Cola, Sinaltrainal, has the State Department on the litigation. In a sustained heavy loses of leaders and members remarkable effort to seize for the executive who were employed by the company. Since at branch the right to veto litigation under federal least 1996, Sinaltrainal has been writing letters statutes, William H. Taft IV, the State to Coca-Cola and to the U.S. Embassy in Department’s Legal Advisor, submitted a letter Bogota demanding that the targeting of trade claiming that the lawsuit would interfere in U.S. union leaders at Coca-Cola bottling plants be relations with the government of Indonesia. The stopped. Neither institution favored the union letter further asserted that the litigation could with a reply, and the Government of Colombia interfere with U.S. investement in Indonesia, failed to take action to find and arrest the and explicitly asserted that it is a foreign policy paramilitary commanders, who in some cases, objective of the U.S. government to advance the were specifically identified by victims or other interests of U.S. businesses abroad. This blatant witnesses. effort to abrogate the separation of powers Having no other options and facing doctrine will hopefully not be successful. The ongoing violence, Sinaltrainal requested ILRF court has yet to issue an opinion on the pending and the United Steelworkers Union to file an motion to dismiss, but did permit the parties to ATCA case against Coca-Cola and its brief the issue of the legal effect, if any, of the Colombian bottlers. The case was filed in the State Department’s letter. Federal District Court for the Southern District of Florida, No. 01-03208-CIV, on July 21, 2001. 2. Coca-Cola and Anti-Union Death Plaintiffs are Sinaltrainal, and five individuals Squads in Colombia. – Colombia is a human who have been murdered, tortured, and/or rights basket case due to lawless activities of the unlawfully detained. They are seeking to hold right wing paramilitaries, as well as the leftist Coca-Cola, and two of its Colombian bottlers guerillas. The paramilitaries in Colombia are liable for using paramilitaries to engage in anti- particularly well known for murdering, union violence. abducting and torturing trade union leaders. For This case also presents the issue of the past 10 years, Columbia has lead the world corporate liability for acts of subsidiaries or in the number of murders of trade unionists. agents. There is no question, based upon More than 52 trade union leaders have been eyewitness testimony and records from killed so far this year, 128 were killed in the investigations of the Government of Colombia, year 2000, and in the last 10 years, over 1,500 that, for example, Isidro Gil was murdered have been murdered. A much larger number inside the Coca-Cola bottling plant in Carepa by have been subjected to torture, including regular paramilitaries that were invited into the plant by threats of death, unlawful detention, and the manager of the plant. The day after Mr. kidnapping. For years there has been Gil’s murder, the paramilitaries returned to the comprehensive public reporting on the plant to complete their task of destroying the
177 INTERNATIONAL CIVIL LIBERTIES REPORT trade union. The paramilitaries collected the Canadian Labour Congress, has recently resignation letters of the remaining union joined. Information about the campaign is members, after promising that those who available at www.Cokewatch.org. The refused to resign would meet the same fate as campaign provides a hopeful model of Isidro Gil. Coca-Cola’s defense is not that the cooperation to change corporate behavior that murder and terrorism did not occur. Rather, supports or tolerates human rights violations. Coca Cola argues that it, the most international of companies, cannot be liable in a U.S. federal 3. Del Monte’s Death Squads in court for what happened in Colombia. Coca- Guatemala – Fresh Del Monte Produce (Del Cola also argues that it does not “own” and Monte) is one of the world’s largest producers therefore does not control, the bottling plants in of fresh fruit products. In Guatemala, Del Monte Colombia. Again, the case presents an is a successor to the notorious United Fruit opportunity to develop a standard under which a Company, and it owns and operates several multinational company cannot have the best of banana plantations there. These plantations have both worlds by profiting from human rights long been unionized by SITRABI, one of the violations but limiting liability to a local entity most respected and professional unions in that is a mere facilitator for the parent Guatemala. In 1999, Del Monte and SITRABI company’s operations. were in tense negotiations regarding a massive The court held oral argument in April, layoff of workers in violation of the collective 2002, and no decision has been issued yet. bargaining agreement. At an impasse that left An additional feature of the Coca-Cola hundreds of union members out of work, the litigation is that it has served to focus a leaders of SITRABI announced that there would campaign seeking to get Coca-Cola to accept be a walk out the next day of the remaining responsibility for violence in its bottling plants, workers. The evening before the planned work wholly apart from any potential legal liability stoppage, Del Monte employees organized a under the ATCA. The campaign is using factual violent group of local thugs and abducted the information developed from the investigations five key leaders of SITRABI. They were taken connected to the litigation, as well as traditional to their own headquarters and tortured with guns human rights reports, to support specific and threats of death. After enduring the torture demands to Coca-Cola to publically denounce for several hours, the union leaders agreed to the violence in Colombia, to make clear to the call off the work stoppage, resign from the paramilitaries that such violence is not in Coca- union, and leave the area. Two of the leaders Cola’s interest, to cease all formal or informal were forced with guns to their heads to make an working relationships between paramilitary announcement on the plantation radio system forces and managers of the bottling plants, to that the work stoppage was canceled. Then, they agree to a specific provision that prohibits Coca- signed personalized resignation letters that had Cola bottling plants from participating in violent been prepared by Del Monte employees. activities, and permit trade unions representing Eventually, after further torture, they were told Coca-Cola workers to monitor compliance with they could leave, but were assured that they the provision. The major participants in the would be killed if they ever returned to the campaign in the U.S. are the International plantation area. Brotherhood of Teamsters, the United The five leaders escaped to Guatemala Steelworkers Union, the International Food and City, and filed criminal charges against their Commercial Workers Union, the U.S. Labor attackers. The U.S. embassy encouraged this as Education Project, and the ILRF. In addition, a test case of the post-peace accords justice
178 INTERNATIONAL CIVIL LIBERTIES REPORT system. Regrettably, the legal system reverted to fumigants on coca plants in Colombia to form and the attackers were found guilty of eradicate a major source of the cocaine lesser crimes. They were permitted to walk out exported to the U.S. The plan is inherently of the court after paying nominal fines. As all flawed. There are serious, well documented concerned were convinced that the five concerns that the spray is harmful to humans SITRABI leaders would be killed in retaliation and livestock, and that it kills legitimate food for bringing charges against Del Monte’s thugs, crops in the area, such as corn and yucca. the U.S. embassy arranged for work visas and Further, even if it did destroy coca plants, the the five leaders and their families relocated to small farmers who relied upon the sale of their the U.S., and Del Monte bought the plane coca crop are left with no livelihood, often tickets Shortly thereafter, the ILRF filed an driving them to join the guerillas to have access ATCA case on behalf of the five former to food. Wholly apart from these major effects SITRABI leaders seeking damages from Del documented in the target area of Colombia, Monte for torture and unlawful detention. The DynCorp is also spraying farmers on the case, No. 01-3399-CIV, was filed in the Federal Ecuadoran side of the border with the same District Court for the Southern District of effects. In this new era of heightened concern Miami. about terrorism, a group of at least 10,000 The Del Monte case is somewhat Ecuadoran subsistence farmers, who have no unique in that there should be no question of the dispute with the U.S. government and who do parent company’s legal liability because Del not cultivate illegal drug crops, are being Monte is structured to ensure that the parent subjected to sustained, deadly aerial assaults retains control and ownership of local financed by the U.S. government through operations. Del Monte adds to the development DynCorp. of the law because the case directly raises issues A group of villagers who are all of using otherwise actionable violence in suffering serious health effects from the violation of the law of nations to suppress trade fumigant, and one couple whose child died from union rights. Thus, the plaintiffs are seeking to exposure to the poison, initiated a class action hold Del Mote liable for violations of the lawsuit against DynCorp charging the company fundamental rights to associate, organize and with wrongfully spraying them with a poison bargain collectively, rights that are central to that, whatever the justification of Plan trade unionism. Colombia, was not supposed to hit Ecuadorans. The court has yet to schedule an The ATCA case charges DynCorp with murder, argument. After permitting initial discovery and wrongful death, crimes against humanity, and setting a trial date for March 10, 2003, the court numerous other property crimes. The case was stayed further discovery pending a decision on filed in Federal District Court for the District of Del Monte’s motion to dismiss. The briefing Columbia, No. 1:01CV01908, moments before was completed in July, 2002, and the parties are the terrorist attacks on New York and awaiting a decision. Washington, D.C. While the case does not present 4. DynCorp’s Air Strikes Against traditional issues of labor rights violations in the Ecuadoran Farmers – The controversial “Plan global economy, it is an extremely important Colombia” includes a cruel throwback opportunity to clarify what constitutes terrorism, concocted by what must have been frustrated and whether one country’s objections, however commanders of the war in Vietnam – the US well meaning, can ever justify violating the government contracted with DynCorp to spray human rights of innocent civilians. Filed on
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September 11, 2001, just moments before the in front of the other workers. Orcasita was taken federal courts were closed due to the terrorist away in a car, and his dead body, whcih showed attacks on New York and Washington, D.C., the clear evidence that he ahd been tortured was case is more than a symbol of the other side of found later that day. The union was paralyzed the coin -- indeed, the other side of the world. without its two leaders, and for a time no one The U.S. cannot maintain its pose of righteous would take over the leadership posts out of fear indignation if it allows its own forces and that they too would be killed. Finally, in resources to be used against noncombatant September, 2001, Gustavo Soler Mora stepped civilians. up to assume the Presidency. He renewed Dyncorp filed a motion to dismiss in negotiations with Drummond, and expressly January, 2002, raising the political question sought to bargain for better security doctrine as its primary defense. The issues were arrangements for the workers. On October 5, fully briefed by April, 2002, and the case 2001, within weeks of becoming President, he remains pending the court’s decision on the too was pulled off a bus and mrudered by motion. paramilitaries. The ILRF represents the surviving 5. The Assassination of Union Leaders family members of the three murdered trade at Drummond Coal – In March, 2002, the union leaders. The case was filed in the Federal ILRF filed another case addressing the ongoing District Court for the Northern District of violance against trade union leaders in Alabama (CV-02-BE-0665-W). Drummond Colombia. This case, against Drummond Coal, filed a motion to dismiss, and the issues have an Alabama corproation that pruchased a large been briefed. The court heard argument in mining operation in Colombia, invloves the September, 2002, and the parties are awaiting a serial assasination of trade union leaders decision. represeanting the workers at Drummond’s Colombian mine. The workers are represented Conclusion. by an well-established union, Plaintiff SINTRAMIENERGETICA. The leaders of the The ATCA cases brought by the ILRF union, in early 2001, were engaged in heated and others highlight the crisis of enforcement of negotations with Drummond over several key human rights standards. Absent the prospect of a issues, including the demand that the company viable ATCA case, there would be no recourse provde better security for workers to protect for the victims of international human rights them from paramilitaries that were based, along violationss. These companies are confident that with regular military, on Drummond’s property. the host governments will not enforce local laws According to several witnesses, the because the governments are themselves paramilitaries were operating as a private participants in the human rights violations. This security force to protect Drummond’s facilitaies frames the reality of the global economy. from the FARC, the leftist guerrilas. On March Governments that continue to violate human 12, 2001, in the midst of the negotiations, two of rights, or that are willing to overlook violations the union leaders, Preisdent Valmore Lacarno by private parties in order to encourage Rodriquez, and Vice President Victor Hugo investment, and private investors willing to Orcasita Amaya, were pulled off a compnay bus work with and support those rogue by paramiltaries who said in fornt of all of the governments, are the beneficiaries of a global workers on the bus, “these two have a problem economy that trusts no one on economic with Drummond.” Lacarno was shot in the head
180 INTERNATIONAL CIVIL LIBERTIES REPORT matters, but relies essentially upon voluntary compliance with human rights standards. Until there is some globally applicable mechanism to address labor and human rights violations, victories in the ATCA cases will do much to remedy current violations and deter future violations.
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19. The ACLU/North Carolina Seventh Annual International Human Committee on International Human Rights Award Dinner honoring Mary- Rights Lou Leiser Smith of Chapel Hill, who has been a leader in education and By: Slater Newman* advocacy for a just peace in the Middle East. Our Committee was founded in 1989, at December 9 (Monday) 5:30 about the time that recently-elected ACLU p.m. Raleigh. Rotunda of the Stste President Nadine Strossen called for increased Capitol. Celebration of the 54th ACLU involvement in international civil anniversary of the Universal liberties. (The founding of this International Declaration of Human Rights and of the Civil Liberties Report may also have occurred at 211th anniversary of the Bill of Rights. about this time). Not long after, our affiliate was Speaker - Rev. W. W. Finlator, former among the founding members of the Human National Vice-President of the ACLU. Rights Coalition of North Carolina, and has December 10 (Tuesday) noon. since, mainly through our Committee, been Greenville. Pitt County courthouse. continually involved in its activities. Our Wake Reading of the Universal Declaration of County and Western North Carolina chapters Human Rights and of the Bill of Rights. are among the 31 local and statewide groups December 10 (Tuesday) noon. which support the Coalition. (See current listing Raleigh. Wake County court house. below). Reading of gender-neutral version of the The purpose of the Coalition is "to Universal Declaration of Human Rights. enhance among citizens of our state the Dutch-treat lunch, "birthday" cake and knowledge, understanding and appreciation of singing to follow. human rights as elucidated in such documents as December 13 (Friday) noon. the Universal Declaration of Human Rights and Chapel Hill. Downtown post office. the Bill of Rights of the United States Reading of the Bill of Rights. Constitution." The Coalition is affiliated with Most of the activities were the Children's Rights Network, with the NGO sponsored by ACLU chapters and Coalition for an International Criminal Court ACLU members (in communities in and with North Carolinians for the Ratification which there are no chapters). of CEDAW (Convention on the Elimination of During United Nations Week, All Forms of Discrimination Against Women). the Coalition cosponsored (with the 1. This year Governor Easley and United Nations Association of Wake the Mayors of Asheville, Carrboro, Chapel Hill, County) a public reading in downtown Greenville, Raleigh, Reidsville and Thomasville Raleigh of the Universal Declaration of each issued a proclamation for Human Rights Human Rights by 5th- and 6th-grade Day/Week and/or Bill of Rights Day. Events students from the Emma Conn Global scheduled for this week included: Communications Elementary School. December 5 (Thursday). 6:30 p.m. Raleigh. NCState University Club. 2. Our Committee is comprised of six members, two of whom are members of the affiliate Board of Directors. We have kept the ACLU/NC affiliate Board apprised of our * Chair, ACLU/NC Committee on activities through written (and sometimes oral) International Human Rights
181 INTERNATIONAL CIVIL LIBERTIES REPORT reports at each Board meeting, and have kept North Carolina Association of Women the ACLU/NC membership informed through Attorneys articles we have prepared for LIBERTY, the North Carolina Council of Churches affiliate quarterly newsletter. North Carolina Human Relations Commission 3. We encourage each affiliate to North Carolina NOW establish a committee on international human North Carolina Peace Action rights. We would be pleased to help in any way North Carolina Society for Ethical Culture we can. We encourage, also, the establishment Pullen Memorial Baptist Church: Peace and of statewide (and/or local) human-rights Justice Mission Group (Raleigh) coalitions. Toward that end a list of our Raleigh-Apex Branch, NAACP Coalition's supporting groups is appended, Raleigh Human Resources and Human indicative of the kinds of organizations which Relations Advisory Commission might participate. Raleigh NOW Finally,we are interested in learning Raleigh Peace Action about the activities of committees on Raleigh Religious Society of Friends international human rights (if such exist) in United Nations Association (North Carolina other affiliates and about other statewide and Division) local international human-rights coalitions. United Nations Association (Wake County Please contact: Slater Newman, Chair chapter) ACLU/NC Committee on International Human United Nations Association (West Triangle Rights 315 Shepherd Street Raleigh, North chapter) Carolina 27607 Phone (919) 821-2014 FAX Unitarian-Universalist Fellowship of Raleigh (919) 828-2064 e-mail: Women's International League for Peace and [email protected] Freedom (Chapel Hill/Durham branch)
Supporting groups are: American Civil Liberties Union (North Carolina affiliate) American Civil Liberties Union (Wake County chapter) American Civil Liberties Union (Western North Carolina chapter) Amnesty International (Group 213) Community Church of Chapel Hill Community United Church of Christ (Raleigh) Interfaith Alliance of Wake County Martin Luther King, Jr. Memorial Committee National Association of Social Workers (NC chapter) North Carolina Academy of Trial Lawyers North Carolina AFL-CIO North Carolina Associsation of Black Lawyers North Carolina Association of Educators North Carolina Association of Human Rights Workers
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