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The Human Rights Blog of the Leitner Center for International Law and Justice


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Protecting abortion as a human right in the U.S.

By Elizabeth Gyori

Just days after the Supreme Court struck down a restrictive Texas abortion clinics law, the state is now seeking to force all fetal tissue to be cremated or buried after abortions. In June, Louisiana passed a law banning the most common and safest form of abortion during the second trimester, effectively forcing women to undergo less safe abortion procedures or to not get abortions after 12 weeks of pregnancy. Alabama’s state legislature passed a bill in May restricting abortion clinics from operating within 2,000 feet of public elementary and middle schools. A new law in Indiana bars women from getting abortions if a fetus’ race, gender or genetic disability is the motivating factor. Bans on abortions at 20 weeks of pregnancy—when the fetus is still not viable outside the mother’s womb—are in effect in many states across the U.S. These are only some of the most recent draconian laws passed by U.S. states to restrict women’s access to abortion and to curtail women’s human and reproductive rights. As attacks on a woman’s right to control her own body increase in frequency and fervor, it is more urgent than ever to protect a woman’s right to abortion as a fundamental human right.

Abortion clinics are closing down at an alarming rate across the U.S., in both blue states and red states. While statistics on abortion clinics closures are scarce, one report by Bloomberg estimated that at least 162 abortion clinics in the U.S. stopped providing services or shut down entirely since 2011. Only 21 abortion providers have opened up to take their place. In many states, just a few (or sometimes, just one) abortion clinics service the entire area. Many women are being forced to travel hours and across state lines to obtain legal, timely and safe abortions. The drastic decrease in abortion clinics is largely due to various laws passed around the country placing medically unnecessary restrictions on doctors and abortion providers. These include requiring doctors to have admitting privileges at or an affiliation with a nearby hospital, imposing burdensome licensing requirements for abortion clinics (i.e. being licensed as ambulatory surgical centers), excessively regulating the facilities where an abortion will be performed and criminalizing the most common forms of abortion. (These first two practices were ruled unconstitutional in the 2016 landmark case, Whole Woman’s Health v. Hellerstedt, by the Supreme Court, and will likely see legal challenges in many states across the U.S. Despite this, history tells us that more creative and restrictive abortion laws will only replace them.)

Beyond these attacks on the clinics themselves, states have passed laws imposing medically unnecessary wait times and counseling on women seeking abortions, as well as restrictions on insurance coverage and minors’ access to abortions. Coupled with the sharp decline in abortion clinics, women all over the U.S. are being denied the health care that they need, deserve and to which they have a right. They are faced with the devastating reality that they no longer have full control over their bodies, their labor, their choice of motherhood. And they are seeing that if they want to take back control—sometimes through purchasing abortion-inducing medication on the internet, as Purvi Patel did in Indiana—they will be arrested, jailed, criminalized and even demonized.

In recent years, abortion access and reproductive rights have been the most threatened since Roe v. Wade legalized abortion in the U.S. in 1973. The debate over abortion has often centered on morality and religion, rather than the rights of women. As states pass more and more laws restricting abortion in one way or another (with, perhaps, the ultimate goal of banning abortion altogether), we must understand that not only are these laws unconstitutional, but they are in violation of the U.S.’ human rights obligations under international law.

Abortion is a critical component of comprehensive reproductive health care for women. Denying women access to this procedure violates women’s right to life and health care. Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, guarantees the right to life, and governments are required to take the necessary steps (“positive measures”) to preserve life. Since reproductive health care is necessary for women’s survival, access to safe and legal abortion is protected under the ICCPR. Not only must governments respect this right, but states are also required to ensure that women do not risk their lives by seeking unsafe and illegal abortions due to restrictive abortion laws.

On several occasions, the Human Rights Committee has expressed concern about laws that restrict abortion, make abortion inaccessible or discourage safe and legal abortion services, and the Committee has consistently recommended loosening abortion laws. Earlier this year, the Committee affirmed that abortion is a human right under the ICCPR in a landmark case in Peru, in which a woman who was denied a medically necessary abortion received reparations from the government. In June, the Human Rights Committee ruled that Ireland’s abortion ban and the criminalization of access to abortion amounted to human rights violations. After the U.N. Working Group on the issue of discrimination against women in law and in practice conducted a 10-day fact-finding mission in the U.S., they noted in their 2015 preliminarily findings that women in the U.S. are facing increasing barriers to safe and legal reproductive care, which does not meet international human rights standards. They group also stressed that freedom of religion cannot justify the denial of reproductive health care.

Furthermore, laws that restrict access to abortion are discriminatory towards women, as they deny only women’s right to life and necessary health care. They also discriminate against female racial minorities and poor women, who are disproportionately affected by abortion bans and restrictions in the U.S. Since Articles 3 and 26 of the ICCPR protect the equal enjoyment of the rights stipulated in the covenant, anti-abortion laws violate women’s right to be free from gender-, race- and class-based discrimination under the ICCPR.

Beyond this, forcing women to carry pregnancies to term or to seek out unsafe, clandestine abortions is cruel, inhuman and even torturous. Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the U.S. is also a party, guarantees individuals the right to be free from torture and cruel, inhuman or degrading treatment. The U.N. Committee against Torture has recognized that forcing women to carry pregnancies to term or to seek out illegal and unsafe abortions (in which their lives may be placed in danger) qualifies as cruel, inhumane or degrading treatment. Juan Mendez, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, classified lack of access to abortion as torture in his 2013 report. Furthermore, complete bans on abortion violate the rights guaranteed under CAT, according to the Committee, especially since these bans force women to carry pregnancies that result from rape or incest to term. Forced pregnancy, especially as a result of rape and incest, can be incredibly traumatizing, both physically and emotionally.

Recent attacks on abortion are fundamentally about controlling—and arguably, torturing—women. These restrictive laws not only violate women’s basic human rights, but they also contribute to an increasingly polarized, vicious and violent political and social climate. In March 2015, Donald Trump, the presumptive Republican nominee for president, said that women should be “punished” for getting abortions illegally. On Nov. 27, 2015, three people were shot dead and nine people were injured during a shooting at a Planned Parenthood in Colorado. Robert L. Dear Jr., the accused shooter, yelled that he was “a warrior for the babies” during his court hearing, making it clear that his acts of violence were motivated by anti-abortion views. Incidents of violence against and harassment of abortion providers, including arson, vandalism and attempted murder, have increased over the past few years. And groups of anti-abortion activists regularly gather near abortion clinics to terrorize women seeking to exercise their reproductive rights and control over their own lives.

Pro-choice advocates have long worked to establish and portray abortion as a constitutional right, recognized and protected by Roe v. Wade and derived from the constitutional right to privacy. While the latest Supreme Court case was a distinct victory for women and reproductive rights, restrictive laws on abortion like the ones mentioned before have slowly and will likely continue to erode women’s right to abortion. As women face sustained and relentless attacks on their reproductive rights, we must work to protect abortion not just as a constitutional right, but also as a fundamental human right.

Elizabeth Gyori is the Editor of Rights Wire.

The views expressed in this post remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Steve Rainwater/Creative Commons


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Using technology to fight terrorism and ensure human rights (part 2 of 2)

By Shruti Banerjee

Recent terrorist attacks in San Bernardino, Brussels and South Carolina have led government officials to increase pressure on major tech companies to take greater measures to help security agencies monitor terrorist activities. This has led to a vigorous debate on the issues of corporate responsibility, individual privacy rights and the government’s ability to monitor terrorist activities. This is the second post in a two-part series about technology, terrorism and human rights. This post will analyze the various positions in this debate, and consider the how the government and tech companies can work together to effectively combat the root causes of radicalization and terrorism while still upholding fundamental human rights.

THE ENCRYPTION DEBATE

With the rise of internet communications, terrorist groups have been using email, messaging applications, online forums and other internet tools to recruit members and plan attacks. Many government officials have firmly argued that tech companies must take greater measures to provide security agencies with data that will help them monitor this extremist activity.

But even if many companies wanted to comply, private messaging systems such as WhatsApp and iMessage automatically encrypt messages, meaning that they are secretly encoded and cannot be read without a key. Thus, companies cannot turn over messages to law enforcement because they have no mechanism of retrieving them. This predicament has sparked a fierce debate over how to monitor and combat terrorist activities on the internet. Many officials argue that tech companies there should create a backdoor—a way for a “secure” system to be accessed through coding or other vulnerabilities—in various applications for law enforcement officials to use when investigating criminal activity.

However, critics, including many leading figures in the tech industry, caution that creating a backdoor to encrypted applications may open a whole new can of worms. Tech companies point out that if any backdoor exists, hackers will eventually find it and reduce data security for all individuals. The BBC notes that if major companies were required by law to introduce back doors, terrorists would simply utilize other platforms, such as free add-on applications that automatically encrypt messages. This would make gathering information even more difficult for security agencies. A backdoor would leave services for innocent individuals far less secure, while dangerous people would be operating on systems that are even harder to gain access to. Furthermore, tech companies such as Microsoft, Google, Apple and Yahoo vowed to protect the privacy of their users from government surveillance by making encryption a default option after the NSA surveillance scandal in the US and UK. Opening up a backdoor would backslide on their promise and endanger individuals’ right privacy on the internet.

Aside from privacy and security concerns, the efficient use of these back doors would also be a challenge. While implementing a system that scanned every online message for extremist or terrorist keywords and hate speech is technically feasible, with approximately 1.3 billion internet users around the world, the number of cases that could be labeled as potential threats would be overwhelmingly high. This type of wide-scale reporting to authorities would be an immense undertaking for tech companies like Facebook, according to the BBC.

CURBING TERRORISM IN OTHER WAYS

Despite the impasse between the government and tech companies on the encryption debate, there are still a myriad of ways tech companies can and do cooperate with the government to help tackle terrorism. For example, Alan Woodward, a cybercrime consultant, says that encrypted messages can be useful in combating terrorist attacks because they still reveal metadata, such as information about who talked to whom and for how long. He explained that metadata was used to arrest the attackers who carried out the attacks in Paris in November 2015. Security agencies can use link analysis to figure out communication patterns and identify potential threats or sources of information.

Internet Protocol addresses (IP addresses), unique identifying numbers assigned to any devices connected to the internet, are also important in the fight against extremism and terrorism. Tracing the IP addresses of recruitment messages and their followers can help intelligence agencies determine the identities of supporters and potential recruits. Tech companies such as Google have complied with the government’s requests for IP address information and if tech companies continue to help track encrypted messages and IP addresses, they could contribute immensely to the fight for security.

When it comes to website content, tech companies could work to block, delete or monitor extremist and hateful content. Companies such as Google do not allow hateful content that incites violence or extremely “graphic or gratuitous” violent content on their platforms. This is usually taken to include violent videos of beheadings used by the Islamic State of Iraq and Syria (ISIS) as scare tactics and recruitment messages. However, since there is no algorithm that can prevent the uploading of violent or extremist content, companies are largely dependent on users to flag inappropriate content, which is typically removed within a few hours. Similarly, other tech companies do not have a mechanism to stop the creation of new extremist websites. While Europe is developing a police team specializing in monitoring ISIS terrorist activities and blocking jihadi sites online, developing a way to quickly delete or prevent the creation of these sites may be helpful. In instances when leaving websites or forums up may be helpful, tech companies and the government could work to monitor or infiltrate extremist groups to gather intelligence, as has already been done by Ghost Security Group, a hacker group committed to the fight against extremism.

HUMAN RIGHTS IMPLICATIONS

As human rights advocates have pointed out, if tech companies are pressured to lessen encryption, create backdoors for the government to investigate terrorist activities and hand over user data, it could be problematic for the basic privacy and free speech rights of many individuals. Many notable factors make it hard for the people to believe that turning over more data to the government will actually make society safer. Firstly, there has been significant mistrust of the government after the U.S. National Security Agency surveillance scandal was exposed by Edward Snowden. After this leak, governments around the world considered and passed pieces of legislation allowing for widespread surveillance of their populace. To address this issue, the United Nations General Assembly adopted resolution 68/167 in December 2013, which reaffirmed internet and technology users’ right to privacy in the digital age.

Secondly, even if the government is given users’ data, there is a good chance that they will not use it. Daryl Johnson, former Analyst at the U.S. Department of Homeland Security, pointed out that right-wing extremist groups were not being monitored effectively (or at all) in the U.S. despite the sharp increase in domestic terrorism carried out by right-wing groups. Right-wing terrorists, such as Dylann Roof and Timothy McVeigh, are known for leaving hateful online manifestos and plans of action. This information was public and the government had full access to it. Instances like these indicate that even if the government is granted access to personal information of individuals, there is no guarantee this data will be analyzed effectively and accurately.

Moreover, several national laws, such as the U.S. Patriot Act, already offer the government significant access to the online activities of individuals and have been criticized for their overreach and lack of privacy protection. After the Charlie Hebdo attacks, France passed a sweeping surveillance bill, similar to the U.S. Patriot Act, to which the U.N. Human Rights Council voiced serious concern for its lack of oversight. Prime Minister Manuel Valle responded to the passage of this bill by saying, “France now has a secure framework against terrorism.” The most recent attacks in Paris, which took place after this law went into effect, suggest that sweeping surveillance powers do not function as a “secure framework against terrorism.” Rather, tech companies and the government need to work together to create a safer system that helps monitor hate speech and terrorist recruitment methods while protecting individual privacy rights.

WHAT WE CAN DO

It is clear that reactionary measures will not prevent future terrorist attacks. U.S. Government forces killed Osama Bin Laden, but now has to contend with ISIS. Hundreds of jihadist sites and accounts have been shut down, just to see more accounts opened. The U.S. and France passed bills granting the government sweeping surveillance powers, which did not prevent the most recent attacks in Paris and San Bernardino. While we focus on foreign terrorist threats, right-wing extremist groups are allowed to organize with almost no oversight and consequences. Effectively combating terrorism will require a two-pronged approach: (1) the government must attack the root of the problem by understanding the socioeconomic conditions which create terrorist breeding grounds, promote recruitment and allow for certain threats to go overlooked; and (2) the government and tech companies must find a way to work together to enhance security and stop hateful speech while simultaneously protecting privacy and free speech rights.

David Mair, a cyber-terrorism researcher at Swansea University, told the BBC that poverty, social exclusion and a lack of positive role models for young Muslim men all drive radicalization. Tackling these core issues will help the West overcome credibility issues with potential extremist recruits and engage individuals in more meaningful ways. He explained that extremist groups are reaching out to alienated young men in the West and offering them an opportunity to join a brotherhood in Syria where they can fit in. Mair argued that this propaganda can be countered by demonstrating why life under ISIS is not utopian and how the religious arguments made by these extremist groups are false. The government must also act to counter the drastic increase in hate crimes against Muslims after the Paris attacks. These bias crimes further exacerbate racial and religious tensions, and promote further radicalization instead of combating the root of the problem.

In line with these actions, spreading truthful facts and thwarting hate speech is also necessary in combating terrorism. After a recent attack on a Planned Parenthood, the Governor of Colorado noted that it was time to tone down the rhetoric that “is inflaming people to the point where they can’t stand it, and they go out and they lose connection with reality in some way and commit these acts of unthinkable violence.” We must do more to monitor and stop right-wing extremism and hate speech that incites violence.

Responding with force after lives have been lost is a reactionary measure that will not eradicate the root of the problem. Our methods to combat terrorism have been failing, and we need to start attacking terrorism comprehensively, from implementing new ways to track terrorist activity online to preventing radicalization and the socioeconomic conditions that foster terrorist breeding grounds. Tech companies and the government can also work together to implement creative mechanisms that monitor important data and thwart hate or extremist speech. If tech companies keep moving in a socially-responsible direction and the government begins to effectively and accurately analyze the data they have, then the internet can become a powerful tool in preventing future terrorist attacks in a rights-respecting way. This type of private-public partnership, coupled with policies promoting education, health care, economic stability and human rights, will be the only effective way to prevent terrorism.

Shruti Banerjee is a 2L at Fordham Law School.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Yuri Samoilov/Creative Commons


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Exploring the links between technology, terrorism and human rights (part 1 of 2)

By Shruti Banerjee

The recent terrorist attacks in Belgium and France as well as the rise of right-wing violence in the U.S. have raised many questions about the role tech companies and internet service providers play in monitoring terrorist recruitment and activities. While some terrorists, such as Dylann Roof, who shot nine African-Americans in a South Carolina church, leave blatant manifestos online , others, such as the Islamic State in Iraq and Syria (ISIS) and right-wing groups in Europe, use the internet in more nuanced ways to recruit members and plan attacks. To effectively prevent terrorist activity we need to examine each of these methods.

This is the first in a two-part series about technology, terrorism and human rights. This post will explore how the internet has been used by terrorist groups to recruit members and plan attacks. A second post will discuss the corporate responsibility of tech companies in national security and human rights issues. It will also explore how people are using the internet to combat terrorism and how we can continue to prevent radicalization leading to attacks.

ONLINE RADICALIZATION AND RECRUITMENT

Understanding how technology has transformed the way we communicate is particularly important in an era when internet communication and mass messaging have been used as tools by militant organizations such as ISIS and domestic right-wing terrorist groups to promote their message and recruit new members.

Recruitment methods used by extremist Islamic groups are more nuanced and refined than blatant proclamations to support terrorist organizations. David Mair, a cyber-terrorism researcher at Swansea University, collaborated with the University of Massachusetts’ Center for Terrorism and Security Studies to analyze jihadist messages in online terrorist magazines. He notes there are key differences in ideology that drove messaging – most notably between the Islamic State and Al-Qaeda: while ISIS’ propaganda promotes the creation of a state governed by Sharia law, Al-Qaeda’s message typically focuses on jihad against oppressive western nations and promoting individuals to act alone in planning and executing attacks. These recruitment and attack planning methods are fundamentally different and require separate countering strategies, Mair said.

Muslim extremists have used various types of subtle propaganda to recruit members, such as promoting news stories of Western oppression and disguising extremist sites as religious sites. In an interview with the BBC, Sajid, a 16-year-old student in London whose brother was radicalized discusses how he was almost radicalized too. He opened a fake twitter account to learn more about ISIS after his brother left for Syria to join them. He told BBC over an encrypted chat application that he was surprised that no one in ISIS actually told him to support ISIS or move to Syria. The process of radicalization happened when he watched videos and encountered messages about Sunni oppression. This propaganda is used to incite anger in its viewers and create a community. Sajid said he caught himself becoming “heart-hardened” by this propaganda, but was eventually able to reject ISIS’s message. “After reading about Shia crimes against local Sunnis, I remember watching a video of an execution of an Iraqi soldier and thinking, ‘Good.’ This shocked me afterwards…I questioned my conscience, and my results were that I did not support ISIS with my heart at all,” Sajid said in the interview.

This type of subtle propaganda makes it more difficult to discern and dissuade potential recruits because actual news of attacks can be used as propaganda. Since it would pose a freedom of speech issue to censor these types of news stories, governments have a hard time cracking down on radicalization and recruitment. Monitoring and curbing extremist propaganda becomes even more complicated when it comes to religious messages aimed at recruiting young women and men. Extremists target young adults through websites posing as educational in nature, Sara Khan, Director at the anti-extremist group Inspire, explained to BBC News in an interview. Youth innocently searching for information about their faith can be unaware they have stumbled across extremist groups, Khan said. These recruitment sites often utilize religious language to convince the reader that their view is the proper interpretation of Islam. They exploit religion to recruit youth who have not learned much about their faith and cannot critically analyze the extremist interpretation.

Xenophobia in western countries and promises of a utopian state are other tools used by terrorists to recruit members from the west, Qari Asim, Senior Imam at Makkah Mosque in the United Kingdom, said in an interview with BBC. He recently visited Calais, a make-shift refugee camp in France, and met refugees who fled ISIS-controlled regions. These refugees explained that some young Muslims are leaving Britain to join ISIS because they didn’t feel like they belonged in England. According to Asim, ISIS is running a “sophisticated media strategy” to promote an anti-establishment view that appeals to many young people. He and his group are actively trying to prevent recruitment by utilizing social media strategies to engage with young people and spread truthful messages exposing the unpleasant realities of life under ISIS and combating xenophobia in the west.

Right-wing terrorist groups in Europe and the United States have used similar nuanced methods to spread their propaganda. Right-wing groups use the internet and technology to recruit members, create “virtual communities,” organize demonstrations and campaigns and promote violence. Like religious extremist organizations, these groups are targeting the youth and using the anonymity of the internet as cover. Essentially, they are trying to gain support by promoting “distorted accounts of social circumstances” on the internet, according to a report by the domestic intelligence service of Germany, Bundesamt für Verfassungsschutz (BfV). This report goes on to explain that controversial topics, such as immigration policy, are covered from an ideological point of view, making the intentions of the extremist less obvious to many readers.

Furthermore, right-wing extremist groups are often allowed to organize and disseminate their propaganda without much push-back from the government. In fact, the U.S. government has tended to focus on foreign terrorist threats, despite how domestic terrorism has killed more Americans since 9/11. Especially in the U.S., there is virtually no monitoring of right-wing extremist groups. The wide availability of this right-wing extremist propaganda and manifestos on the internet has led to radicalization and even attacks, such as Benjamin Smith’s shooting spree targeting minorities in Illinois and Indiana in 1999.

MASKING THEIR TRACKS

Extremists are cautious about internet security while using social media, blogs and video sites to recruit members and mobilize. ISIS militants avoid using high-profile communication companies, such as iMessage or WhatsApp, Peter Sommer, a digital forensics expert, told the BBC. Rather, terrorists efficiently find systems that offer its users simple ways to use encryption, a way of encoding messages so that only authorized people can read them, Sommer said. BfV reported that right-wing extremist circles have also started offering internet “security trainings” to teach others how to encrypt data.

Similarly, jihadi bulletin boards are filled with posts about free application add-ons to encrypt messages, Alan Woodward, a security expert, told the BBC. These encrypted messages pose a large hurdle for government agencies trying to monitor extremist activities and prevent attacks. The availability of encrypted systems makes the government security agencies crackdown “absolutely pointless” because terrorist are using off the record protocol, providing them end-to-end encryption, Woodward explained. This means that it is incredibly difficult for anyone, including tech companies providing these services, to intercept and decode the message.

Going after big tech firms would not entirely solve the problem, Woodward said, because even if these companies stopped providing off the record protocol, there are numerous sites providing free add-ons to encrypt messages. Since these encrypted messages are significantly harder to monitor than open manifestos, this has led to a contentious debate between tech companies who provide these services and the government who needs to stop terrorist activities about the responsibility of private companies in the fight against terrorism.

CONCLUSION

From New York to Bombay and Paris to Beirut, we can all fall victim to the devastation caused by terrorism, which poses a significant threat to security, stability and human rights. Our socioeconomic status and borders cannot protect us, leaving us all united under a common threat. The pervasiveness of this threat makes it even more important to understand how we can effectively stop it. This could mean countering the various recruitment methods used by extremist groups or urging the government and tech companies to work together to monitor terrorist activities on the internet. The second post in this series will discuss the debate between tech firms and the government over access to encrypted messages, privacy concerns and collaborative, rights-respecting solutions to some issues posed by terrorism.

Shruti Banerjee is a 2L at Fordham Law School.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Bernardo R/Creative Commons


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Saudi Arabia’s dismal human rights record and the complacency of the international community

By Sarah Ben-Moussa

On Jan. 2nd, 2016, Saudi Arabia executed 47 people, including Sheikh Nimr al-Nimr, a Shiite cleric who was convicted for speaking out against the Saudi Arabian regime and calling for more rights for the country’s Shiite minority. This caused a significant uproar in the human rights community, which was concerned with the use of the death penalty and unfair trials. The executions also escalated tensions with Iran, which condemned the arbitrary nature of the charges levied against al-Nimr, as well as the use of the death penalty.

Ironically, these executions come after Faisal bin Hassan Trad, Saudi Arabia’s ambassador at the U.N. in Geneva, was elected chair of a Consultative Group for the U.N. Human Rights Council at their 30th session in September 2015. Following heavy criticism of this development, the U.N. emphasized that the five members of the Consultative Group were not elected by any U.N. body, but instead appointed by five regional groups and serve in a personal capacity to objectively assess and recommend candidates for U.N. human rights experts positions, for the year in which they are elected. Despite this, Saudi Arabia’s new power to recommend experts and influence the inner-workings of the U.N. human rights framework is disturbing.

In the wake of this recent mass execution, coupled with the irony of Trad’s election to the UN human rights group, a reexamination of the dreadful human rights situation in Saudi Arabia is more necessary than ever. Moreover, more attention must be paid to how the international community treats Saudi Arabia’s continuing human rights abuses with a starting double standard.

SAUDI ARABIA’S RAMPANT HUMAN RIGHTS ABUSES      

Saudi Arabia boasts one of the most dismal human rights records in the world. From gender inequality to lack of freedom of expression and widespread issues in the criminal justice system, the country is far from upholding its international human rights obligations.

Women face systemic discrimination based on their gender and remain subordinate to men legally and in practice. They are inadequately protected against sexual and gender-based violence, and encounter legal difficulties when pursuing claims based on marital issues, divorce, child custody and inheritance. Male guardianship over women (“mehrem”), although it may not be legally prescribed, seems to be widely accepted, severely limiting women’s freedoms, including their right to access education, get married and travel. In addition, women are not allowed to legally drive in Saudi Arabia and are banned from exposing parts of the body.

In the face of this criticism, the state has reaffirmed that their application of Sharia law guarantees fair gender equality and that their legislation does not differentiate between men and women. However, in 2008 (the latest report available online), the Committee on the Elimination of Discrimination Against Women pointed to the failure of the state party to fully incorporate the principle of equality between women and men and to define discrimination on the basis of sex within their legislation, an area that has yet to be addressed.

The criminal justice system in Saudi Arabia is plagued with human rights violations. Since there is no official penal code, judges and prosecutors can criminalize many types of behavior and activities. Many human rights organizations have noted that Saudi Arabian courts fail to respect due process and carry out unfair trails. Authorities arbitrary arrest and detain people for long periods of time, often for longer than six months without trial, in direct violation of the Convention Against Torture (CAT). Children are often detained arbitrarily and placed in detention conditions that do not comply with international standards set forth by the Convention on the Rights of a Child (CRC). Torture or inhumane treatment has reportedly been used to extract the pre-trial confessions, which have been the basis of convictions. Those convicted of crimes may be subject to cruel, degrading or inhumane punishments such as flogging or stoning. Saudi Arabia has also acted in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by targeting and arresting Shiite leaders and activists, imprisoning them after unfair trials and sometimes going so far as to issue death sentences for advocating for minority rights.

Furthermore, as evidenced by recent executions, freedom of speech, expression and assembly are extremely restricted in Saudi Arabia. Human rights defenders and those who speak out against the government face arrest, imprisonment, torture and execution. Since the government refuses to recognize or register political or human rights groups, citizens have no legal way to set up independent, non-charity organizations.

THE ALI AL-NIMR CASE: A FRIGHTENING EXAMPLE

One case that highlights Saudi Arabia’s problematic record on human rights—and the world’s compliance with the country’s abuses—is that of Ali Mohammed al-Nimr, nephew of recently executed Sheikh Nimr al-Nimr. Like his uncle, the charges upon which he was brought remain unclear—he was arrested for allegedly protesting the Saudi Arabian government when he was 17 years old. Ali al-Nimr, now 20 years old, faces a beheading execution sentence handed down by the Saudi Arabian courts last August. In addition, he has been sentenced to crucifixion after death to serve as a warning to others.

This extreme sentence has become a public representation of Saudi Arabia’s failure to comply with international human rights law. Ali al-Nimr’s sentence has been criticized as a violation of the CRC, which Saudi Arabia has ratified. In addition to this, Saudi Arabia has also been criticized for its failure to investigate reports of torture against Ali al-Nimr, in direct violation of the CAT, which they have also ratified. A group of independent U.N. experts have condemned the ruling, pointing out that unfair methods of torture were used to collect a confession, and called for a fair retrial. Among charges levied against him were being part of a terrorist organization, carrying weapons, and targeting security patrol cars.

There have also been reports that Ali al-Nimr was denied regular access to a lawyer, most notably at the time he signed a confession. The legal remedies he could have pursued, even with representation, are somewhat unclear. As discussed above, there is no formal penal code in Saudi Arabia—Islamic Sharia law is the law of the land and is used by judges based on precedent and the established rules of jurisprudence. There are however, regulations and laws passed by the government to cover broad offenses. Notably, their counter-terrorism laws have criminalized behavior such as “calling for atheist thought” or “contacting any groups or individuals opposed to the Kingdom”, which can be applied retrospectively. Amnesty International notes that the lack of clarity in the laws and judicial system is a violation of the international principle of legality, which provides that criminal liability be limited to clear and precise provisions, as well as Article 11 of the Universal Declaration of Human Rights (UDHR), which protects individuals from being prosecuted for “any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.”

Despite these blatant issues with Ali al-Nimr’s case, the United States and western allies of Saudi Arabia have remained deafeningly silent about his impending execution and crucifixion.

THE NEED FOR ACCOUNTABILITY

Perhaps the most difficult aspect of holding Saudi Arabia accountable for its human rights violations is the leniency and appeasement of the international community. During their Universal Period Review, the head of the delegation of Saudi Arabia reaffirmed Saudi Arabia’s commitment to respect and promote human rights and support the international mechanisms, particularly the UPR. But mounting evidence continues to show the opposite, especially in the wake of recent executions and the Ali al-Nimr decision. Although there are numerous U.N. reports criticizing the Saudi Arabia, they do not exist in a vacuum, and often times, resolutions and solutions can cave to the political and economic alliances between state parties. Addressing human rights violations within Saudi Arabia continues to be a problem of downplaying and politicking, as was evident when a coalition of mostly Western nations recently abandoned their call for an inquiry into human rights abuses in the conflict in Yemen, when faced with a sizeable Saudi Arabian opposition.

While the Islamic State faces international condemnation for its egregious human rights abuses, including beheadings and torture, similar abuses conducted in Saudi Arabia do not receive the same level of scrutiny from the United States and other western countries, largely because of the energy and security interests involved in Saudi Arabia. Saudi Arabia receives a level of deference to its human rights abuses not afforded to many other regimes on the international stage whose geopolitical and economic situations do not provide strategic value to influential states’ parties.

The numerous human rights violations of Saudi Arabia cannot be accepted as an inevitable truth—they cannot be brushed aside as the byproduct of a religious monarchy, nor can they give way to relationships built upon geopolitical instability and energy. They must instead be vigorously analyzed and pursued, out in the open. It is the imperative that the international community continues to have an open, critical discourse about the Saudi regime, in a way that so many within its borders do not have the freedom to do.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Stephen Downes/Creative Commons


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Exxon’s poker-face: a probe into the oil giant’s deck raises questions about its climate change research, denial and actions

By Meric Sar

An ongoing investigation by the New York Attorney General into whether one of the world’s largest oil-producers misled markets about the risks posed by climate change may prove to be a groundbreaking and watershed moment. As other state and federal authorities are expected to pursue similar actions, it is becoming increasingly clear that the fossil fuel industry is facing a bolder regulatory environment, especially with regard to the integrity of the industry’s marketing and research practices. This trend is particularly meaningful when reviewed in tandem with the Obama Administration’s achievements in steering America and the world towards renewable energy, sustainability and energy independence.

THE INVESTIGATION INTO EXXON

The investigation began with a subpoena issued by Eric Schneiderman, New York Attorney General, to Exxon in early November 2015, requesting a massive discovery of Exxon’s corporate records going as far back as 1970s. The Attorney General is seeking to understand if Exxon breached New York State’s Martin Act by misleading the market and greater public about climate change.

For the prosecutor, a case could be built if enough evidence exists to prove that Exxon actually knew – or reasonably should have known – that climate change is real, but failed to properly disclose this information and its potential implications on the company’s business outlook. Since the risks associated with climate change would potentially hurt Exxon’s stock prices, Exxon may also be accused of causing market-price distortion by concealing this “inconvenient truth” and even orchestrating efforts to re-frame the public opinion, to the extent of substantially influencing “independent” scientific research on global warming.

Several investigative reports by Inside Climate News and the Los Angeles Times spurred Schneiderman’s investigation. These reports allegedly document that in 1970s, when global warming began attracting scientific attention, Exxon “assembled a brain trust [that deepened] the company’s understanding” of climate change. According to the reports, in the late 1980s, the company went into a policy change and adopted a strategy of “climate denial,” manufacturing “doubt about…global warming,” despite the potential research information available to the company that proves otherwise. For years, as a commercial company, Exxon has downplayed the possible effects of climate change-related regulations in public reports to investors by referring to the issue as “uncertain,” “difficult,” or “not possible” to reasonably predict.

FREE SPEECH AND CORPORATIONS 

According to some, lying is an ordinary American pastime, especially in politics, and this investigation represents a cynical and heavy-handed government action to curb free speech in the climate change debate. Yet, Exxon is not an ordinary citizen with a big mouth. Energy companies are savvy Washington juggernauts, and have been historically instrumental in shaping the policy debate and scientific discourse surrounding our understanding of climate change. Today, under a series of laws and court rulings, including the much-debated Citizens United case, corporations enjoy extensive free speech rights, which has been criticized by some as too broad and counter-intuitive to democracy. However, the exercise of political speech by a commercial enterprise can conflict with its other duties towards the market.

Under the U.S. Constitution, even dishonest or misleading political speech is generally accepted to be free, and punishment of people (or corporations) for expressing merely political speech is unconstitutional. However, restriction of free speech is common on various state and federal law grounds, especially in relation to securities fraud. In New York, the Martin Act gives state prosecutors broad powers to prosecute financial fraud, and sets a lower threshold to prove direct harm and causation in comparison to federal laws. The U.S. Securities and Exchange Commission (“SEC”) regulates and prohibits even truthful speech by companies in many situations. A duty of truthfulness about material business information for publicly traded companies is essential to balance the asymmetrical power of influence that the corporations are enjoying in shaping the U.S. politics, especially in the aftermath of the Citizens United.

THE MARTIN ACT OF NEW YORK

The Martin Act is an almost century-old New York state enforcement statute that predates the SEC. Originally, the law only conferred the power to pursue civil suits but was later amended to allow for criminal prosecutions. The Act gives broad powers to state prosecutors in issuing remedial measures to maintain the integrity of the markets. It has been used to stop Ponzi schemes, mortgage fraud and Wall Street abuses in the past. Hence, using it with respect to climate change may play a crucial role in bridging the shortcomings of federal authorities due to the legal constraints on their powers.

In his subpoena to Exxon, Schneiderman is seeking a myriad of documents related to Exxon’s internal research on the causes and effects of climate change, and how this information was used in business decisions, projects, analysis and communications with trade groups. Experts think the issue of what counts as a “material” information will be the decisive factor in the case. Not all undisclosed research is material information that needs to be disclosed to the public if the resulting information is obvious or otherwise generally available to the knowledge of investors. This, of course, entails another question: whether Exxon or other similarly situated energy companies are in a unique position, holding certain information that is not available to the rest of the world on the issue of climate change.

Exxon embraced the need to curb greenhouse gases in 2006, following the company’s change in its chairman and CEO. Since 2009, the Texas-based company has advocated for a revenue-neutral carbon tax as the fairest way to cap harmful emissions. According to the General Counsel of Exxon, the “[company] scientists have been involved in climate research and related policy analysis for more than 30 years, yielding more than 50 papers in peer-reviewed publications.” Its scientists have participated in the United Nations Intergovernmental Panel on Climate Change since its inception and were involved in the National Academy of Sciences review of the third U.S. National Climate Assessment Report.

Despite the rosy picture Exxon tries to paint, many environmental organization take issue with Exxon’s climate denial activities. In a 2007 report, the Union of Concerned Scientists accused the company of financing “a sophisticated disinformation campaign…to deceive the public” about global warming. The report argues that Exxon Mobil gave $16 million to 43 groups that preached climate change skepticism from 1998 to 2005. If Exxon knowingly lied or downplayed the risks of climate change to the public or investors, as the 2007 report argues, they may have broken the law.

RISE OF A GREENER REGULATORY CULTURE?

The current probe comes after the New York Attorney General Schneidermann reached a settlement with the largest U.S. coal mining company, Peabody Energy, after the company was accused of misleading investors about the financial risks of climate change. In the settlement, Peabody agreed to include more comprehensive disclosures in its disclosures to the market about the potential costs of climate-related regulations. Settlements such as this – although do not represent a binding judicial authority – reflect a growing consensus and a pattern of self-correcting behavior among the high echelons of the American economy, which is gearing up for a sustainable energy future.

A discussion on the causal link between climate change and the fossil fuel industry often slips away from having its day in the courtroom. A judicial inquiry into the truth of global climate change as a fact has been thus far too elusive for the courts to handle despite widespread consensus among the scientific community about the anthropogenic climate change. The magnitude of the phenomenon defies a conclusive study, and the divisive nature of the surrounding public debate moves the courts to defer to a regulatory culture that has been traditionally protective of the global interests of U.S. and global energy conglomerates – an industry that has been a historical stalwart of the U.S. economy. Whether this investigation ends in a trial or not, big changes may be on the horizon.

Meric Sar is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Mike Mozart/Creative Commons


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Human rights of transgender individuals and finding hope in California’s policy for inmates to receive sex reassignment surgery

By Amaury A. Reyes-Torres

The LGBT movements in the U.S. and in Europe have taken significant steps towards legal equality and political change. However, much still remains to be done to ensure transgender rights. Many still face challenges related to their gender identity and its intersection with race, employment, equal access to accommodations and health. One such population is transgender inmates whose medical needs are often disregarded.

THE PROBLEM: MEDICAL TREATMENT FOR TRANSGENDER INMATES

Trans individuals are a vulnerable population in prisons. According to the National Center for Transgender Equality, almost one of every six trans individuals have been incarcerated at some point in their lives, and this ratio tends to increase dramatically when discussing trans black inmates. These inmates face a variety of challenges, including abuse from other prisoners and lack of adequate healthcare.

In particular, trans prisoners often lack the necessary facilities and healthcare options to make the transition to their chosen gender. Many trans people are not afforded hormone treatment or surgical procedures while incarcerated, consequently leading to or aggravating gender dysphoria, a serious medical condition often affecting trans individuals.

Gender dysphoria is “[t]he distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender,” according to the American Psychiatric Association. It is “characterized by a persistent and intense distress about assigned sex, together with a desire to be, or insistence that one is, of the other sex,” according to the World Health Organization. Gender dysphoria severely affects individual well-being, and may lead to depression and even death. Appropriate treatment of this condition includes hormone treatment and sex reassignment surgery.

Many prison rules are not conducive to beginning or continuing medical treatment for gender dysphoria. Despite their medical needs, transgender inmates are often denied necessary medical services on a daily basis. Freeze frame rules, which many prisons across the country still adhere to, only allows prisoners to receive hormone therapy if they had been receiving treatment prior to incarceration. Since many trans individuals buy hormones on the black market, they are not allowed to continue their hormone therapy due to a lack of medical documentation. This leads to a physical reversal of previous therapy and exacerbation of gender dysphoria. Trans individuals are also often denied beginning hormone therapy or undergoing sex reassignment surgery while in prison.

TRANSGENDER RIGHTS AND ADEQUATE MEDICAL TREATMENT AS A RIGHT

Under international human rights law, the lack of proper medical treatment for inmates is deemed cruel, inhuman or degrading treatment. The European Court of Human Rights has held that prisoners must be detained in a condition compatible with his or her human dignity, meaning that prison conditions must ensure prisoners’ health and well-being. There must be, according to the court, compatibility between the standard of treatment and the illness faced by the prisoner. By the same token, the Inter-American Court of Human Right has held that the government is a guarantor of the health of the inmates, and must provide inmates with necessary and adequate medical treatment when it is required. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, medical services shall be provided for the sake of the physical and mental health of the inmate.

This practice clarifies the scope of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which forbids cruel, inhuman or degrading treatments. The ICCPR Human Rights Committee has held that a state party has a positive duty to maintain adequate standard of health for the inmate. A state party violates article 7 of the ICCPR when it does not afford inmates appropriate medical treatment.

These human rights laws can be applied in the context of transgender inmates in the U.S. Although the U.S. is a party to the ICCPR and other relevant international documents that obligate it to protect human rights, the U.S. does not consider itself directly bound by human rights treaties, as they are not self-executing. Nonetheless, the proliferation of references to the importance of providing healthcare to prisoners in international standards as a factor in ensuring human dignity reflects a trend in the development of international law and underscores the respect for prisoner rights and transgender rights. Furthermore, both through its obligation as a state party to the ICCPR and through the eighth amendment of the U.S. Constitution, the U.S. must prohibit cruel and unusual punishment. Therefore, a denial of adequate healthcare to prisoners may violate both the ICCPR and the U.S. Constitution.

In fact, in April 2015, a federal U.S. court ordered the State of California to provide a sex surgery reassignment to Michelle-Lael B. Norsworthy, a trans female prisoner in California. Bringing a claim under Section 1983, a civil rights remedy for constitutional rights violations, Norsworthy argued that the continuous refusal of the state to provide her with appropriate healthcare, including sex reassignment surgery, violated the eighth amendment. The court agreed, and held that the state acted with deliberate indifference to the medical needs and concerns of Norsworthy as an inmate.

Not only have the courts upheld trans rights in prison, but the Department of Justice filed a statement of interest in a similar case arguing that “[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.” The United States considers gender dysphoria to be “a serious medical need requiring appropriate treatment,” the statement said. Thus, failure to provide adequate medical services to trans prisoners, including hormone therapy and sex reassignment surgery, is a cruel and usual punishment under both the eight amendment and article 7 of the ICCPR.

TRANSGENDER RIGHTS: CALIFORNIA GUIDELINES FOR SEX REASSIGNMENT SURGERY

Despite all the barriers that trans prisoners face in attaining adequate healthcare, there has been significant progress and reason to hope for a better future. Recently, California settled a case in which the state agreed to pay for a trans inmate’s sex reassignment surgery. In the aftermath of this settlement, California Prison Officials announced guidelines under which inmates could opt for sex reassignment surgery. This is a significant breakthrough. California has become the first state to sponsor this kind of measures in favor of trans inmates. Moreover, California has one of the largest inmate populations in the United States, making this decision even more meaningful.

Under the guidelines, an inmate requesting these services will submit an application to a committee (the Headquarters Utilization Management Committee), which will then refer the inmate to a subcommittee (the Sex Reassignment Surgery Review Committee) for evaluations and findings. The subcommittee will decide whether or not there are any medical reasons that justifies withholding the surgery until they are resolved or mitigated. They will also consider whether the treatment that the inmate is currently receiving is effective. Lastly, it will decide whether or not the candidate should receive sex reassignment surgery.

This process is a significant victory for trans rights and human rights overall. Undoubtedly, there will be further questions that will need to be answered, and this system will require oversight to see if this new proceeding is effective and rights-respecting. But this practice could set an example for other U.S. states and other countries facing similar situations in which proper healthcare services are being denied to trans inmates. Most importantly, California has set an example of how it is possible to fulfill human rights obligations using domestic mechanisms.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Joseph Kranak/Creative Commons


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Inadequate justice: the case of Jennifer Laude and the call to end unequal military agreements

By Rodrigo Bacus

On Dec. 1, 2015, Joseph Scott Pemberton, a U.S. marine, was found guilty by a Philippine court of homicide in the death of Jennifer Laude, a transgender Filipino citizen. It has been over a year since the beginning of the trial of Pemberton for the murder of Laude. Since that night, her friends, family, and advocates have strongly urged the U.S. and the Philippines to uphold the rule of law and ensure justice. While the conviction was a small, yet incomplete, victory, the greater issue that looms is the uneven power relationship between a country occupied by a foreign military presence, and the unjust arrangements produced as a result. Although the trial brought the case to a close, the justice that advocates sought is still far from achieved.

A DEATH

According to reports, on Oct. 11, 2014, Laude decided to have drinks with her friend Barbie, whose full name on government documents is Mark Clarence Gelviro. While in the bar, Ambyanz Night Life, Laude and Barbie met Pemberton, who was out on leave that night. Engaged to Marc Sueselbeck at the time, Laude had previously engaged in sex work off and on for six years, but had not done so for the past six months. That night, however, she decided to take customers as a way to compete with friends and have fun. After spending some time together, Laude agreed to leave with Pemberton. Laude, Barbie and Pemberton headed together to the Celzone Lodge, a nearby hotel. Barbie left Pemberton’s room to another part of the hotel and left Laude and Pemberton in the room alone. About 30 minutes later, Pemberton left the building. When he returned to his ship, he confessed what happened that night to his roommate, Jairn Rose, who listened as Pemberton told him about the two girls he met. Pemberton said he had noticed that when Laude undressed, she had a penis. Out of rage, he said he choked her from behind and then, when her body stopped moving, dragged her to the bathroom and left. “I think I killed a he-she,” Pemberton said, assuring his friend that he was serious.

Later that night, a hotel employee found Laude naked and dead with her head submerged in the bathroom toilet. Pemberton was the last person seen with Laude that night. Local police arrived at the crime scene, as well as a team from the Naval Criminal Investigative Service, which seemed to have knowledge that the incident involved an American serviceman even before Pemberton confessed to Rose. At this time, local authorities had neither brought Pemberton in for questioning nor requested an affidavit. Soon after, the police released an official report confirming that Laude had died due to asphyxia. Laude’s mom, upon hearing about the incident, took a 24-hour bus to where Jennifer lived and was surprised that the government had not taken any action. Four days later, lacking assurance from the government that they would move forward with a case, Laude’s family filed a murder complaint against Pemberton.

A CASE

As the case began, the Philippine court subpoenaed Pemberton for the preliminary investigation, but he was aboard the USS Peleliu at the time and did not appear. In a statement, Philip Goldberg, American Ambassador to the Philippines, cited the Visiting Forces Agreement (VFA), a bilateral agreement between the Philippines and the United States, as a reason why a U.S. ship held Pemberton in custody instead of a local precinct. Under the VFA, the U.S. can request the ability to retain custody over a suspect until judicial proceedings are completed. The U.S. invoked its ability to do so without a formal request, stating that it is its right under the agreement to exercise this power. The decision sparked outrage and united many activist groups and human rights defenders, some calling the incident a “hate crime.” It took until December 2014 to issue an arrest warrant for Pemberton, though the US had moved Pemberton to a Philippine army camp while still retaining custody of him in late October 2014. Pemberton stayed in a room within the camp and was guarded by US soldiers.

About a year after the incident, Pemberton finally appeared in court for the first time to recite his testimony of events to the public. Pemberton testified that he and Laude had begun to fight once he discovered that Laude had a penis. Pemberton pushed Laude. Laude slapped him. He punched her and then put her in a chokehold until she was no longer moving. Then, he tried to revive her in the bathroom over the toilet and eventually left in a taxi. The defense attorney wrote in an email to the New York Times that Pemberton did not kill Laude and had left her alive in the bathroom. The defense included this testimony to introduce complicating circumstances, including self-defense and the controversial trans panic defense. The trans panic defense attempts to equate the shock of discovering that a person is gay or trans to traditional scenarios where a “sudden quarrel” or the “heat of passion” would make it less likely that a person actually had malicious intent to kill another. Defendants have used the argument to persuade courts and juries to base rulings on unjust and damaging stereotypes about LGBT victims. California banned the trans panic defense in 2014, referring to the discriminatory effects it had on LGBT victims. The Philippine court had the opportunity with Laude’s case to decide that the use of such a defense in the Philippines is equally unacceptable.

INADEQUATE JUSTICE

On Dec. 1st 2015, the court found Pemberton guilty of the lower charge of homicide, which has a sentence of between six to 12 years. The court found that evidence supported the fact that Pemberton had killed Laude. However, it lowered the conviction from murder to homicide. The court was convinced that Pemberton should be considered less blameworthy for Laude’s death because Laude had kept the fact that she is a trans woman from Pemberton. Activists and supporters of Laude criticized the court’s consideration of this fact to lower the charge. By its finding, the court has tacitly admitted that the trans panic defense is a valid way to get away with murder.

In addition to their criticism of the validation of the trans panic defense, supporters of Laude have also criticized the actual enforcement of justice in this case. As soon as the court rendered the guilty judgment, U.S. troops in Camp Aguinaldo, where Pemberton is held, moved to block attempts by police to take Pemberton to custody. Because of the VFA, the U.S. has power to influence the determination of where Pemberton can serve his sentence. The agreement does not give the Philippine government the same power if the roles were reversed. Activists criticized the agreement and its practical effects in this case as yet another intrusion into Philippine sovereignty and another impediment to achieving justice.

For activists, Laude’s case is yet another reminder of how unequal agreements can allow one side to commit crimes with impunity. For instance, without active intervention by supporters of Laude, Pemberton’s case may have never been filed or given any attention in the first place. Moreover, activists had to ensure that Pemberton was not removed from the country. Finally, even at the point of judgment, Pemberton was given a lesser sentence for using a highly controversial defense, and has not yet been taken into custody.

BEYOND THE CASE: UNJUST TREATIES

Beyond Laude’s case, activists see unequal and unjust defense treaties as the overarching issue. Human rights group, KARAPATAN, actively condemns bilateral defense agreements such as the VFA and supports their cancellation. In its statement, KARAPATAN underscores that the death of Laude is not just a marker of the violence that trans people face globally, but also of the impunity by which American soldiers can conduct themselves due to the unequal agreements that protect them while failing to protect the rights of certain communities in the Philippines. KARAPATAN has documented five other cases in which Filipinos died as a result of actions by or in service of U.S. military troops, without any justice or accountability for those deaths.

In regions of the Philippines where the U.S. military has a strong presence, complicated relationships between communities also arise. For example, most people in region where Laude died value the business of American soldiers, and some even blamed Laude for the recent drop in business. However, trans and LGBT people, among others, face beatings, discrimination and other abuse from American soldiers, who do not fear punishment or accountability. They are increasingly frustrated by continuing abuses and injustice.

Meanwhile, the Philippine government recently signed a tighter supplemental agreement to the VFA with the United States, the Enhanced Defense Cooperation Agreement (EDCA). With EDCA, U.S. soldiers no longer have to stay temporarily as “visitors,” and the U.S. can deploy them to any agreed upon location in the Philippines. KARAPATAN predicts a surge in human rights violations and further erosion of Philippine sovereignty, which were the very reasons U.S. naval bases in the Philippines were closed in 1991. Furthermore, increased funding from the U.S. based on EDCA has strengthened the current regime’s counterinsurgency military campaign, Oplan Bayanihan, which has spurred human rights violations in Southern Philippines where 50 percent of Philippine forces are located.

In the face of this, human rights defenders are calling for justice for Filipinos who have experienced human rights abuses at the hands of the U.S. military. They are urging the Philippine government to revoke unequal bilateral defense agreements such as the VFA and EDCA. Most importantly, they are seeking solidarity in bringing to light the violence faced by the LGBT community and in securing LGBT rights as guaranteed under international human rights law.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: U.S. Pacific Fleet/Creative Commons