Rights Wire

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


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La linea, #justiciaya and new challenges to corruption in Guatemala

By Hannah Jane Ahern

The political landscape in Guatemala, which signed internal peace accords less than two decades ago between the government and the Guatemalan National Revolutionary Unity party, an umbrella of leftist guerilla groups that is now a political party, has shifted dramatically in the past six months. Following the exposure of a major customs tax fraud scheme implicating officials at the highest levels of government, an unprecedented grassroots social movement, which grew out of social media activism, has taken shape to demand justice and end corruption in Guatemala.

BACKGROUND

The past 500 years in Guatemala, a country of roughly 15 million people, have been marked by colonial rule, military dictatorships, and a 36-year long bloody internal conflict between the Guatemalan government and leftist guerrilla groups. That conflict lasted from 1960 to 1996, and it resulted in the genocide of indigenous Mayan people who the government claimed were guerrilla sympathizers. Roughly 200,000 Guatemalans, the vast majority of whom were indigenous Mayans, were murdered or disappeared at the hands of the military, police, paramilitary and intelligence forces, according to the Commission for Historical Clarification, the United Nations-supported truth commission established after the conflict.

The Commission determined that 93 percent of the human rights abuses that took place during the conflict were perpetrated by the government. These abuses included rape, torture, forced disappearances, and arbitrary executions. Stunningly, not a single government official or member of Guatemalan security forces was brought to justice in Guatemala until 2009, when an ex-military commissioner was convicted of forcibly disappearing Guatemalan citizens during the genocide. Guatemala has been found responsible in human rights violations in numerous cases by both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, but they have yet to comply with all of the measures ordered by the Court in 19 of those cases.

In 2013, Efraín Ríos Montt, the de facto dictator of Guatemala from 1982-1983 who was directly responsible for at least one massacre of over a thousand indigenous Ixel people, was found guilty of genocide and crimes against humanity and sentenced to 80 years in prison. Former President Otto Pérez Molina has also been accused of involvement in the Ixel massacre, and possible other acts related to the genocide, while he was in the army and stationed in that region. Ríos Montt’s sentence was annulled on a legal technicality shortly after it was issued; since then he has tried to avoid retrial by claiming that he suffers from dementia. Although the judgment was overturned, his conviction reopened public debate around the need for justice in a country where impunity has long been the norm. The hashtag #SiHuboGenocidio (“Yes there was genocide”) has remained constant on social media since 2013, and the case continues to be in the news.

LA LINEA: THE SCANDAL THAT SPARKED A MOVEMENT

La Comisión Internacional Contra La Impunidad en Guatemala (“The International Commission Against Impunity in Guatemala”), known as CICIG, began investigating corruption in Guatemala in 2007. Last year CICIG and the Guatemalan prosecutor’s office discovered an extensive customs fraud scheme, now known as La Linea. Government officials were accepting bribes in exchange for non-payment of import taxes by certain companies, so that money designated for schools and hospitals ended up lining their pockets instead. In April of this year investigations revealed that then-Vice President Roxana Baldetti’s personal secretary was the ringleader of La Linea; soon after, evidence against Baldetti herself began to mount. No one knew it at the time, but La Linea and the social movement it catalyzed would lead to the unraveling of Pérez Molina’s presidency.

Having traveled and lived in Guatemala for a number of years, I have many personal ties to this small Central American country and consider it my second home. Historically, corruption has been so deeply entrenched in government that everyone I know has always taken it for granted. However, after Baldetti’s connection to La Linea was publicized last spring, something changed. I noticed a new slogan on social media: #JusticiaYa. (Justice Now.) That slogan was followed by a more specific demand, leveled at Baldetti but with a clear message for all corrupt officials: #RenunciaYa. (Resign Now.)

The first protest, organized over social media, took place on April 25. It caught everyone off guard when over 10,000 people mobilized to demand Baldetti’s resignation. Since April, there have been peaceful demonstrations nearly every week to demand that corrupt officials be brought to justice, and following the first wave of protests Baldetti was forced to resign in May. In August, she was arrested for her role in La Linea, and on Aug. 25 a judge ordered her to stand trial on charges of bribery, conspiracy and customs fraud. That same day, a court ruled that Ríos Montt would have to stand trial again, for genocide, although he will not be sentenced to prison because of his health. The #JusticiaYa movement began because of public outrage against La Linea, but its impact has gone far beyond the customs fraud scandal. The movement has sent a clear message that the Guatemalan people will no longer tolerate the impunity of the ruling class.

#27A: PARTICIPATING IN HISTORY

On August 27th my boyfriend, who is from Guatemala, and I participated in the demonstrations in Parque Central in Quetzaltenango, Guatemala’s second-largest city. Six days earlier, the prosecutor’s office announced that they had evidence implicating Pérez Molina as a leader of La Linea; in the wake of this news Guatemalans began repudiating his authority. In the days leading up to the protest, there was a new hashtag painted on signs and cars and posted on social media: #YoNoTengoPresidente. (I have no President.) We didn’t know it then, but the protest occurring simultaneously in Guatemala City that day would turn out to be the largest in Guatemalan history. It would become known simply as “#27A.”

When we arrived at the protest we wound our way through the sea of blue and white Guatemalan flags and found a cluster of family and friends standing together under the trees. We listened as student leaders enumerated the complaints and hopes of people across Guatemala. Local artists shared songs, raps and poems indicting Pérez Molina and the government for failing the Guatemalan people. We echoed chants demanding the President’s immediate resignation, even with the next presidential election only ten days away.

When I first heard about the protests last Spring, I (and many of my friends) remained skeptical about the potential to affect real change in a country that has historically been so divided and corrupt. I couldn’t comprehend the transformation that had occurred and the impact the #JusticiaYa movement had had in such a short time until I was standing there with the other protesters. What I found most inspiring was how the protests united Guatemalans from all regions, ages, backgrounds, and socioeconomic classes. As we stood in Parque Central that day among university students, local leaders, rural farmers, members of the urban middle class, Mayans, ladinos, young people, old people, and everyone in between, laughing, shouting, and singing, united peacefully in pursuit of a common goal, there was a feeling that the voice of the people was finally being heard.

A CHANGE IN POWER

In the days prior to and immediately following #27A, Pérez Molina did his best to cling to power. His public statements rejected calls for his resignation, denied involvement with La Linea, and attempted to minimize the magnitude of the movement taking place against him. In a way, though, it didn’t really matter what he said at that point: in most people’s minds he was already gone.

I left Guatemala the day after #27A feeling electrified, inspired and hopeful. On Sept. 1, Guatemalan Congress voted unanimously to strip Pérez Molina of his Presidential immunity, opening him up to prosecution. The next day—just four days before the first round of elections—a judge issued a detention order for him, and just before midnight, Pérez Molina tendered his resignation. Baldetti and Pérez Molina, once untouchable, were now both in jail, where they remain today awaiting trial.

On Sept. 6 Guatemalans went to the polls. In a surprising upset, the wealthy businessman considered to be the front-runner, Manuel Baldizon of the Lider Party, came in third place. Baldizon, the runner up in the 2011 elections, is known for his connections to narco-traffickers and for his illegal and corrupt campaign tactics. Among my friends in Guatemala, he is a symbol of everything that is wrong with Guatemala: how the ruling class profits off the desperation of the poor, and of how you can get away with anything, no matter how corrupt or illegal, if you have enough money. The message in the fact that Baldizon didn’t win (and that Jimmy Morales, a comedian with no prior government experience, came in first place) was clear. Jimmy Morales, who promised to tackle corruption in politics, went on to win the Presidential election by a landslide over the former first lady, Sandra Torres, on Oct. 25. This further echoes the message Guatemalans have been sending since the first protest in April: We will no longer tolerate corruption and impunity. We won’t be taken advantage of. And we will no longer be silent.

LOOKING FORWARD

So many questions remain for Guatemalans about the future of Guatemala. Will Pérez Molina be found guilty, or will he escape justice on a technicality? Will the new president of Guatemala actually crack down on corruption? What effect will the new government’s policies have for the Guatemalan people? Will the vast majority of Guatemalans who live in poverty—75 percent of the population according to the World Bank—and without steady access to education, food, medical care or social services, see any real change in their quality of life any time soon?

In the realm of justice for rights abuses, even if he is found guilty again of genocide and crimes against humanity, Efraín Ríos Montt will never serve a day in prison in his lifetime. It is unclear who else will be brought to justice for acts of genocide committed by the government against its own people. Even if Pérez Molina goes to prison for his role in La Linea, will we ever know the full story of his connection to the massacres in the Ixil region while he was an officer in the army, and will he ever be held to account? Will the new government comply with the orders of the Inter-American Court of Human Rights, to give some small amount of justice to victims of rights violations and ensure that those violations aren’t repeated? Moreover, will the international community continue to stand with Guatemalans as they demand justice and accountability, or will we go back to business as usual, and only put Guatemala on the map when there is gang violence or a natural disaster?

There is no question that Guatemala will face enormous challenges as it continues to grapple with the consequences of genocide, human rights abuses, political corruption, racism, poverty, weak infrastructure, structural inequalities and decades of devastating U.S. policies in the region. No one, least of all the Guatemalan people, has any illusion that inequities going back 500 years will somehow disappear, or that anything can remedy decades of violence, genocide and impunity. But one thing is certain: a momentous shift has taken place. Peoples’ fears of speaking out against their government, of standing up against injustice, and of joining forces with those who are different from them are gone.

When I returned to New York at the end of August, there were two new slogans on everyone’s lips. They continue to circulate everywhere on social media, and are forever etched in the digital history books in hashtag form: #GuatemalaDespertó. (Guatemala Awoke.) And: #EstoApenasEmpieza. (This is just beginning.)

Hannah Jane Ahern was a 2015 Leitner Center Summer Fellow. She interned at the Inter-American Court of Human Rights, and spent part of her summer in Guatemala during the protests and change in government.

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 courtesy of Hannah Jane Ahern.


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Russia’s undesirable organizations law: the next step in the assault on foreign aid and influence

By Thomas M. Callahan

Earlier this year, as the Russian parliament was discussing a draft law restricting the operations on Russian territory of so-called “undesirable organizations,” I speculated that the bill would probably not pass the legislature in my Note for the Fordham International Law Journal, which focused on legislative restraints to foreign influence in Russia. In a section on provisions under review in Parliament, I included a brief discussion of the bill to illustrate some of the kookier ideas being debated in the Russian legislature.

It passed, though, and was signed into law by Russian President Vladimir V. Putin just as my Note went to publication at the end of May. By the end of this summer, I had met and spoken with enough lawyers and other human rights workers in Moscow and across Russia to know that the law is having serious consequences: many reputable Russian human rights attorneys at a range of organizations, both international and domestic, told me that, essentially, the jig is up, and they’re on the market for private sector work. In recent weeks, I’ve started seeing more posts on Facebook than usual about fleeing the country.

SETTING THE GROUDWORK

Technically, the Law on Undesirable Organizations is doing exactly what it’s supposed to. But it didn’t come out of nowhere: in summer 2012, Russia had adopted the Law on Foreign Agents, a similar set of provisions dealing exclusively with domestic organizations. The Law on Foreign Agents, among other things, required some non-profits receiving operational funding from outside Russia – as human rights organizations there nearly universally do – to register with the federal government and advertise their status as “foreign agents.” In colloquial Russian, the term “foreign agent” is equivalent with “spy.” These groups are also subject to random audits that often function as raids on records and also equipment like computers.

The organizations that are required to register are those engaged in “political activity,” a term whose definition Russian courts have yet to categorically decide. But, generally, any project with an element of advocacy for policy change can constitute “political activity.” And if the advocacy is for a change to Russia’s policy on Crimea, it could constitute a “threat to the territorial integrity of the Russian Federation,” an extremist crime. Many small, politically inconsequential human rights groups, who are doing extremely brave and crucial work, are now listed as “foreign agents.” These groups must now disclose that they are a “foreign agent” on the front page of their website and any of their publications. The Law on Foreign Agents is a great facilitator of self censorship: the heads of multiple Russian human rights organizations have told me that they would prefer to fold their organization instead of paying the massive fines that come with continued operation of an unregistered “foreign agent” group, or the legal fees of appealing the determination. By February of 2015, numerous groups had chosen to shut down instead of continuing to operate with a “foreign agent” status. Furthermore, there is no due process in how organizations are identified or registered as “foreign agents.” The Ministry of Justice can add an organization to the register of “foreign agent” groups, technically, without having to actually notify the organization.

While the Law on Foreign Agents creates a more hostile environment for Russian human rights workers, it has very little practical impact, other than making Russian human rights workers a little more uncomfortable in an already inhospitable environment. More importantly, it does not cut off funding. This is where the Law on Undesirable Organizations comes in.

A STRANGLEHOLD ON CIVIL SOCIETY

The Law on Undesirable Organizations is actually a set of amendments to various Russian laws, including Russia’s Criminal, Criminal Procedural, and Administrative Codes; the Law on Procedure for Exit from and Entry to the Russian Federation; and the Law on Measures Against Persons Involved in Violations of the Fundamental Human Rights and Freedoms of Citizens of the Russian Federation (usually called the Rights and Freedoms Law). .

The main feature of the Law is that it gives officials the power to deem certain non-Russian and international organizations “undesirable.” These organizations will then have their activities limited or banned in Russia, and their assets can be frozen. It was hotly discussed in the months leading up to its passage, primarily in Russia’s community of human rights workers, which I joined in 2010. The law establishes that the activities of non-Russian or international non-governmental organization that represent a “threat to the foundations of the constitutional order of the Russian Federation, the country’s defense, or the security of the State,” may be kicked out of the country.

Thus far, only the National Endowment for Democracy (NED), an American grant making organization working for “democracy promotion,” has been labeled as an undesirable organization. Since NED’s funding supported a variety of Russian civil society and human rights groups, this ban from operating in Russia could have serious consequences.

Under the new law, “undesirable” organizations in Russia are subjected to the following:

  • A ban on opening new offices in Russia
  • A ban on the dissemination of information by publication, including through the media, or Internet, and on the production or storage of such publications with the intent to disseminate.
  • Placement on a financial blacklist, after which Russian financial and credit institutions are barred from transacting with the organization
  • A bar on entry to the Russian Federation for non-nationals who “participate” in the activities of “undesirable” organizations

LEGAL IMPLICATIONS

Unfortunately, from an international legal perspective, the Law on Undesirable Organizations is probably perfectly legal on its face. What government should be barred from restricting the operations of foreign groups working to change the political and social contours of its society? The law itself invokes state security and threats to social order and public health as impetuses for its creation. But in practice, the law is just another blunt weapon for use in the Russian government’s assault on civil society in general and human rights in particular.

In its March 2015 review of Russia’s compliance with the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee was clear about the potential for misuse and abuse in the Law on Foreign Agents. It called on Russia to amend the law to clarify its language, and recommended removal of the term “foreign agent” entirely. The Committee and other international organizations and advocates must similarly criticize the Law on Undesirable Organizations, which invokes a cynical and twisted version of sovereignty in a bid to intimidate, starve, and ultimately banish the groups that bravely report on the various human rights violations that have become a standard feature of life in Russia today.

Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.

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: jaime.silva/Creative Commons


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Taking human rights back to the streets: Bell v. City of Boise and homelessness

By Amaury A. Reyes-Torres

According to the National Alliance to End Homelessness, around 578,400 people in the United States experienced homelessness in a single night in January 2014. Over the past year and a half, this number may have increased due to job insecurity, extreme poverty and inadequate access to mental health services, among other reasons.

Many states are currently experiencing a real deficit of available space to house homeless individuals, resulting in numerous people not being able to stay at shelters. These individuals have no other choice but to sleep on sidewalks, in parks or under highways. Laws passed to criminalize this conduct and homelessness itself has serious human rights implications and raises inequality concerns.

HOMELESSNESS AND CITY ORDINANCES: CRIMINALIZED WITHOUT A CHOICE

According to the National Law Center on Homelessness and Poverty, a growing number of local governments across the country have passed ordinances that criminalize sleeping on the streets, camping, panhandling and other public conduct that many homeless individuals engage in to survive. There are two fundamental problems with these types of ordinances. First, many cities lack sufficient space to otherwise provide adequate accommodations for the homeless. Second, cities that pass ordinances like these fail to consider that the presence of the homeless in public places is not a matter of choice. Many homeless individuals are forced to live on the streets due to circumstances beyond their control, such as a lack of shelter space. They have no place to go, and because of this, they are punished.

A recent case in Idaho is challenging these types of ordinances, with vast implications for ensuring human rights protections under domestic U.S. law. The case, Bell v. City of Boise, was brought by homeless individuals convicted for camping and sleeping in public places. They claim the ordinances passed by the city of Boise that criminalize certain public activities violate their constitutional rights because these laws impose a punishment when there is not adequate and available space to shelter.

In a recent statement of interest for the case, the Obama Administration argued that the court should consider the enforcement of these ordinances as Eighth Amendment violations when there is no available shelter space. According the administration, these ordinances are doing nothing but criminalizing the homeless who have no other choice but to sleep in the streets. Under these circumstances, the mere fact of being homeless, rather than any conduct, is being punished.

The Supreme Court has ruled that laws that punish status instead of conduct are unconstitutional. In the view of the Obama Administration, this is exactly what is happening with the homeless because “…the conduct of sleeping in a public place is indistinguishable from the status of homelessness” when there is no space available to perform a fundamental human activity like sleeping. When there are shelters available to accommodate the homeless, sleep is possible. But when no accommodation is possible due to the lack of shelter space, the homeless resort to public places to secure a place where an unavoidable need can be satisfied. Criminalizing this action is a punishment not for the conduct of sleeping in public places, but for homelessness itself. Therefore, such ordinances violate the Eighth Amendment right to be free from cruel and unusual punishment .

There is nothing new about this proposition. In Jones v. City of Los Angeles, the Ninth Circuit Court of Appeals ruled that the enforcement of ordinances prohibiting sleeping, sitting or sleeping in public as unconstitutional under the Eighth Amendment. Following this persuasive precedent, the current administration is asking the court to hold that punishing homeless people for sleeping in the streets when they have no other place to go is a cruel and usual punishment. Although Jones was vacated as result of a settlement, its reasoning is still important, and the court should use this legal framework when considering the constitutionality of the law in question.

The Obama Administration is also concerned with the consequences of these measures. It can be reasonably inferred from the submitted brief that there is a relationship between the cycle of poverty and criminalization. In fact, criminalization of homelessness neither increases society’s well-being nor attacks the causes of homelessness. As a result of this bad policy, the government fails to both reduce homelessness and to meaningfully include the homeless in civil and political life due to the stigma created by a criminal record for sleeping in the streets.

HOMELESSNES AND HUMAN RIGHTS

The criminalization of homeless is not just illegal under the Eighth Amendment, but also under Article 7 of the International Convent of Civil and Political Rights (ICCPR), to which the United States is a party. The United States understands Article 7’s prohibition of cruel and degrading punishment as cruel and unusual punishment under the Eighth Amendment. And if by criminalizing the homeless for not having a place to go to sleep violates the Eighth Amendment, then it also violates Article 7 of the ICCPR.

In 2014, the U.N. Human Rights Committee expressed its concerns regarding the criminalization of the homelessness in certain areas, despite efforts made by the U.S. Moreover, the committee not only said this situation raises concerns about cruel, inhuman or degrading treatment, but also of discrimination. Raquel Rolnik, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context, also noted in his 2010 country visit report that the rise of local ordinances in the U.S. prohibiting various activities in public simply serve to punish homeless individuals, rather than addressing the lack of affordable housing, a root cause of homelessness. When adequate shelter space is unavailable, “homeless persons should be allowed to shelter themselves in public areas,” the Special Rapporteur said. After his visit, the U.S. Interagency Council on Homelessness and Department of Justice released a report in 2012 stating that these criminalization policies are not only illegal under domestic U.S. law, but may also violate the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), of which the U.S. is a state party.

The criminalization of homelessness also raises important economic, social and cultural rights concerns. The United States Constitution does not protect economic, social and cultural rights explicitly, nor is it a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The U.S. is a signatory to the ICESCR, and as such it has the obligation not to violate the object and purpose of that treaty. It is also important to remember that all rights are interconnected and each right has economic, social, cultural, civil or political rights implications. A violation of a civil right like that protected under the Eighth Amendment may have social and economic consequences. In fact, the principle of interdependence is one of the core principles of human rights, meaning that civil and political rights are inextricably tied to social, economic, cultural rights. According to the 1993 Vienna Declaration and Programme of Action, “[a]ll human rights are universal, indivisible and interdependent and interrelated,” and states must work to ensure all fundamental freedoms. The Inter-American Human Rights Court has further interpreted this concept to mean that there is an “…interdependence that exists between civil and political rights and economic, social and cultural rights, since they should be fully understood as human rights, without any rank and enforceable in all the cases before competent authorities.” The European Court of Human Rights reached a similar conclusion in its landmark judgment in Airy v. Ireland.

Under the U.S. Bill of Rights, the state does not have legal duty to provide shelter. However, the New York Constitution protects the “right to shelter” in article XVII. Moreover, cities, states and the federal government have a duty to refrain from violating federal constitutional rights, which mirror basic human rights. Fulfilling this obligation may even lead to the protection of social and economic rights through the provision of adequate shelters or other social welfare measures. As the Special Rapporteur on the Right to Adequate Housing noted in his 2010 report, the government should create constructive alternatives to the criminalization of homelessness, and may even need to increase housing stocks or assistance to ensure that rights are not violated.

INTERSECTIONALITY AND EQUAL PROTECTION

Not only do these ordinances violate the Eighth Amendment and the ICCPR, but they are also discriminatory in nature. According to the Substance Abuse and Mental Health Services Administration, a large number of the homeless population is composed of ethnic, sexual and other minorities. A report by the Office of Community Planning and Development reveals that almost 60 percent of the people who are currently homeless are non-white. And, a study led by researchers at Seattle University School of Law, found that of the homeless population, almost 42 percent are African Americans; 20 percent are Hispanics, 4 percent are Native American; and 2 percent are Asian. Also, 20 to 40 percent of homeless youth identify themselves as LGBTQ. This alarming data shows that certain groups are disproportionately affected by laws that criminalize homelessness, potentially in violation of protections under the ICCPR and the International Convention on the Elimination of All Forms of Discrimination (ICERD).

Indeed, a report by the U.N. Committee on the Elimination of All Forms of Racial Discrimination against Racial Discrimination on the U.S. said the Committee was “concerned at the high number of homeless persons, who are disproportionately from racial and ethnic minorities, Particularly African Americans, Hispanic/Latino Americans and Native Americans, and at the criminalization of homelessness through laws that prohibit activities such as loitering, camping, begging and lying down in public spaces (arts. 2 and 5 (e) [of ICERD])”.

The problem is not only how homelessness affects these minority groups, but also how historically marginalized and vulnerable groups are far from being equal under the law. The social discrimination suffered by homeless individuals is the product of multiple, intersecting factors, such as race, gender, sexual orientation and socioeconomic class. The homeless thus not only have to put up with the burden of living in the streets and having no place to go, but also face a particular form of intersectional discrimination. The aggregated effect of this discrimination does nothing more than perpetuate the exclusion of the homeless from civil, social and political life.

CONCLUSION

As cities across the nation are enforcing ordinances that punish camping or sleeping in public places, it is important to remember that criminalization is a last resort in democratic societies. When laws begin to punish victims instead of fighting the causes of homelessness, they perpetuate the cycle of poverty, injustice and inequality. It is never too late for the United States to live up to its human rights obligations under the ICCPR and the ICERD, as it works to fulfill its domestic constitutional rights and guarantees.

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: Tomas Castelazo/Creative Commons


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Standing in solidarity with indigenous people impacted by human rights violations in Mindanao

By Rodrigo Bacus

Recent killings of indigenous people in the region of Mindanao in the Philippines have shed light on the ongoing human rights violations in the region, leading to international calls for solidarity and demands for justice. In the early morning of Sept. 1, a paramilitary group of the Armed Forces of the Philippines (AFP), the Magahat Bagani Force, also known as the Marcos Bocales Group, shot and killed cousins Dionel Campos and Juvello Sinzo in Mindanao. Both of these men were members of an indigenous people’s rights organization, the Mahalutayong Pakigbisog Alang sa Sumusunod (MAPASU). On the same day, witnesses found the body of Emerito Samarca, Executive Director of Alternative Learning Center for Agricultural and Livelihood Development (ALCADEV), in one of the center’s classrooms. Samarca’s body showed signs of torture before the paramilitary group either shot him to death or left him for dead. The same paramilitary group also set fire to a community cooperative store and part of another indigenous people school, the Tribal Filipino Program of Surigao del Sur (TRIFPSS). These murders and abuses are part of a larger pattern of human rights violations by the AFP and its paramilitaries against indigenous people in Mindanao, who are called the “Lumad,” meaning “people of the earth.”

INCREASING MILITARIZATION, INCREASING VIOLENCE

Human rights activists link the Magahat Bagani Force paramilitary group with the Eastern Mindanao Command of the AFP, and see increased militarization in Mindanao as part of what is spurring the violence. Paramilitary groups in Mindanao are private armies of people recruited from the local community, including “datus,” the honorific title referring to tribal leaders. The AFP and the Philippine government deny direct or indirect involvement with paramilitary groups. However, the AFP’s and the paramilitaries’ harassment, displacement, and extrajudicial killings of the Lumad and human rights defenders in the area is undeniable and was recently highlighted by the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons. The pattern of human rights violations, according to the special rapporteur, is directly linked to either the militarization of the area or the increasing presence of industrial mining companies, which have been criticized for displacing indigenous people from their land. Moreover, the special rapporteur added that Lumads and their datus have been killed specifically for their activities in protest of mining companies.

For human rights activists and people directly impacted by the Philippine government’s counterinsurgency tactics, officially known as Oplan Bayanihan, the increased militarization to protect the interests of mining companies is very real, and has placed many of them at serious risk of physical harm and other human rights violations. For example, Samarca ran a human rights-based alternative learning center, and was actively involved in activist farmer organizations. Similarly, Sinzo and Campos were members of Lumad rights organizations. The paramilitary groups specifically targeted these three victims because of their association with Lumad organizations and alternative schools. In a process known as “red tagging,” the AFP and its paramilitary groups have historically targeted innocent human rights defenders with threats of death and accusations that they are members of the New People’s Army, a military group in the Philippines waging a protracted people’s war against the government. These red tagging incidents can result in the death or injury of the targeted person. Witnesses have testified that the same red tagging occurred with Samarca, Sinzo and Campos before they were killed by paramilitary group.

SEEKING ACCOUNTABILITY UNDER THE LAW

The three deaths represent deplorable extrajudicial killings that must be condemned. The Human Rights Committee has explicitly identified “arbitrary killings” in the hands of government security forces as a violation of the right to life under Article 6 of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is a party. Since red tagging identifies someone as a criminal and often results in the death of that person without a proper trial or sentencing by a competent court, these red tagging killings are a violation of Article 9 of the ICCPR, which protects the liberty and security of persons. Moreover, the deaths of Samarca, Sinzo and Campos are only the tip of the iceberg. Human rights violations committed by the Philippine government are rampant in Mindanao, and there must be accountability.

The targeting of Lumad school leaders and activists coupled with the burning of the schools themselves deny the Lumad their right to education and right to cultural life under the International Covenant on Economic, Social, and Cultural Rights (ICESCR), to which the Philippines is a party. ALCADEV, the alternative learning center that Samarca headed, was created to fill a void in educational access for the Lumad who live in rural areas of Mindanao. ALCADEV provides secondary education to Lumad children, and teaches classes on sustainable agriculture, Lumad culture and human rights. ALCADEV was so successful in its curriculum and in reaching students from remote areas that it received an award for its efforts from the Philippine Department of Education. However, the mission of ALCADEV to promote self-determined and sustainable growth and to oppose industrial mining companies is at odds with the Philippine government’s interests in opening up the Philippines to industrial agriculture, logging and mining companies. The targeting of community leaders, human rights activists and schools—including through arson—represents a deliberate act by the Philippine government to retrogress the educational rights of Lumad children. The government is seeking to cut off their ability to learn and to deny their rights to cultural life and to self-determination over development. The Philippines, which is a state party to the ICCPR, the ICESCR and many other human rights treaties, must meet their legal obligations immediately. The Philippine government must ensure that these human rights abuses stop and that the AFP and its associated paramilitary groups are held accountable.

ROLE OF ECONOMIC INCENTIVES

The interests in acquiring the land of the Lumad to monetize its wealth are very strong. The Philippines is one of the largest depositories of gold and has similarly large deposits of nickel and copper. These deposits lie within regions that are home to the Lumad, who regard the flora, fauna and land as part of their heritage and cultural life. The terror spread by the AFP and paramilitary groups have displaced the Lumad from their home, paving the way for industrial mining companies to establish their foothold in these lands, and to disregard the principle of free, prior and informed consent. The deaths of Samarca, Sinzo and Campos as well as the targeting of the schools have resulted in the displacement of 2,000 Lumad who have evacuated the area for fear of their safety. In addition, the attacks on schools in general have kept almost 3,000 children from enjoying their right to education.

All of this highlights the horrifying reality of what some have described as the “ugly face of our current rapacious global material and energy consumption.” As the international community stands with the Lumad and these three recent victims of paramilitary attacks, it must also strive to recognize a broader system of development that promotes participation, and respects and centralizes the fundamental human rights of all, particularly those who are directly impacted.

SHOWING SOLIDARITY

Local people demonstrated their overwhelming support of the Lumad school leaders by arriving in the tens of thousands for Samarca’s funeral. I regret being unable to personally pay respects to this dedicated and friendly man, who I had seen co-participating in the International People’s Conference on Mining. Furthermore, under the hashtag #StopLumadKillings, directly impacted people, activists and their solidarity networks have continued to send updates about human rights violations in Mindanao and highlight the abuses of the Armed Forces of the Philippines (AFP) and its paramilitary groups. The international community must continue to call for justice and accountability: the Philippine government must abide by its international human rights obligations and address the killings and abuses perpetrated by the AFP and its paramilitary groups.

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: Keith Bacongco/Creative Commons


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Recent wave of mob attacks in Turkey and the State’s “duty to protect” under the European Convention on Human Rights

By Meric Sar

Since Sept. 8, Turkey has been the scene of an unprecedented wave of mob attacks primarily targeting its citizens of Kurdish origin and their property as well as numerous newspapers and political party offices. According to officials with the People’s Democratic Party (HDP), a left-wing political party in Turkey, their party members and offices were the sole target of more than 400 attacks in the span of just one week. Outraged by attacks by the Kurdistan Workers’ Party (PKK), a militant Kurdish nationalist group, targeting Turkish military and police officers in Turkey’s southeast, the overarching motive of the attacks appears to be to retaliate indiscriminately against those perceived to be representing the “Kurdish” identity in the public. The widespread attacks had varying forms: burning and destruction of property, beatings, public humiliation of individuals and machete attacks. Although most of the assaults did not result in loss of life, there have been also reports of several killings, whose true motives have yet to be confirmed.

It is disturbing that many of the attacks occurred in the presence or immediate proximity of the state police, and on numerous occasions, the size of the angry crowds exceeded hundreds. Yet, Turkish police – who have been known to quickly resort to excessive use of force against peaceful street protests – often abstained from taking appropriate action.

A PREDICTABLE PATTERN

In the face of a severe threat of large-scale violence, government officials did not condemn the events but only asked the crowds to stop their aggression. Meanwhile a week-long curfew was effective in the town of Cizre where the military had an intense confrontation with PKK guerillas. According to some reports, 21 civilians died during the conflict where the army used heavy weapons to indiscriminately bombard civilian districts, which potentially aggravated the unintended casualties.

Most of the mob attacks followed a predictable pattern, and the police had the means to at least minimize the resulting damage, if not wholly prevent it in many instances. Many of these angry groups use social media for coordination and make public calls online for others to join. These communications – which often give away the prospective targets – are open to the view of the public and the security forces.

The hesitation of the security forces and the administration, coupled with President Recep Tayyip Erdogan’s efforts at politically capitalizing from the polarization of the society before the November elections paints a disturbing picture. When such alarming conditions indicate an absolute disregard by a state towards the lives of its own citizens, the state’s potential culpability in the unfolding events, from incompetence to one of simple recklessness or outright complicity in crime, must be investigated.

TURKEY’S DUTY TO PROTECT ITS CITIZENS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS 

Turkey is familiar with this type of situation. During the 1990s, when the conflict between the Turkish state and the PKK was particularly intense, the European Court of Human Rights found on many occasions that Turkey had violated the European Convention on Human Rights (ECHR) in a series of cases concerning the susceptible killings of Turkish citizens of Kurdish origin. Most of these cases related to situations where Turkey had failed to exercise the proper functions of a state in preventing and investigating the relevant killings.

Article 2 of the ECHR defines the “right to life,” one of the most fundamental principles set forth in the Convention, and it requires member states not only to refrain from the unlawful taking of life, but also to protect the lives of its citizens. Thus, a government can be held liable under the ECHR for acts perpetrated by private individuals if the government is found to have neglected its positive obligations to protect the right to life.

In the landmark case of Osman v. U.K., the court ruled for the first time that states have a positive obligation to protect the right to life. This involves both prevention and investigation of the crimes targeting the lives of citizens. Although most of the past cases where Turkey was found to violate the ECHR concerned the state’s failure to investigate the committed crimes, a duty to prevent continues to be equally important for a criminal justice system to serve its function of deterrence.

According to the standard set forth by the court in Osman v. U.K., once it is established that the authorities knew or should have known about the existence of a “real and immediate risk to the life of an identified individual” caused by the potentially criminal acts of private individuals, and failed to take reasonable actions to stop that risk, a state will be deemed in violation of its obligations under the ECHR.

A killing is not necessary to trigger an obligation under the ECHR. States’ positive obligations under ECHR are interpreted in an expansive fashion, and they must work to preserve human dignity in general. A failure to protect citizens against inhuman and degrading treatment by private parties may as well constitute a breach of Article 3, which prohibits “torture or . . . inhuman or degrading treatment or punishment”. For example, in Moldovan and others v. Romania, individuals of Roma origin were lynched by an angry mob following a bar fight, and their houses and property were burned. In this case, the court found that the ECHR required “States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals.”

AVENUES FOR JUSTICE

For a claim to be admissible before the European Court of Human Rights, the applicant must first exhaust all local remedies available under the domestic law. Indeed, Turkey’s domestic law provides numerous remedies to those who have suffered from these abuses in the form of civil and criminal actions. However, the court may still find an application admissible if it deems the local remedies as ineffective in providing just reparation. The consistent deterioration of the rule of law in Turkey, resulting from the political pressure on the judiciary as reflected in numerous politically motivated prosecutions, is well-documented. Furthermore, the widespread and systemic nature of the government misconduct makes fair and just prosecution of each and every individual involved in these crimes a very distant, if not impossible, prospect. Hence, under well-established jurisprudence, if a case reaches the court, Turkey may very likely to be found to have violated the ECHR for failing to meet its obligations in protecting its citizens during the September 2015 attacks.

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: Andrea Giudiceandrea/Creative Commons

Photo credit: Baron Reznik/Creative Commons


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The role of oil in the Syrian refugee crisis

By Sarah Ben-Moussa

The recent influx of refugees into Europe and neighboring states can be traced back to a number of causes—civil unrest, ethnic power dynamics, and the rise of radical Islam in the Middle East to name a few. While the Syrian conflict is both nuanced and complex, a significant aspect of the most recent increase of refugees can be traced to the growth of the Islamic State (IS) in the area.

The IS in Syria is unlike any large-scale terror operation that has come before it. Part of what distinguishes this group from its predecessors is the organizational and financial success the group has achieved. In assessing the factors surrounding the financial foundation of the IS, it is imperative to first look at the role of oil, both in sustaining and advancing the success of the IS.

STATE RESPONSIBILITY IN CURBING TERRORIST FINANCING

In a presidential statement in July 2014, the United Nations Security Council condemned any form of trade with the IS, either directly or indirectly, by member states. Most notably, they reminded states of their obligation to ensure that nationals and those within their territory do not commercially engage with the IS.

The significance of this language by the Council stresses the importance of individual state responsibility in going beyond traditional inter-governmental economic responses, and taking actions against private companies and individuals whose actions directly or indirectly, as the case may be for many private financial institutions, support the IS.

The Council also stressed the importance of member states preventing private donations by nationals and members within their territory to the IS. U.S. officials have criticized Gulf States, such as Saudi Arabia and Kuwait, for their failure to curb private donations to the IS.

TRADE SANCTIONS AND THE RISE OF BLACK MARKET OIL

While the international community has condemned any financial engagement or transaction with the IS, they have not addressed the more nuanced issue of trade sanctions on Syria and how the sanctions affect the oil trade in the region, especially with the IS.

In an Executive Order issued in April 2011, President Obama expanded trade sanctions on Syria in response to documented human rights abuses committed by the Syrian government, with the hopes of weakening the regime of Syrian President Bashar Al-Assad. Later, in December 2014, the U.S. targeted private companies based in Switzerland, the United Arab Emirates (UAE), the Netherlands and Syria found to have trade ties to the Assad regime. The U.S. introduced measures that included issuing financial penalties, barring them from benefiting from American trade and freezing the American assets that the companies held. Although the effect of cutting off oil trade with Assad regime may have aided rebel groups in the short term, it has yielded an unforeseen result: the strengthening of the IS.

The vacuum left by recent trade sanctions has made the import of oil across the Syrian border difficult, causing the Syrian government to rely on alternative sources of fuel. As of Sept. 7 of this year, the last remaining oil field under the control of the Syrian regime fell to IS, further exacerbating the situation. Notably, reports have surfaced that the IS has been selling back barrels of oil seized in the eastern part of Syria to the Syrian regime through third party business intermediaries with close ties to the Assad regime. Some sources have even traced oil from the IS to Turkey, where smugglers sell the oil for roughly $350 a barrel, which is approximately triple the price of local Turkish oil. With such large profit margins, oil is a lucrative illicit industry for the IS.

Engaging in the oil trade with the Assad regime may have the effect of strengthening government forces, allowing for regime to perpetuate violence on its own citizens. However, cutting off ties with the regime opens up trade avenues that may produce much more disastrous results. As highlighted by former oil executives and energy experts in Syria, the IS is able to generate roughly $2 million in oil revenue a day from the sale of crude oil. Reports of recent clashes with rebel groups in the area have led to the IS using fuel as a means of political control, often resulting in disastrous results for citizens who are unable to fuel their homes, clinics unable to treat the wounded, and first responders unable to perform their duties. The ability of the IS to sustain itself through its oil revenue has made them an even more dangerous third party factor in the Syrian conflict.

FINDING SOLUTIONS TO A COMPLEX PROBLEM

The inevitable victims of this catch-22 are the Syrian citizens. With no better alternatives, their only remaining option is to leave their homes. Syria has become a political minefield, caving to the political interest of multiple state parties and private individuals. It is not enough to condemn the financial transaction of states with the IS—that much is evident. It is a complex and nuanced situation, which demands an international response that is catered to its specific set of circumstances. The refugee crisis cannot be addressed from a lens of migration, or counter-terrorism or state responsibility to protect refugees alone. Addressing the source of the conflict requires a solution that is as multi-faceted as the situation on the ground.

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: Baron Reznik/Creative Commons


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Russia’s legislature, prosecutors tighten the screws on online expression

By Thomas Callahan

With a Constitution that codifies restrictions on certain types of expression, and a storied history of targeting alternative political voices, it is unsurprising that Russia is currently in the midst of a campaign to silence inconvenient speech on the Internet.

This summer, I returned to Moscow to conduct legal research and reporting with a large international human rights organization (which I will not name due to the organization’s security concerns) as a Leitner Center Summer Fellow. I was tasked with researching and writing a report documenting this recent free speech crackdown in Russian legislation. This included reading Russian laws, tracking down copies of bills, and interviewing targeted activists across the country.

INCREASING SPEECH RESTRICTIONS

Having worked in Russia for years, and having been here when members of Pussy Riot were thrown in remote prisons on “extremist hooliganism” charges, I find no limits on freedom of expression really shocking anymore. But practically speaking, the sheer number of recent legislative restrictions to online speech means that human rights and free speech advocates in Russia are increasingly unsure about what could bankrupt an organization via administrative fine, or land people in jail. Although some of these restrictions identify concepts like “separatism” and “extremism” as general considerations, in practice, prosecutors increasingly conflate criticism of Kremlin policy in Ukraine, for example, with “threats to the territorial integrity” of the Russian Federation. These laws can also allow Facebook invitations to civil society events to be taken as incitement to rioting. Application of these laws is used mostly to harass political activists.

With many more such legislative proposals in the pipeline, it’s no wonder the old Soviet saying about living on top of a volcano – essentially, waiting for a governmental or societal eruption at any moment – has come back into vogue. The situation is so dire that since March 2014, Russia has been included in a group of only 19 governments in the world to be classified as “Enemies of the Internet” by Reporters Without Borders.

And while the main threat to freedom of expression comes from censorship laws, Russia’s legislature has been hard at work creating various other kinds of new rules for the Internet. These include – but are definitely not limited to – a new provision passed in May 2014 to Russia’s Law On Information that regulates blogs. Dubbed the “Bloggers Law,” it subjects any blog that gets 3,000 or more unique hits in a 24-hour period to many of the same federal regulations as national media conglomerates. The United Nations Human Rights Committee called this law both “vague” and “burdensome.” Indeed, it not only increases legal scrutiny, but also liability for charges like “incitement to rioting,” which is how prosecutors often refer to invitations to “unsanctioned” demonstrations. For these “mass media bloggers,” some types of speech carry a fine totaling 500,000 rubles – about 60 percent of the average annual income in Russia. In other cases, liability may reach one million rubles. With about 65 percent of Russians using the Internet regularly, these laws have real implications on the ability to access information.

Meanwhile, Russia’s prosecutors have been relying on the same, troubling old “extremism” sections of the Criminal Code to harass activists for what they say, or even share, online. In a country compliance review for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee warned that the “extremism” sections of Russian criminal law could be used “silence individuals critical of the State party’s foreign policy[.]” One of the higher-profile cases this summer centered on exactly that fact set. Recent use of one “anti-extremism” provision that threatens speech online has included the conflation of harmless criticism of Russia’s annexation of Crimea with a “threat to the territorial integrity” of the Russian Federation.

It is generally accepted that governments can restrict certain types of harmful speech, such as hate speech. But Russia’s restrictions on online expression are blatantly used to silence unorthodox political voices, which is illegal under international human rights law. While case-by-case restrictions on free speech in specific instances, such as tangible threats to public or individual safety, could be legal, such a process is rarely used in Russia.

CONTROLLING THE FLOW OF INFORMATION

Aside from restricting individual voices online, Russia is creating new controls on how online information flows and is accessed. Since November 2012, Roskomnadzor (the federal media and telecom oversight agency) has maintained a list of banned websites. In its March 2015 review of Russia’s compliance with the ICCPR, the U.N. Human Rights Committee noted that the Internet black list is part of “a number of developments that create separately and jointly a substantial chilling effect on freedom of speech and expression of dissenting political opinions.”

Although a searchable database allows users to find out whether a single website has been blocked, the full list is not made public. We do know that, as of this summer, about 30,000 websites are blocked within Russia. Many of these are child pornography sites and online narcotics markets. However, many of them are also websites linked to prominent political activists. With the recent passage of a law restricting the activities of “undesirable organizations,” many international human rights groups could end up blacklisted online in Russia as well. No court order is necessary; if an official in one of a few federal agencies – or a court finds that a website has published some sort of “banned” information – Roskomnadzor will order Internet Service Providers to block access to it within Russia. Prosecutors and other federal authorities will generally point to information that would be subjected to Russia’s notoriously problematic “anti-extremism” laws when attempting to block a website.

One of many examples of unjustified interference with free speech is the Prosecutor General’s targeting this June of OZPP, a consumer protection group, after it published a legal memo advising Russian citizens against traveling to Crimea, which it called an “occupied territory.” In Russia, such an opinion may constitute a “threat to territorial integrity,” which is why the Prosecutor ordered Roskomnadzor to block parts of the organization’s website, and called on federal investigators to begin an inquiry under an “extremist” provision of the Criminal Code. OZPP could be tried under the “separatism” provision, which carries a five-year prison term. In an obvious due process violation, OZPP only learned that a case against it was already underway days later, after clients reported that they were having trouble getting its website to load.

Regulation of well-trafficked websites remains in flux, as legislative discussion opened in June on a set of amendments to the Law On Mass Media. Proposed changes would introduce the concept of “online publisher” to the law, and this is not a good thing. The bill is vague, but it would appear to subject any host website to mass media regulations if any single one of its pages gets three thousand or more unique visitors in one day. News aggregator websites, the websites of political movements and message boards are some of the main targets of this proposal.

WHAT SHOULD RUSSIA DO?

There is no place for such broad and obvious restrictions to political speech in the year 2015, especially in a country like Russia, whose actions at home and abroad have the power to sway a whole cabal of governments in its large sphere of influence. It is also not too attenuated from these developments to note Russian prosecutors’ congenital conflation of unsanctioned civil events with “mass rioting.” This peculiarity of Russian law enforcement’s relationship with society is a metaphor for the general lack of case-by-case investigation and due process broadly in the Russian legal system. Russia must enter the twenty-first century on these issues in addition to the due process questions regarding speech specifically.

Moreover, Russia is party to both the main international regional treaties that codify freedom of expression: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. Russia has an obligation to conduct case-by-case examinations of restrictions to speech, and not to create functionally blanket bans on some political questions. These types of restrictions are illegal no matter what. Under the European Convention, if a State party restricts expression, it must establish and disclose a purpose that relies on a security or other concerns commensurate with the degree of censorship. Russia fails to do this all too often, a practice that must end.

Furthermore, Article 29 of the Russian Constitution absolutely bars censorship (though this is incongruous with other sections of the constitution). Article 17 of the country’s Constitution also establishes international treaty obligations as an extrafederal basis for domestic legislative and jurisprudential practice. Under its own laws, Russia must bring its legislative and law enforcement practices into compliance with the international obligations it chose and claims to recognize.

Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.

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 courtesy of Thomas Callahan.


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A victims-based approach in the Inter-American human rights system

By Hannah Jane Ahern

This summer, I interned at the Inter-American Court of Human Rights in San José, Costa Rica. I had a chance to observe the court in session, conduct legal research, and work on publications, press releases and speeches. My work this summer was my first exposure to legal work in international human rights, and it was also a crash course in the Inter-American System for human rights protection. I found the public hearings at the Court, and the Court’s system for ordering and monitoring reparations, to be especially compelling and effective means of promoting human rights.

BACKGROUND

The Inter-American Court of Human Rights is one of two bodies created by the American Convention on Human Rights to ensure the promotion and protection of human rights in the region (the other is the Inter-American Commission on Human Rights, based in Washington, DC). The American Convention is an international treaty outlining the rights and freedoms that must be respected by States; it was adopted by the Organization of American States (OAS) in 1969 and went into effect in 1979. The Court hears cases of human rights violations committed by member states that have ratified the Convention and accepted the contentious jurisdiction of the Court. Those countries are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay.

The Court is made up of seven judges, all of whom are citizens of member States of the OAS, and serve a term of six years. States submit a list of nominees to the Secretary General, and each judge is elected by representatives of the member states. They can each be reelected for a second term. The Court convenes for four regular sessions a year at the headquarters in Costa Rica, and two special sessions in other countries. During the rest of the year while the Court is not in session, there is a permanent Secretariat in San José made up of lawyers, interns and other who work on investigations, resolutions and sentences.

PUBLIC HEARINGS AT THE 109th REGULAR SESSION

There were three public hearings during the 109th session that I was present for, two for contentious cases and one related to an advisory opinion. I attended the entire hearing for the first case, Chinchilla Sandoval y otros Vs. Guatemala, which involved the violation of multiple human rights of a diabetic woman with disabilities in a Guatemalan women’s prison. Among the rights violations alleged were the right to life, the right to personal integrity, the right to a fair trial and the right to judicial protection. Due to both acts and omissions on the part of the State, the victim received grossly inadequate medical care and suffered horrible pain and abuses while a prisoner. Her diabetes worsened because of lack of adequate treatment, resulting in the amputation of her leg. On the day she was scheduled to be released from prison, she was found dead, her daughter said.

During the first part of the hearing, we heard over an hour of testimony from the victim’s daughter, detailing the steady decline in health and worsening of conditions that her mother suffered over the course of nearly a decade in prison. She also discussed the mysterious circumstances surrounding her death. It was heartbreaking to hear the allegations of what this woman suffered, and to know that this was a single case among thousands of similar ones of prisoners being denied healthcare and access to justice around the world. At the same time, it was such a powerful experience to be in that courtroom, everyone listening with rapt attention, hearing the victim’s story as told by her family.

After the victim’s daughter testified, we heard from an expert witness who was a lawyer and expert in disability rights. The representatives for Guatemala gave him a particularly hard time, challenging his ability to discuss certain things. For example, they argued that he was not qualified to discuss the medical treatment received because he wasn’t a doctor. The Court rejected this argument completely, saying that medical treatment for a person with disabilities who is in the custody of the State was relevant, and they allowed him to continue. It was gripping and moving to hear from the expert witness about the legal obligations of the State in the case of people with disabilities and, in particular, those deprived of their liberty while imprisoned. While the basic facts of the case were related by the victim’s daughter, the expert witness put them in the context of the State’s internal and international legal obligations.

I also deeply appreciated the focus that the expert witness, and the Court as a whole, put on the intersectional nature of the discrimination suffered by the victim as a woman with disabilities, who is imprisoned. More judicial bodies should appreciate and emphasize the fact that so many abuses stem from multiple and overlapping forms of discrimination. Having had the opportunity to read a great deal of the Court’s jurisprudence, in addition to observing the public hearings, I have been consistently struck by the astute recognition on the part of the Court of this kind of intersectionality and the consequences that it has for so many victims of human rights violations.

REPARATIONS

After the hearings are completed, cases enter the merits phase, the stage at which Chinchilla Sandoval y otros Vs. Guatemala is at now. At this stage of the judicial process, the judges deliberate on the merits of the case, weighing the evidence of each alleged violation. The final judgment includes their decision regarding every violation, as well as an order to make reparations. The reparations ordered by the Court are intended to make the victims whole, or as close to whole as possible, as well as ensure that the violations that occurred are not repeated. Reparations always include some kind of public and permanent commemoration of the victims, as well as publication of the judgment in national newspapers or other media that will get widespread attention. They also often include orders for States to amend their internal legislation so that the violations that occurred are formally criminalized within their internal legal systems. Following the judgment and order of reparations, the Court continues to monitor compliance with the reparations until all of the measures ordered have been completed. It is a radical and comprehensive way of ensuring that States conform to the standards of the American Convention, and providing justice to victims and their families.

Working at the Court, witnessing the victims’ stories being told in a legal, international and public forum, and having the opportunity to see through some kind of justice in the form of reparations decided by the Court is the most fulfilling experience I have ever had. We hear about human rights abuses across the world all of the time in the newspaper and on the news; however, it is a completely different experience to see and hear actual victims telling their story in their own words, having a judicial body give credence to what they are saying, and working to figure out a way to right some of the horrific wrongs they have suffered.

Hannah Jane Ahern was a 2015 Leitner Center Summer Fellow. She interned at the Inter-American Court of Human Rights.

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: Eli NW/Creative Commons


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The case for corporate social responsibility (CSR): a report back from the Leitner Center’s CSR Leadership Course

By Takahisa Juba

Situated in the one of the largest business districts in the U.S.—Midtown Manhattan—the Leitner Center for International Law and Justice at Fordham Law School hosted their second annual Corporate Social Responsibility Leadership Course on June 11-12, 2015. The large number of participants and their diversity denotes the growing importance of corporate social responsibility (CSR) and demand for education on the topic. As the world continues to become more interdependent and integrated because of globalization, businesses have been the primary driver of this inevitable trend as they seek new markets and resources. Acknowledging their vital role in development and poverty alleviation, businesses’ growing power and presence have also raised concerns about the negative impact they may have on society. Since the 1960s, CSR has garnered attention and spurred action, evolving from a public relations catch phrase to an issue that is of growing focus and legitimate concern to companies both from a business and legal perspective. With panelists ranging from business executives to general counsels, attorneys, accountants, financiers, academics and a UN representative, the CSR Leadership Course explored some of the most pressing questions and issues in the field.

GROWING IMPORTANCE AND ROLE OF CSR

Despite the importance of CSR, companies face challenges in implementing CSR initiatives both internally and externally because the financial impact of CSR may not be immediately evident or quantifiable. However, investors are growing more concerned with a company’s CSR performance and this trend will likely continue. Moreover, the Rana Plaza building collapse in Bangladesh, which killed over a thousand garment workers, was a game changer. Businesses can no longer ignore such risks, and integrating CSR into their business approach is one way for companies to minimize reputational risk and conform to millenials’ demands for companies to become more socially responsible.

A key part of practicing CSR is making ethical commitments and choices, such as pledging to end human trafficking in a company’s supply chain, which can be a lengthy and conflicted process. What seems to distinguish ethical companies is the atmosphere established from the top down. However, the economic realities of slowing revenue can put pressure on maintaining ethical commitments. In many cases ethical choices may give way to economic considerations. For example, the nature of multinationals (companies based in one home country but manufacturing in a range of countries along their supply chain, and selling in many more) may pose ethical problems as a company may choose to abide by regulations that establish high ethical standards in one country but lower their standards in another as the regulations are less restrictive allowing for less ethical or more predatory practices.

AFFECTING SOCIAL CHANGE

Businesses, undoubtedly, influence a broad variety of social issues. How they impact these issues depends on the company’s policies and priorities. With regard to the environment, some financial institutions have adopted project financing guidelines to regulate environmental and social impacts of financed projects such as the Equator Principles, which establish requirements for environmental and social assessment, performance and reporting. Companies can hold themselves accountable for their environmental impact by voluntarily reporting their impact through the Global Reporting Initiative or the Carbon Disclosure Project. In general, however, sustainability reporting is still evolving as stakeholders determine what issues are important and how impacts are measured, the panel on sustainability reporting pointed out.

Companies also play a major role in women’s empowerment. In general, women have been underrepresented in positions of power in companies and certain industries like tech. But innovative initiatives, like scholarships, training programs, and flexible guidelines, can provide a more supportive environment for women in the workplace.

In contrast to the private initiatives addressing environment and women’s empowerment, the role of legislation has been instrumental in combating human trafficking. U.S. Federal regulations prohibit any contracts with the federal government that involve human trafficking. In addition, state laws such as the California Transparency in Supply Chains Act requires disclosure of efforts by companies to eradicate human trafficking from their supply chain.

LEGAL OBLIGATIONS

Domestic laws and regulations can play an important role in holding businesses accountable and ensuring that their businesses are conducted in a sustainable manner. However, international law does not directly regulate private businesses. The traditional view is that international law governs states and they have the responsibility to enforce the law against companies and individuals. It is uncertain if binding international law directly regulating multinational corporations will be adopted in the near future. However, there are “soft laws” that apply to businesses internationally such as the UN Guiding Principles on Business and Human Rights.

Under the Guiding Principles, states have the duty to protect human rights and businesses have the responsibility to respect human rights while both have the responsibility to provide remedies for negative human rights impacts. This can be complex and daunting for certain businesses. For example, a law firm’s responsibility to protect human rights can conflict with an individual’s right to representation, even those who may be guilty of a crime or human rights violation. In those cases, the lawyer or law firm must make a decision, but a human rights policy for the firm may be a good starting point to establish a proper decision making framework. In another instance, those who perform human rights due diligence for a private company—a responsibility under the Guiding Principles—may also face a difficult decision in helping a company that has committed human rights violations. The question that some may ask is if engagement with companies that have committed abuses could improve human rights conditions in the country and company’s operations.

LOOKING FORWARD

The trend toward an increasing focus on CSR is a welcome development, especially for human rights. The Leitner Center’s course emphasized the important role and impact of CSR to business and society. It not only identified challenges in implementing CSR but importantly, how to address them through real life examples, case studies and legal expertise. There is no one model for CSR, but there is no doubt that businesses must strive to conduct themselves in a socially responsible manner.

Takahisa Juba is a Leitner Center and Fordham Law School alumnus. He attended the 2015 Corporate Social Responsibility Leadership Course.

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.


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Shining a light on human rights abuses in Central Asia

By Zahava Moerdler

As the world focuses its attention on the nuclear deal with Iran and the debt crisis in Greece, many other important issues are left out of the global discourse. In fact, an article about the blatant human rights abuses in Central Asia rarely makes it into the newspaper, let alone onto the front page. Yet, gross injustice and repression persists in the region. Here are some worrisome examples: In Kazakhstan, there is increasing repression of freedom of expression and free media. In Tajikistan, the government persecutes people and groups working on issues such as freedom of expression, religious freedom and political participation. In Kyrgyzstan, while there is a vibrant civil society, some organization are coming under pressure and the parliament is considering two restrictive pieces of legislation: a homophobic “propaganda law” that would restrict freedom of speech and impose penalties for promoting non-traditional sexual relations and a “foreign agents” law that would force groups with foreign funding to register as foreign agents. In Uzbekistan, following the Andijan massacre in 2005, the government cracked down on civil society organizations, imprisoned human rights advocates and evicted international journalists and monitoring groups. Finally, in Turkmenistan, the government employs imprisonment to retaliate against dissenters and refuses to provide information about those imprisoned years ago who have since disappeared.

Despite the lack of media coverage about these issues, there are some in the U.S. government that are still keenly interested in the human rights situation in Central Asia. A recent hearing before the Tom Lantos Human Rights Commission, in which U.S. government representatives laid out a number of their concerns for the region, paints a troublesome picture. First, there seems to be a connection between religious freedom and violent extremism. For example, religious repression correlates with a rise in violent extremism. Robert Berschinski from the Bureau of Democracy, Human Rights and Labor testified before a Congressional hearing that heavy-handed policies of restricting expression, religion and peaceful gatherings lead to radicalization. This is followed by more restrictive governmental policies, in the hopes of combating extremism. Second, the region lacks meaningful participation in government and a robust opposition, resulting in unhealthy political systems. For example, in Uzbekistan, Islam Karimov, who has been in power since 1990, was once again elected in a “predictable landslide victory.” Tajiki elections are neither free nor fair, and media coverage was restricted during the recent elections in Kazakhstan where President Nurzulran Nazabayev was re-elected without any real opposition.

Third, the region has increasingly restricted the work of civil society. In Kyrgyzstan, a law modeled after Russian laws, curtails the effectiveness of civil society groups. Any group receiving foreign funding and involved in political activities would have to register as a “foreign agent.” Additionally, any material published by such groups would have to note that they are distributed by a “non-commercial organization acting as a foreign agent.” In Uzbekistan, journalists are treated deplorably. For example, Muhammod Bekjanov, a journalist, has been imprisoned for 16 years after publishing and editing an opposition newspaper. In Tajikistan, the government has blocked Internet access and restricted freedom of expression. And in Turkmenistan, media censorship and surveillance of journalists is the norm.

One of the most alarming results of the intense human rights repressions across Central Asia is its effect on the radicalization and migration of foreign fighters to Syria and Iraq. [This trend was mentioned at the hearing, but it was also something repeatedly brought up in hearings and briefings before various panels on ISIS, Central Asia and Syria] Unfortunately, this has resulted in a negative feedback loop: governments believe that more restrictions are necessary to curb radicalization of their citizens; but more people are radicalized due to these same restrictions.

As these abuses persist in the region, the U.S. and other governments can play a role to curb growing radicalization and human rights abuses. During the hearing, Jeff Goldstein, a senior policy analyst for Eurasia at the Open Society Foundations, argued that the U.S. needs to move resources away from security programs and into governance, education, employment, health care and democratization in the region. He also stressed that there will be no effective reform where there is no will to create it. Therefore, the U.S. must work with movements on the ground in each respective country.

Allison Gill, an expert on Central Asia from Amnesty International, also suggested that the U.S. could take a number of actions specifically concerning Uzbekistan, including: take a leadership role in creating a United Nations report on Uzbekistan’s human rights record; urging the Uzbek government to open the country to independent scrutiny by allowing UN special human rights monitors and ending the restrictions on civil society; calling for the release of all imprisoned journalists and human rights defenders; providing support to Uzbekistan in its effort to amend the Criminal Procedure Code to expressly prohibit torture.

Although the situation in Central Asia seems bleak, there have been some hopeful changes. Tajikistan and Uzbekistan have both legislated against child labor in some way, and there is legislation pending to outlaw forced adult labor in Uzbekistan. Additionally, Turkmenistan recently released a number of religious leaders, demonstrating a modicum of religious freedom. These successes show how change is possible in the region. However, Central Asia still has a lot of work to do to promote democracy and freedom of expression, religion and association.

Zahava Moerdler was a 2015 Leitner Center Summer Fellow. She interned with the House Foreign Affairs Committee Democratic Staff.

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: Jose Javier Martin Espartosa/Creative Commons