Rights Wire

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

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How the Trans-Pacific Partnership fails human rights

By Rodrigo Bacus

On Nov. 5, 2015, the Obama administration released the full text of the Trans Pacific Partnership Agreement (TPP), triggering a three-month Congressional review for approval. The TPP was negotiated between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States, representing around 40 percent of the world economy. The TPP covers a broad range of topics including patents, intellectual property, labor trade, free trade, investments and the environment. Since 2008, the TPP has been negotiated in secret, attended mostly by large corporations and their lawyers, prompting criticism from various groups that were concerned over the effects of the agreement’s provisions. These concerns were exacerbated when WikiLeaks released some draft provisions of the agreement in 2013, confirming many groups’ fears over human rights protections in the agreement. The full 2015 text of the TPP has not made much of an improvement in its rights protection language since 2013, notably lacking any reference to the term “human rights” in any of its chapters. The TPP’s controversial provisions have prompted different rights organizations to actively campaign against the agreement, highlighting various issues relating to labor, the environment and healthcare. What’s worse is that the TPP’s primary enforcement mechanism, which prioritizes the rights of corporations, pulverizes national sovereignty in the interest of profit. Given these provisions, the TPP is deliberately set up to benefit private corporations and the global elite.


The Office of the United States Trade Representative, among other supporters of TPP, promises that the agreement will “level the playing field” of labor rights and standards. Yet, the actual provisions of the TPP belie modest improvements to labor rights that do not address other important concerns of labor organizations around the world. The TPP does not reference the fundamental conventions of the International Labor Organization (ILO), which protect the right to organize, collective bargaining and equal remuneration, and also prohibit child labor, forced labor and discrimination. The agreement refers only to core labor rights in the ILO Declaration of 1998 and completely omits the core right to equal remuneration (sometimes referred to as “equal pay for men and women”). Lacking a reference to ILO Conventions limits the ability to hold state governments and corporations accountable to labor rights to the TPP’s enforcement mechanism. Failing to include the core right to equal remuneration ignores the impact that globalization and free trade has had on the welfare of women laborers around the world.

Moreover, the TPP allows for derogations from “acceptable conditions of work” if the company’s lowered standards do not otherwise impose forced labor, child labor, discrimination, or restrictions on collective bargaining and unionization. This means that a company does not have to meet minimum wage, work hours or health and safety standards so long as their conditions do not violate core labor rights, except for equal remuneration, and the company is outside of export processing zones or other special zones. As a result, most laborers are more vulnerable to violations of labor rights under the TPP.

Not to mention, the TPP omits reference to or protections related to other contemporary labor issues championed by labor organizations around the world. Many labor organizations have been pushing for the creation of a living wage standard, which takes into account the needs of laborers around the world as it is tied to their welfare and conditions inside and outside of work. The language suggested by labor rights organizations is reflected in the ILO’s Minimum Wage Fixing Recommendation, which makes the goal of the living wage standard “to overcome poverty and to ensure the satisfaction of the needs of all workers and their families.” In comparison, the TPP’s provision of adopting and maintaining “acceptable conditions of work” is weak, omitting the goal of standards of wage and labor conditions to address poverty and limiting the interpretation of “acceptable” to TPP’s self-contained enforcement mechanism.


There are similar concerns that the TPP’s provisions on environmental preservation are noncommittal, and trump actual obligations by nation-states under multilateral environmental conventions. The TPP does not prohibit the trade of lumber and wildlife products acquired through means that violate environmental laws, obligate countries to abide by trade-related provisions related to conservation or ban certain forms of industries that affect wildlife and environmental conservation. Instead, it asks countries “to combat” illegal trade, “endeavor not to undermine” country obligations to the conservation of fish and other industries and only “promote” the conservation of sharks and other species. The TPP’s language on environmental issues is essentially retrogressive of many multilateral environmental conventions that have been made in the past. Moreover, it only mentions one such multilateral environmental convention, the Convention on International Trade in Endangered Species of Wild Flora and Fauna, binding only the TPP signatories who are also parties to that convention.

Despite a global message from people’s movements fighting against climate change, the TPP makes no mention of “climate change” in its chapter on the environment. What it does have are weak provisions on emissions and the protection of the ozone layer. The low emissions provision only “acknowledges” a “transition” to a low emission economy. The provisions on the ozone layer only control the production, consumption and trade of substances in the Montreal Protocol on Substances that Deplete the Ozone Layer. The Montreal Protocol only lists various fluorocarbon gases known to deplete the ozone layer (CFCs, HCFCs and HFCs); it does not cover a wide range of other products that directly impact climate change, such as fossil fuels. The TPP does give corporations the ability to enforce their expectations of profit on fossil fuel extraction on signatory states through the TPP’s self-contained enforcement mechanism. Looking at analogous trade agreements suggests that such a mechanism will have a chilling and damaging effect on efforts to protect the environment. As an example, El Salvador’s choice to listen to its people and hold off on resource exploration to preserve the environment was met with an arbitration case with damage claims far exceeding the country’s GDP.


The TPP’s provisions on intellectual property also raise concerns about healthcare and the access and availability of affordable lifesaving medication. Modeled after the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, the TPP’s patent provisions significantly strengthen the ability of pharmaceutical companies to easily acquire patents over newly developed medication and, in most cases, extend the monopoly period of such medication after the patent is acquired. In return, the TPP includes some “understandings” that merely “affirm” the signatories’ commitment to public health and provides for a limited option for countries to protect public health during health crisis situations. Countries may take other measures, but they are not otherwise obligated and are still subject to the TPP’s self-contained enforcement mechanisms when taking such measures, which will be discussed later.

The concerns related to access and availability of medication under TRIPS and similar agreements (generally known as TRIPS plus agreements) are well-known. The traditional intellectual property rights regime creates two problems when it comes to lifesaving medication. On the one hand, pharmaceutical companies are incentivized purely through sales profits when inventing medication, thus leaving inadequate incentive to research and develop products that save the lives of poor people. In addition, even if a company has created a particular medicine, the monopoly provisions of a traditional intellectual property regime allows the company to raise the drug prices for maximum profit, which makes it difficult, if not impossible, for the poor to afford the available medication. The provisions in the TPP do not address either problem of access to and availability of lifesaving medication, leaving states to address public health crises, such as HIV/AIDS, malaria and Ebola, with whatever methods or devices they had in the past. Yet, such practices could come under attack due to the private enforcement mechanism that is available only for corporations under the TPP, which will be discussed in-depth in the next section.


The biggest problem with the TPP’s provisions is its overarching enforcement mechanism that uses private arbitration tribunals to resolve disputes between companies and states. Even if the TPP’s provisions on labor, environment, and health care were more rights-respecting, such an enforcement mechanism still highly favors companies over the interests of the signatory governments, let alone the people of those countries. An arbitration tribunal comprises of a panel of arbitrators, usually three individuals, who make decisions over a dispute between two parties. Because the arbitration is private, the parties are often under contract not to disclose the details of the case. However, unlike companies, states have to be accountable to their constituents, particularly relating to their obligations under human rights law. Investor-state arbitrations are still generally private affairs, with some cases released to the public under mounting pressure from people directly affected by them.

Investor-state disputes have also historically favored corporate interests over state interests. When analyzing disputes based on their merits, corporations win a favorable decision 60 percent of the time. Arbitration panels also tend to comprise of a small group of career arbitrators, with an “elite 15” making decisions in 55 percent of investment treaty cases. This essentially creates an oligarchy of arbitrators that favor corporate interests over the state or its people. Meanwhile, the interests of the people, including their human rights and dignity, are generally left out of such a dispute. In particular, under the TPP, states are unable to uphold human rights and other obligations because they are explicitly left out of the TPP’s provisions.

The most egregious issue with investor-state dispute arbitration is that only companies have a right of action against states. States do not have a right of action against companies under the TPP, although it provides for a right of action against other states. This means that while states cannot sue or take action against companies using the TPP’s mechanisms, companies can sue countries over the loss of their expected profits, even if these profits were lost due to regulations or actions in the public’s interest. This is of particular concern for indigenous peoples, who are not adequately protected under the TPP. The TPP does not include the concept of free, prior, and informed consent, one of the foremost protections that indigenous people have to protect and retain their land and resources. With such strong protections for corporations under the TPP enforcement mechanism, corporations will be free to exploit the ancestral lands of indigenous groups for gold, timber and other natural resources.


Right now, if the TPP is ratified, it will only bind signatory countries. However, more countries will be able to join the TPP once it comes into force. Members of the Asia Pacific Economic Cooperation (APEC), for example, have already expressed optimism about the TPP and their interest in creating a regional market hub after its passage. This means that the TPP has the potential to drastically alter the global economy and conditions for millions of people. The fact that corporations can act with impunity within the TPP framework while benefiting their bottom line tremendously has sparked condemnation and action from human rights organizations in opposition to the agreement. Many are concerned over the effects of TPP in the long term.

In the face of water cannons, tear gas, and other forms of severe state repression, protesters of the APEC Summit, held in the Philippines, protested the summit and the unveiling of the TPP. In the U.S., over 1,500 advocacy groups signed a letter opposing the TPP. And from Malaysia to Peru, protesters have gathered to urge their governments to not sign the treaty. Rights organizations have decried the TPP’s attack on “sovereignty, human rights [and] efforts to create sustainable communities and limit climate change.” Other activists and organizations, such as KARAPATAN, a Philippine human rights organization, have criticized the agreement as imperialist, advancing the expansionist ambitions of the United States over the Asia-Pacific. While the U.S. is expanding militarily through agreements such as the Enhanced Defense Cooperation Agreement in the Philippines, it is achieving economic expansion through the TPP. With much at stake, activists and groups are calling on countries to say #NotoTPP.

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: GlobalTradeWatch/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.


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.


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.


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 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

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U.S. failure in Kunduz: a mistake that violates international humanitarian law?

By Amaury A. Reyes-Torres

War is neither fair nor pretty. But it does not mean that there are not rules that govern the conduct of those involved in conflict. The primary aim of these rules, embodied mainly in the Geneva Conventions and in customary international law, is to protect civilians, the sick, the wounded or those who no longer fight. These rules extend to objects and buildings, such as medical units, that deserve special protection because of the purpose they serve.

In October 2015, U.S. forces mistakenly bombed a Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, likely in violation of international law. Despite several separate investigations, the details of what exactly happened are still unclear, revealing how the U.S.’ response to this tragedy lacks transparency. As survivors, families of the victims and MSF seek answers, transparency and accountability should be paramount.


Kunduz has been the location of intense fighting against the Taliban, and was especially so during the first two weeks of October when the Taliban gained control of the city. On Oct. 3, the U.S. military forces conducted a military operation against the Taliban, which consisted of bombing specific targets in Kunduz. But the military operation did not go as expected.

The offensive, carried out by a US AC-130, did not hit a military object, but rather a medical facility operated by MSF, known as Doctors Without Borders in English, despite the fact that MSF had shared their GPS coordinates with all sides of the conflict. The medical facility was occupied by doctors, patients and other staff members during the time of the air strikes, and the attack killed 30 people, including staff and patients, and injured over 27 others. MSF staff described horrible scenes of confusion and suffering, where patients burned in their beds and close colleagues had to operate on one another. The bombing lasted over 30 minutes, despite repeated calls to U.S. and Afghan officials at the beginning of the attack stating that they were hitting a hospital. The personnel in the facility had no opportunity to evacuate.

The U.S. responded with conflicting reports in the four days the followed. The U.S., at first, described the event as an incident where a nearby medical facility could have sustained collateral damage. Later, the U.S. stated that its forces were supporting Afghan forces that were being attacked by the Taliban, and several civilians were struck by accident. Then, the leader of U.S. forces in Afghanistan testified that the airstrikes were ordered by the U.S. and that a hospital has been mistakenly struck. The question is: did this action by the U.S. violate international humanitarian law?


The conduct of hostilities in international law is regulated by four major principles: the principles of distinction, proportionality, necessity and the prohibition against unnecessary cruelty. Each of these principles play an important role in how the parties to any armed conflict (international or non-international in character) should formulate military objectives and prioritize the protection of civilians or protected objects.

The principle of distinction has two important components. First, the parties in the hostilities must be able to distinguish between civilians and combatants, or persons who directly participate in hostilities. The same applies with respect to wounded combatants who are considered hors combat, or people who are no longer engaging in conflict. This principle reflects customary international law, and it is included in the U.S Commander’s Handbook.

According to Sandesh Sivakumaran, a professor of public international law at the University of Nottingham, there are certain objects that are entitled to special protection. Although it can be argued that they are, after all, civilian objects because of their purpose, medical units have special protection during the conduct of hostilities. Under this rule, medical units should be respected and protected under all circumstances, unless they are being used outside of a humanitarian function. This includes when no one is receiving care.

This obligation to respect and protect medical units derives from Additional Protocols I (AP I) and II (AP II) to the Geneva Conventions, as well as from article 19 of the First Geneva Convention I, a treaty ratified by the United States. Also, article 18 of the Fourth Geneva Convention (also ratified by the United States) extends these protections to civilian hospitals, which are not necessarily formal hospitals, a category in which the facilities of MSF may fall. Moreover, even countries like the United States, which has not ratified Protocols I and II to the Geneva Conventions, must respect the prohibition against attacks on medical units and transportation bound for medical facilities because these rules are a part of customary international law.

Because an object like a medical unit is entitled to protection, several steps must be taken by all parties in engaged in hostilities. First, all parties must distinguish between a military object, which can be subject to a lawful attack, and a civilian or medical object against which a direct and purposeful attack is forbidden.

Second, under international customary law, all parties must take precautions – especially when it comes to air warfare – to protect civilians and civilian objects in good faith and with due diligence. Under AP I, all parties must: 1) do everything possible to verify the nature of an object; 2) take all necessary precautions, including in the means and methods of attack, to avoid or minimize collateral damages to civilians and civilian objects; and 3) be aware that certain actions could entail a violation of the principle of proportionality.

The amount of information available at the time of an attack is a large determinant of how lawful an attack is. The information available must be reliable, up-to-date and properly interpreted by decision-makers at the time of the action. In this respect, the timing of an attack may be extremely important, as civilian losses can be avoided at certain times of day.

More importantly, parties are obligated to give effective warnings prior to attacks, which is a well-settled rule of international law, according to Yoram Dinstein, an international law scholar. The warnings should alert civilians and civilian facilities that an attack is imminent.


In the Kunduz bombing, the U.S. military launched an attack on a medical facility, an object that is protected against direct and/or purposeful attack under international humanitarian law. The commander of the U.S. forces in Afghanistan testified that the attack was a mistake. It is clear that the U.S. forces did not properly distinguish a protected object from a lawful military target, and that they did not take precautions to avoid civilian causalities.

According to the Associated Press, American special operations analysts knew that the place of attack was a medical facility. In fact, according to The Guardian, MSF had communicated its coordinates to both U.S. and Afghan authorities as recently as Sept. 29, but apparently this was disregarded.

MSF also said that they were not warned of the attack, as is required under international law as well as the Department of Defense’s law of war manual. Therefore, there are strong indications that the attack was unlawful under the laws of armed conflict. MSF may be justified in calling this a war crime, according to Professor Mary Ellen O’Connell from the University of Notre Dame.

Although President Barack Obama did apologize to MSF, and launched investigations into the events, it is unclear whether the U.S. government will hold accountable the individuals responsible for the ultimate decision to bomb the hospital. Not only do the victims have a right know what happened, but it is also imperative for the U.S. to be as transparent as possible so that humanitarian organizations that do dangerous but necessary work feel reassured to continue or restart their operations.


This tragedy shows us that in the wake of unlawful attacks there is a need for transparency. There are two main questions that require answers: (1) what led the U.S. to believe the target was legitimate at the time of the attack?; and (2) if U.S. knew this building was a hospital, what led them to believe the medical unit had been stripped of its protection under international law?

MSF has called on the U.S. to consent to an independent fact-finding commission, arguing that the U.S., NATO and Afghanistan cannot be relied on to conduct neutral and transparent investigations. This request has unfortunately fallen on deaf ears.

The International Humanitarian Fact-Finding Commission has a mandate to investigate violations against international humanitarian law like the attack in Kunduz. It was created by article 90 of the AP I, and its president has declared that the commission is ready to investigate the attack in Kunduz. Although United States is not a party to AP I, it can still consent to investigation by the commission. Afghanistan can consent as well to its ad hoc jurisdiction.

One potential pitfall of the commission is that it was created by an international document pertaining to international armed conflicts, and not internal armed conflicts like the one taking place in Afghanistan. But, a broad reading of the ad hoc jurisdiction text in article 90(2) AP I could include non-international armed conflicts, which would allow for accountability and transparency in the wake of this tragic incident.

Recently, President Obama announced that U.S. forces will remain in Afghanistan soil until at least 2017. Now, more than ever, the U.S. must meet its obligations under international humanitarian law. In the case of Kunduz, the U.S. must consent to an independent investigation for the sake of the victims who deserve to know the truth. By doing this, the U.S. will show that it is committed to the rule of law, and that it believes that independent investigations are good policy.

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: Annette Dubois/Creative Commons

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Colombia-FARC peace talks: evaluating the transitional justice agreement

By Amaury A. Reyes-Torres

After years of conflict and failed attempts to reach a peace agreement, there was a significant breakthrough in the latest round of negotiations, which began in 2010, between the Government of Colombia and the Revolutionary Armed Forces of Colombia (FARC), the country’s largest rebel group.

On Sept. 23, Juan Manuel Santos, the President of Colombia, and Rodrigo Londoño Echeveri, FARC’s high commander who is also known as “Timochenko,” released a joint declaration outlining an agreement on transitional justice, victims’ rights and reparations, the most contentious negotiation point of the ongoing peace process. This step brings Colombia closer to a comprehensive peace agreement, which would mean the end of one of the longest-lasting conflicts in the region.

Despite this significant progress, there have been mixed feelings about transitional justice agreement reached between the government of Colombia and FARC. On one side, people are supportive and hopeful about what a peace deal may actually bring to Colombia; but on the other side, critics of the agreement have been skeptical about the content and practical challenges of the transitional justice deal. Nonetheless, the outline is a step towards legal accountability, reparations and reconciliation. But two questions remain unanswered: will FARC comply with the final peace agreement? And will this recent breakthrough truly serve the principles of transitional justice?


According to the United Nations Guidelines on Transitional Justice, transitional justice is a conglomerate of judicial and extrajudicial mechanisms that help societies come to terms with widespread rights violations. These tools serve to facilitate the prevention of future conflicts or repressive rule through the promotion peace, reconciliation and rule of law. Transitional justice seeks to understand the roots of conflict, to adopt the necessary measures to prevent new ones and to pursue accountability.

Any process of transitional justice should be carried out in accordance with the principles of truth, justice and reparation, including institutional reforms, effectively addressing the need of the victims and the reconstruction of a country’s social fabric. Furthermore, the victim’s right to know the truth should carry great weight in this process. According to the Inter-American Court of Human Rights, states have an obligation under the American Convention on Human Rights to guarantee the right to know the truth. This may entail the creation of a truth commission to preserve historical memory and ensure accountability. After all, justice can only be served and due reparations awarded if the truth is uncovered.

Recently, a new principle has emerged that was arguably already implicit in the other three principles: the principle of non-recurrence. According to the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, a “general commitment to adhere to a right involves making efforts to ensure that its violation ceases and is not repeated.” Thus, ensuring non-recurrence should be part of a comprehensive transitional justice strategy. This may require substantial institutional transformations to prevent new recurrence of future conflicts and with them, new human rights violations. While truth, justice and reparations serve a contributive function, the guarantee of non-recurrence serves a preventive function.

Transitions take quite some time and the peace process in Colombia is a good example of this. The Colombian conflict has been ongoing for more than 60 years. Although there have been several failed attempts to reach a peace agreement, it has only been in the last few years that substantial progress has been made, and peace may finally be a reality.


The latest agreement on transitional justice places victims at the forefront of the peace agreement. Both parties believe that the victims should be compensated and by no means left out of the peace deal that is being negotiated. The agreement would establish a special jurisdiction for peace within Colombia’s justice system. Adopting the form of an international mixed tribunal, the jurisdiction will be integrated with Colombian and international judges in order to ensure its independence and impartiality. It will serve three main functions: 1) to end impunity for crimes committed during the conflict or in connection with the conflict; 2) to uncover the truth; and 3) to investigate, judge and sanction those responsible for the gravest crimes committed during the conflict, including those who participated directly and indirectly in the commission of gross human rights violations, regardless of whether they are FARC combatants or state agents. The sanctions system must satisfy the rights of victims, help consolidate peace and have an effective reparative and restorative effect

The special jurisdiction for peace will follow two different procedures depending on who will be tried within it. One procedure will apply to those who recognize and admit to their actions. The other procedure will apply to those individuals who would claim that they have not perpetrated any crimes, and will be subject to a full trial before the tribunal. The legal consequences will vary as well. Those who recognized and admit their actions will face a sentence between five and eight years in “special conditions” that restrict their liberty, but will not be sent to regular jail. However, those who deny their responsibility, but are found guilty, will face a sentence up to 20 years in prison.

Furthermore, amnesty will be granted for political and other related crimes. However, genocide, crimes against humanity, war crimes and other related crimes, as defined under Colombia’s national law, are not eligible for amnesty. The tribunals created under the special jurisdiction for peace will hear these cases.

Another interesting point in the joint declaration is how special treatment within the special jurisdiction for peace is regulated. Any special treatment will be afforded as long as the offender tells the truth, compensates the victims and guarantees non-recurrence.

Finally, the agreement imposes an obligation on FARC. If they want to pursue any political aim of their own in Colombia, they must lay down their arms as soon as the peace agreement is signed. If they adhere to this, FARC will be transformed into a political movement that the government will support.


Though the transitional justice agreement is a monumental step forward for peace negotiations, it is not without its own set of issues. For instance, only a 10 point outline of the agreement was publicly released. The formal agreement covering all the aspects of the new special jurisdiction, are undisclosed, unknown to the Colombian people.

The secrecy surrounding the final draft of the agreement has brought about public opposition. The Colombian Attorney General, Alejandro Ordonez, and the President of the Council of State, Luis Rafael Vergara, have called for the full disclosure of the text. To calm public dissatisfaction, Ivan Marquez, the Chief of the Peace delegation for FARC, recently stated that the agreement is a document of 75 points that includes restorative sanctions. Though this was a step in the right direction, it does not make the peace process fully transparent.

Furthermore, some fear that FARC’s potential transition from guerilla group to political party may foster impunity and social divides. Under the agreement, there will be no extraditions to the U.S., and former fighters will be allowed to run for political office. The former President of Colombia, Alvaro Uribe, now a Senator, worries that Timochenko, the leader of FARC, might be able to run for president, exacerbating social tensions and divides. Similarly, others fear that those who committed crimes may be able to hold political power and sway, an affront to the victims of abuses. According to the Joint Declaration, the possibility that the FARC may be allowed to pursue their goals through the political system will be detailed in the final peace agreement.

Another important question is whether the accountability and amnesty provisions as proposed in the agreement will deepen impunity. José Miguel Vivanco, the Director of the Americas Division at Human Rights Watch, stated that the agreement may allow those most responsible for human rights atrocities to escape accountability. By allowing those who committed human rights abuses to avoid time in prison, this agreement fails to administer proportionate punishments to the perpetrators of human rights abuses. Furthermore, the amnesty provision, which is meant to be broad, will extend to crimes connected to rebelling against the state, potentially including extortion, narco-trafficking and kidnapping. This, too, could contribute impunity and lack of justice.


The recent agreement on transitional justice constitutes a breakthrough that might close a complicated chapter in Colombian history. However, how both parties conduct their relations during the rest of the peace process and the implementation of the agreement itself will be crucial for justice to be ensured. Moreover, it remains to be seen if the final peace agreement will put a permanent end to conflict and paramilitary violence in Colombia, or if only FARC will be covered, among all the other paramilitary groups.

Camilo Sánchez, research coordinator of DeJusticia, said that this is not a perfect agreement but it is an agreement that will keep Colombia away from the perfect war. The agreement, however, must be as comprehensive as possible in terms of securing the rights of victims and holding those responsible of gross violation accountable. Only by doing this, Sánchez argues, can the two sides truly guarantee non-recurrence.

Time will tell if both sides are committed to truth, justice, reparations and non-recurrence. It is up to the public to demand a just and transparent peace process. Although peace is a complicated goal to achieve, it is a worthy one. However, peace without justice and accountability means nothing for the reconciliation process in the heart of any transitional justice paradigm.

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: Pedro Szekely/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.


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 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.”


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

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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.


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.


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.


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.


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.


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.


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.


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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Two years since Rana Plaza: why the Accord and the Alliance are all the more relevant

By Yo Shiina

Following the devastating collapse of the Rana Plaza factory in Bangladesh in April of 2013, which claimed the lives of 1,129 people, two historic initiatives were launched by the world’s major apparel brands: the Accord on Fire and Building Safety in Bangladesh (“the Accord”) and the Alliance for Bangladesh Worker Safety (“the Alliance”). Both initiatives seek to establish mechanisms for preventing fire and safety hazards. These initiatives are all the more relevant now as increasing international attention focuses on meaningful change in the apparel sector.

During the Spring 2015 semester, the Corporate Social Responsibility Clinic at the Leitner Center for International Law and Justice undertook a review of these two mechanisms to identify structural differences and similarities between them, and to assess the current status of inspections and implementation measures at the supplying factories of some of the major signatory brands.


Ready-made garments (RMG) is the largest industry in Bangladesh, comprising nearly 50 percent of the nation’s economy, according to a report by the Institute of Developing Economies. Approximately 4 million workers work in the RMG industry, 80 percent of whom are women. Through their work, they indirectly support 40 million people, which is approximately a quarter of the entire national population. A typical RMG factory worker may earn about $1,176 dollars per year for six 10-hour work days per week for 300 days a year. This is after the 77 percent wage increase in 2013.

Due to a lack of land space and high population density, garment factories are typically built one upon the other, and in some cases, in former swamp areas. With multiple factory owners sharing the same building, structural weakness tend to be overlooked—highly stressed columns and cracks in beams often go unnoticed. It was in this backdrop that the multiple garment factory complex Rana Plaza, housing five workshops and 2,000 workers, collapsed on April 24, 2013.

Even before the Rana Plaza incident, fire and safety hazards were common in Bangladesh factories. For example, a fire at Tazreen Fashions killed 112 workers in November 2012. Responding to this, the Ministry of Labour and Employment of Bangladesh, in a joint effort with the International Labor Organization (ILO), coordinated the adoption of the National Tripartite Plan of Action on Fire Safety and Structural Integrity in the Ready-Made Garment Sector in Bangladesh, which was signed by the government, employers and workers. This plan set out a blueprint and timeline for respective parties to implement changes ensuring workers’ safety and building integrity. Although the Plan—originally set in place even before the Rana Plaza tragedy—was designated as a response to Rana Plaza collapse, the international community continued to question fashion brands’ culpability in the collapse, even though the brands did not directly own the supplier factories. Images of fashion brands’ labels amid the rubble quickly circulated the Internet, along with media reports of workers laboring in the often abusive environment for a mere pittance until the moment the building collapsed over them. Spurred by the calls for accountability, the brands took action: the Accord was launched on May 15, 2013 and the Alliance on July 10, 2013.


Although both the Accord and the Alliance share the same goal of preventing fires and building safety hazards in Bangladesh and are based on the National Tripartite Plan, there are some marked differences between the two instruments. The Accord is often described as an “European” initiative, as its over 260 members include many top European companies, such as Benetton and Mango. Some American companies such as PVH and Abercrombie & Fitch are also signatories. The Alliance, on the other hand, comprises of 26 North American brands and companies, including J.C. Penny, GAP and Walmart.

The Accord is a legally binding agreement signed by brands, trade unions and NGOs. Over 260 companies have signed onto the Accord. Most signatories are from Europe, but some are also from North America and Asia. Six Bangladeshi labor unions and four global labor unions have also joined the Accord, and four international NGOs are currently acting as witnesses. Signatory companies commit to the Accord’s activity and obligations for the full duration of its existence. Each company commits to maintaining long-term sourcing relationships with its main suppliers, conditioned upon the supplier’s compliance with fire and building safety measures. The Alliance, on the other hand, is comprised of 26 North American brands and retail companies, and is not legally binding in the same sense: signatory companies don’t commit to any long-term sourcing relationships or assistance in remedial measures, and membership can be terminated at any time.

Under the Accord, signatory companies must ensure factory workers’ employment during necessary fire and building safety remediation. They must also work with suppliers to ensure that remedial measures are financially possible. Under the Alliance, the signatory companies have no such obligation. Also, while the Accord obligates signatory companies to maintain long-term sourcing relationships with complying factories, there is no such requirement under the Alliance, whose members may also resign at any time.

Many similarities also exist between the two initiatives. Both the Accord and the Alliance have a limited time span of 5 years to accomplish their objectives (although, in theory, both plans may be extended). Both provide fire and safety training programs and a hotline for factory workers to report dangerous working conditions. And the two pledged to conduct safety inspections of the supplier factories contracted with their company signatories. To that end, signatories are required to publicly disclose their list of contracting supplier factories and work with third party inspectors. However, while the Accord appoints an independent Chief Safety Inspector, who is free from the Accord’s interference except in cases of suspected incompetence or wrongdoing, to oversee inspections, the Alliance employs multiple inspectors who are under its supervision. Moreover, under the Alliance, a signatory company can select the inspector for its own supplier factories.

On top of these efforts, the Accord and the Alliance both publish Corrective Action Plans (CAPs), which are inspection reports for the supplier factories that set out issues relating to structure, fire and electricity in the inspected factories. A review of some of the CAPs conducted by the Clinic, in partnership with an international NGO, identified some recurring patterns: inadequate, blocked or locked exits; electric wires and cables kept under hazardous conditions; and building structure risks, such as highly-stressed columns and beams. To date, both the Accord and the Alliance have completed inspections of all of their respective signatory companies’ suppliers. Some factories were shut down, and non-complying factories that remained open despite warnings were disclosed; signatory companies can no longer contract non-complying suppliers. Visibility of such information is expected to not only heighten public awareness, but also impact the behavior of other supplier factories.


While the difference between the Accord and the Alliance sparked debate in the initial stage, there have been some concerns that the two initiatives only cover a part of the entire 5,000 to 6,000 RMG factories in Bangladesh. The factories supplying covered under the Accord or the Alliance comprise only a part of the whole RMG industry, and non-signatory companies’ supplier factories remain outside the supervision of the international community. Moreover, one of the major obstacles in bringing about transparency and enforcement is the strong political influence exercised by many of the supplier factory owners, many of whom strongly favor the status quo. Another is how the trade association, Bangladesh Garment Manufacturers and Exporters Association has an openly hostile attitude against workers’ rights and changes to the existing structure. Under this political landscape, even if a more worker-friendly law was enacted, the enforcement remains difficult.

It is undeniable, however, that these initiatives—which were motivated by consumer protests and implemented despite the fact that member brands do not directly own their supplier factories—made possible what was before unthinkable. This momentum for increased accountability and worker’s rights is all the more relevant after a recent deadly fire that killed 72 workers in the Philippines. The conditions at the factory was a virtual “death trap,” with windows covered with steel mesh and an inadequate number of exit doors. Initiatives such as the Accord and Alliance, even with their differences, can continue to promote awareness about the chain that links consumers, brands, corporations, supplier factories and labor all together, and what we as stakeholders can do to prevent these preventable tragedies. Though perhaps imperfect, they are a step in the right direction. In today’s world, where the fashion industry is based on increasingly frequent turnover during short selling seasons and is raking up revenues by selling higher volumes of cheaper fashion, we must continue to analyze and appraise what changes these legal instruments have brought on and what more we need to see moving forward.

Yo Shiina is a 3L student at Fordham Law School. She participated in the Leitner Center Corporate Social Responsibility Clinic.

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: NYU Stern BHR/Creative Commons

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Colombia: the peace talks hit a bump, but move forward

By Guillermo Farias

On April 15, the Revolutionary Armed Forces of Colombia (FARC) attacked a group of Colombian army soldiers in the department of Cauca, in the southwest of the country. 11 soldiers died and another 20 suffered injuries, according to official reports. The attack broke the unilateral truce implemented by the FARC since last December.

At first glance, it would be easy to interpret this development as catastrophic or even fatal to the peace process. That is not the case. While the attack by FARC and the government’s subsequent decision to restart airstrikes against the rebels will have serious consequences and might change the dynamics in Havana, Cuba, where peace talks are taking place, the talks will go on. In fact, the government will likely be in a stronger negotiating position going forward.

In the immediate aftermath of the attack, both sides sought to frame the events in a favorable way by using the language of human rights and the laws of war. So far, the government’s version of events seems to have gained more traction with public opinion in Colombia and the international community.

FARC attempted to frame the events as a defensive action, and were quick to point out that the government has continued offensive actions even after the guerilla group declared a unilateral ceasefire. FARC negotiator Félix Antonio Muñoz, who goes by the nom de guerre Pastor Alape and is in Havana for the negotiations, repeated FARC’s claim that the flare-up showed the need for a bilateral ceasefire.

The government, on the other hand, has presented some evidence that the soldiers were ambushed. Relying primarily on forensic reports, the government claims that the soldiers were attacked with explosives and high velocity rounds fired from various angles, all of which point towards offensive action on the part of the guerillas. The Attorney General, Alejandro Montealegre, said that the soldiers were attacked while they were resting and that the attack qualifies as a war crime due to the use of unconventional weapons.

So far, it seems like the government has succeeded in discrediting FARC’s claims that its fighters were defending themselves from offensive action by the military. As a result, FARC has fallen back to claiming that its high command, which has representatives in Havana, did not play a role in planning the attack.

The attacks complicate life for both sides. FARC must address the uncomfortable reality that it is not in complete control of its forces. Further, with the government going on the offensive and restarting air-strikes, the rebel group does not have time on its side.

The government, for its part, once again finds itself having to defend its decision to negotiate with FARC in the face of a public whose patience was running low even before the attack. The political opposition, including former President Alvaro Uribe, lost no time accusing the government of being soft on the guerrillas and falling into a trap by negotiating with them. However, President Santos seems to have found a way to turn the situation in his favor.

On April 18, three days after the attack and immediately after attending a ceremony for the fallen soldiers, President Santos gave an impassioned speech in which he made clear that he understood the rage Colombians felt towards FARC and put pressure on the guerrilla group to speed up the peace process. President Santos also called for the imposition of a clear time frame on the negotiations.

The implications of a demand for a time frame are clear. The government is not willing to remain at the negotiating table indefinitely, and FARC needs to seize the moment and end the conflict now, while it still has a chance to gain concessions from the government.

Guillermo Farias is a Staff Writer for Rights Wire.

Photo Credit: n.karim/Creative Commons

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A scathing UN report, backlash and the urgent need to tackle rampant torture in Mexico

By Guillermo Farias

A recent report on Mexico by Juan Mendez, the United Nations Special Rapporteur on Torture, paints a bleak picture of the country’s human rights record and its generalized use of torture. Practiced by a wide range of actors, from doctors to ministerial agents, torture usually starts as soon as someone is detained and tends to be used with the goal of getting confessions related to organized crime. Its victims often belong to marginalized groups.

The modus operandi portrayed in the report is disturbing. Arresting officers arrive in civilian clothes, sometimes with their faces covered by ski masks, drive unmarked cars, lack proper warrants and don’t explain the motives for an arrest. Those arrested are “blindfolded and driven to unknown locations, including military bases, where the torture continues, consisting of a combination of: punches, kicks and beatings with sticks; electric shocks through the application of electrical devices such as cattle prods to their bodies, usually their genitals; asphyxiation with plastic bags; waterboarding; forced nudity; suspension by their limbs; threats and insults.” Victims of torture are often presented to the media as criminals without having been convicted, itself a form of degrading treatment, the report notes.

Moreover, this torture takes place in a context of almost complete impunity, according to the report. Between 2005 and 2013, there were only five convictions for torture. Even recommendations from the National Human Rights Commission have failed to lead to accountability: not one of its 223 recommendations has resulted in a criminal conviction, the Special Rapporteur critically noted. The panorama is similar at the state level. In Mexico City, officially known as the Federal District, 388 preliminary investigations into allegations of torture have been opened since 2008. Criminal proceedings have been brought in only two cases and 121 cases are still pending. Since 2005, there have been only been three convictions, and the penalties imposed, according to the Special Rapporteur, were not commensurate with the seriousness of the crime. In Chiapas, the state that forms the border with Guatemala, the four torture cases that reached the verdict stage from 2007 to 2013 resulted in acquittals.

To improve the situation, the Special Rapporteur recommended two controversial changes to Mexico’s security strategy and legislative framework. First, ending the use of the military in security operations. The Mexican military has been deployed to combat organized crime groups since the administration of President Felipe Calderon, who was in office from 2006 to 2012. At its apex, in 2012, the military-centric offensive against organized crime groups called for the deployment of 50,000 soldiers, the report said. The deployment of the military, the Special Rapporteur’s report points out, correlates with a massive increase in the numbers of complaints of torture and ill-treatment. From 2001 to 2006, the National Human Rights Commission registered 320 such complaints per year on average. Between December 2012 and July 2014, the Commission received 1,148 complaints related to the armed forces alone.

Second, the Special Rapporteur recommended the elimination of a controversial form of pre-charge detention known in Spanish as arraigo. The measure allows the authorities to detain someone for up to 40 days, with the possibility of an extension, in the course of an organized crime investigation. In the course of those 40 days, authorities are supposed to determine whether to bring formal charges against the detained suspect. In practice, however, arraigo violates the presumption of innocence and creates perverse incentives for torture. There is a marked tendency to use arraigo to “detain in order to investigate, rather than investigate in order to detain,” the report said. Additionally, the Special Rapporteur pointed out that the practice is ineffective: only 3.2% of the more than 8,000 people that have been subject to the measure since 2008 have been convicted.

As if the reports findings were not enough to send chills down one’s spine, the government of Mexico responded to the report by going on the offensive, attempting to discredit the report rather than face its findings.

Government officials were quick to accuse the Special Rapporteur of being unethical and unprofessional.  Mexico’s Foreign Minister, José Antonio Meade, went as far as saying that Mexico would no longer cooperate with the Special Rapporteur. Juan Manuel Gomez Robledo, undersecretary of foreign affairs, argued that generalized torture would be considered a crime against humanity and require the intervention of the International Criminal Court, thus putting the accusation outside the scope of the Special Rapporteur’s mandate. The government was also critical of the report’s methodology, specially its reliance on a small number of cases. As tensions grew and broke standard diplomatic protocol, the Special Rapporteur made clear that he was not accusing the Mexican government of crimes against humanity. However, he made clear that he had gathered enough evidence to sustain the report’s conclusion that torture is generalized.

The government’s strongly defensive reaction makes sense only in the context of a country that lacks a cohesive human rights strategy. Rather than admit that there are serious human rights problems, the government tries to minimize and dismiss criticism in the hopes of avoiding the spotlight of international mechanisms. Given the magnitude of the problem, this strategy is untenable. Instead of attempting to discredit the Special Rapporteur’s scathing report, the government should seize the moment as an opportunity to address the human rights consequences of a security strategy centered on the use of military force and call on the international community for support.

Over a week ago, Mexico’s Foreign Ministry said it considered its disagreement with the Special Rapporteur to be “concluded.” While the government said it stood by its criticisms of the report, it made clear that the country is open to “international scrutiny,” thus walking back some of its more inflammatory remarks. The Special Rapporteur, while standing firmly behind the findings contained in the report, has offered a follow-up visit to Mexico in 2015 or 2016. This is a good first step. Let’s hope cooler heads prevail going forward.

Guillermo Farias is a Staff Writer for Rights Wire.

Photo credit: Eneas De Troya/Creative Commons