Posts Tagged ‘Colombia’

Failed Efforts To Weaken the Inter-American Human Rights System Under the Guise of Reform

March 26, 2013

A prior post discussed the March 22, 2013, resolution by the General Assembly of the Organization of American States (OAS) that strengthened the Inter-American Human Rights System, especially the Inter-American Commission on Human Rights (“Commission”).

In so doing, the OAS rejected efforts to weaken the Commission under the guise of reform proposals that had been offered by Ecuador and other states that the Commission has criticized (Venezuela, Bolivia and Nicaragua).

We now examine the background to that surreptitious effort to weaken that System and the debate at the March 22nd General Assembly meeting

Background

1. Multilateral Treaties and Other Instruments Regarding the Right of Free Expression.

The right of free expression by the media and others is well established in international law.

The United Nation’s General Assembly’s Universal Declaration of Human Rights of 1948 in Article 19 states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In 1966 this was put into legally enforceable form in Article 19 of the International Covenant on Civil and Political Rights, which entered into force in 1976.

To like effect is the American Convention on Human Rights, which was adopted by the OAS in 1969 and which entered into force in 1978. Its Article 13(1) says, “Everyone has  the right to freedom of thought and expression . . . [including the] freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” Article 13(3) goes on to say, “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.”

Elaborating on this right is the Inter-American Declaration of Principles of Freedom of Expression of 2000.

2. Ecuador’s Hostility to Freedom of Expression.

Ecuadorian President Rafael Correa

Ecuadorian President Rafael Correa

Ecuador under the presidency of Rafael Correa since January 2007 has through policies and actions retaliated against journalists and media that have criticized him and his government. Correa has insulted and filed lawsuits against reporters and news outlets and promoted a series of legal measures to roll back press freedoms. His government has expropriated television channels, radio stations, newspapers and magazines.

Journalists in the country also have been subjected to physical threats and assaults with lackluster efforts by the government to investigate and prosecute those responsible.

3. The Commission and Civil Society’s Criticism of Ecuador’s Hostility to Freedom of Expression.

The Commission in 1997 created the Special Rapporteur for Freedom of Expression “to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system and in protecting, guaranteeing, and promoting other human rights.”

This Rapporteur has been in the forefront of criticizing Ecuador for these actions against journalists and the media. Since January 1, 2009 it has issued nine press releases expressing its concern over specific criminal prosecutions and imprisonments of journalists for libel for publication of articles about corruption of public officials and for specific physical threats and assaults on journalists.

In addition, since 2006 the annual reports of the Rapporteur have had sections specifically addressing Ecuador’s conduct in this area.

For example, the latest such report (for 2011) devotes 31 pages (78-108) for a detailed, footnoted review of Ecuador’s assaults and attacks on media and journalists; legal proceedings and arrests (the “Rapporteur is concerned about the consistent tendency of high-ranking public officials to rebuke, arrest, and prosecute citizens who criticize them at public events”); presidential broadcasts and government interruptions of news programs; disparaging statements by senior state authorities against media outlets and reporters critical of the government; constitutional amendment and legislative proposals to regulate the content of all media, establish the grounds for liability and the applicable sanctions and serve as an authority on enforcement; and cloture and regulation of communications media.

Such actions also have subjected the country to similar criticism by the U.N. Human Rights Council in its Universal Periodic Review of Ecuador in the summer of 2012. One of the Council’s closing recommendations in that Review was for Ecuador to reform its legislation regarding freedom of expression with a view to bringing it in conformity with international standards and those of the Inter-American Commission on Human Rights. In response Ecuador said that it could not agree to reform its legal framework in accordance with standards from the Commission, when it is the Inter-American Court of Human Rights, not the Commission, which has judicial competency over this matter. Nor could Ecuador, it said, eliminate laws that criminalize opinion since it had no such laws.

In addition, Ecuador has been severely chastised by the Committee to Protect Journalists, which put the country on its Risk List of the 10 countries in the world where press freedom suffered the most in 2012. Similar rebukes have come from Human Rights Watch, Freedom House and the Washington Post Editorial Board.

4. Ecuador’s Campaign for Its Proposed “Reforms” of the Commission.

In response to the Special Rapporteur’s persistent and documented criticism of Ecuador, the country developed a set of proposals to “reform” the Commission. Prominent in this package were reduction in funding (and hence the work) of the Special Rapporteur and elimination of his separate annual report.

Ricardo Patino

Ricardo Patino

In early 2013 Ecuador conducted a lobbying campaign in support of these proposals. Its Foreign Minister, Ricardo Patino, went on a tour of Mexico, Chile, Argentina, Brazil, Colombia, Dominican Republic, Haiti and Venezuela to promote them.  He also advocated them at a meeting of the Political Council of the Bolivarian Alliance for the Peoples of Our Americas (ALBA) [1] and at a March 11th meeting in Guayaquil, Ecuador of the 24 states that were parties to the American Convention on Human Rights.[2]

The latter event was opened by a long speech by Ecuadorian President Correa, who emphasized that the Commission should have its headquarters in a state that has ratified said Convention (not Washington, D.C.); that the Commission should have its own budget provided only by state parties to the Convention (without voluntary contributions by outsiders like the U.S., Canadian and European governments and NGO’s);  that the Commission should not be “autonomous” and instead be controlled by said states parties; the abolition of the Commission’s rules authorizing its issuance of precautionary measures; having the Commission focus on general promotion of human rights, not investigating and deciding on alleged violations of human rights; and elimination of the separate annual report of the Special Rapporteur for Free Expression and instead including such a report in a comprehensive report for all of the rapporteurships.

The Ecuador meeting resulted in the Declaration of Guayaquil whereby the 24 states parties agreed that at the March 22nd meeting of the OAS General Assembly they would support the following: a group of their foreign ministers would press the U.S., Canada and other non-parties to the Convention to ratify or accede to same; the Commission would be refocused on promotion of human rights through national systems; financing of the Commission would be increased by states parties and by “neutral” others; all rapporteurships would be treated equally; an analysis of the costs of the OAS Human Rights System would be obtained; the Commission’s headquarters would be moved to a state party; and annual conferences about reforming the System would be held.

Opposition to such proposals came forward from the U.N. High Commissioner for Human Rights, Navi Pillay, who urged the OAS members “to strengthen its exemplary human rights system, by promoting universal access for citizens . . ., respecting the Commission’s autonomy to progressively improve its policy and practices in response to the needs of victims and concerns of member states, and providing the necessary resources [to the System].” Similar concerns were voiced by Amnesty International, Human Rights Watch, the Committee to Protect Journalists, Freedom House, a group of 98 prominent Latin Americans and a coalition of 700 hemispheric human rights organizations.

Another opponent of Ecuador’s campaign was Cesar Gaviria Trujillo, a former president of Colombia and past secretary general of the OAS. He said that the so called “reforms” of the Commission put forward by Ecuador would “severely weaken the [C]omission and make it easier for governments to ignore basic rights and limit free speech.” They would “drastically curtail [the Commission's] autonomy” and put a “financial stranglehold” on its operations, including a “devastating impact” on the Special Rapporteur for Freedom of Expression. [3]

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General

Jose Miguel Insulza, OAS Secretary General

In opening remarks that day, the OAS Secretary General, Jose Miguel Insulza from Chile, stressed that the autonomy of the System needed to be maintained. He also said that strengthening some of the Commission’s rapporteurships “cannot mean that others are weakened” and that the Special Rapporteurship on Freedom of Expression should be strengthened “with a program of ample defense of [such] freedom . . . . ” This would include “issues relating to the curtailment of that freedom by public authorities . . .  as well as the threats and crimes to which journalists and the social media are increasingly subjected in our region and the obligation of states to protect them.”

William J. Burns, U.S. Deputy Secretary of State

William J. Burns, U.S. Deputy Secretary of State

Similar remarks were made by U.S. Deputy Secretary of State, William J. Burns. He noted that even though the U.S. was not a party to the American Convention on Human Rights, the U.S. still collaborates with the Commission when it challenges the U.S. on such issues as the death penalty, the human rights of migrants and children and the status of detainees at Guantanamo Bay, Cuba. He added, “We must be vigilant against efforts to weaken the Commission under the guise of reform. [Such efforts] . . . seek to undermine the Commission’s ability to hold governments accountable when they erode democratic checks and balances and concentrate power through illiberal manipulation of democratic processes.”

Ecuadorian Foreign Minister Patino in his remarks accused the opposition and the media of distorting his government’s proposals. He also accused the Commission of improperly assuming the power to issue precautionary measures. Its decisions were independent, he said, but the Commission was not autonomous. He rhetorically asked, the Commission is autonomous and independent of whom? Sotto voce, a Spanish journalist answered, “You,” causing laughter by those around the journalist.

The resolution adopted by acclamation at the midnight conclusion of the March 22nd meeting already has been discussed. It clearly did not adopt all of the items in Ecuador’s package.

This resolution emerged after a long day in which the U.S., Canada, Mexico, Colombia, Costa Rica, Panama and Chile lead the opposition to the proposals from Ecuador, Bolivia, Venezuela and Nicaragua. A Human Rights Watch observer said, “It was a resounding victory for the Commission, and a major defeat for the Venezuela-Ecuador bloc. It became evident that [the latter] . . . were totally isolated, without the support they were expecting from other countries.”

Towards the end of the meeting Ecuador and Bolivia threatened to withdraw from the Commission and leave the meeting. To avoid such a rupture, Argentina offered a face-saving amendment to the resolution about the OAS’ Permanent Council continuing the dialogue on the “core aspects for strengthening” the System, which Ecuador and the other ALBA countries ultimately accepted.

Conclusion

Afterwards Ecuador’s Foreign Minister tried to whitewash his country’s defeat by saying that the resolution accepted its proposal to continue the debate in the future. Before the next meeting of the OAS General Assembly in June 2014, the Foreign Minister said that there would be another meeting of the states parties to the American Convention like the one on March 11th in Guayaquil to discuss these issues. He also hinted at Ecuador’s possible withdrawal from the OAS Commission by saying there was an agreement being negotiated to create a Human Rights Commission of the Union of South American Nations (UNASUR).

Unless there are unexpected changes in regimes or policies in this Hemisphere over the next 14 months, I do not expect Ecuador and its allies will be successful at the June 2014 OAS meeting in gaining acceptance of its proposals to weaken the Inter-American Commission.[4] We will then see if this small group will leave that Commission and form its own, more limited, human rights system.

[1] ALBA is an alternative to the U.S.-sponsored Free Trade Area of the Americas. differing from the latter in that it advocates a socially-oriented trade block rather than one strictly based on the logic of deregulated profit maximization. The only members of ALBA are Ecuador, Bolivia, Venezuela, Nicaragua and three small Caribbean states (Antigua and Barbuda, Dominica and Saint Vincent and the Grenadines.

[2]  This campaign is discussed in press releases from Ecuador’s Foreign Minister.

[3] Such a limitation on financing undoubtedly would result in a reduction of such funding and thus on the work of the Commission.

[4]  I assume that Ecuador has another burden to overcome in attempting to win support for its “reform” proposals. Its credibility within the OAS, I suspect, has been adversely affected by its recent exaggerated, alarmist call for an OAS Consultative Meeting of Foreign Ministers over the alleged United Kingdom threat to invade Ecuador’s London Embassy because of its providing diplomatic asylum in that Embassy to Julian Assange.

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Cuban Blogger Obtains Cuban Passport and Plans Trip to Latin America, North America and Europe

February 6, 2013

YoaniSanchez

From her home in Havana, Cuba, Yoani Sanchez has been courageously blogging her critical comments on many aspects of life in her country as noted in a prior post.

In January 2013, under Cuban’s new law granting Cubans increased ability to obtain passports, she received her Cuban passport. She was overjoyed by this development after she had been denied a passport 20 times over the last five years.

Upon receiving the great news that she would obtain a passport, she bravely said in her blog:

  • She intends to “continue ‘pushing the limits’ of reform, to experience first hand how far the willingness to change really goes. To transcend national frontiers I will make no concessions. If the Yoani Sánchez that I am cannot travel, I am not going to metamorphose myself into someone else to do it. Nor, once abroad, will I disguise my opinions so they will let me ‘leave again’ or to please certain ears, nor will I take refuge in silence about that for which they can refuse to let me return. I will say what I think of my country and of the absence of freedoms we Cubans suffer. No passport will function as a gag for me, no trip as bait.”
  • “These particulars clarified, I am preparing the itinerary for my stay outside of Cuba. I hope to be able to participate in numerous events that will help me grow professionally and civically, to answer questions, to clarify details of the smear campaigns that have been launched against me… and in my absence. I will visit those places that once invited me, when the will of a few wouldn’t let me come; I will navigate the Internet like one obsessed, and once again climb mountains I haven’t seen for nearly ten years. But what I am most passionate about is that I am going to meet many of you, my readers. I have the first symptoms of this anxiety; the butterflies in my stomach provoked by the proximity of the unknown, and the waking up in the middle of the night asking myself, what will you look like, sound like? And me? Will I be as you imagine me?”

On February 17th she plans a worldwide tour visiting Latin American (Brazil, Argentina, Chile, Peru, Colombia and Mexico), North America (U.S. and Canada) and Europe (Italy, Czech Republic, Poland, Switzerland and Germany).

I pray that there will not be any last minute move by the Cuban government to block her leaving the island. I look forward to her comments on Cuba during her visits to these countries.

Yoani, congratulations and God Speed on your journey!

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Positive Developments for Improved U.S.-Cuba Relations

September 7, 2012

Two recent developments implicitly have endorsed my strong suggestion for the U.S. to rescind its designation of Cuba as a “State Sponsor of Terrorism” and to seek reconciliation with Cuba.

Colombia-FARC Negotiations

President Juan Manuel Santos

Over the last week the President of Colombia, Juan Manuel Santos, has announced that this October his government will enter into new negotiations with the Revolutionary Armed Forces of Colombia (FARC) seeking to end their long civil war.

Santos said that holding such talks is well worth the risk of failure because an end to the conflict would not only would end bloodletting, but also bring a “peace dividend” of up to 2% additional economic growth a year to the country’s economy.

The initial negotiations will take place in Norway and then move to Havana, Cuba. The President said that support for such negotiations by Venezuela and Cuba has been crucial in helping the two sides to reach agreement on conducting the negotiations.

Cuba’s role in this positive development for Colombia and the whole western hemisphere shows the absurdity of the U.S. designation of Cuba as a “State Sponsor of Terrorism” on the ground, in part, that some members of the FARC have been living in Cuba.

Former President Carter Calls for Improved U.S.- Cuba Relations

Jimmy Carter

 

On September 6th, former President Jimmy Carter said the next U.S. president should act forcefully to improve relations with Cuba. He also called for Cuba to be removed from the U.S. State Department’s list of state sponsors of terrorism.

 

 

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A World of Refugees

March 30, 2012

As discussed in a prior post, a “refugee” under international law is “any person who owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The principal U.N. agency concerned with such refugees is the Office of the United Nations High Commissioner for Refugees (UNHCR), which was established by a December 1950 resolution of the U.N. General Assembly. Its purpose is to safeguard and protect the rights and well-being of refugees and the right to seek asylum. Over time its mandate has broadened to include internally displaced people (IDP) and stateless people. Every year it publishes detailed statistics on all of these people of concern to UNHCR.

For 2010 there were 33,924,000 people of concern to UNHCR in the following categories:

Category Number
Refugees 10,550,000
Asylum-seekers       837,000
IDP’s 17,621,000
Other   4,916,000
TOTAL 33,924,000

Nearly 80 % of these people were hosted in developing countries, including some of the poorest countries in the world while the U.S. had 271,000. The major sources of these people in 2010 were the following countries:

Country Number
Afghanistan   4,404,000
Colombia   4,128,000
Iraq   3,387,000
Democratic Repub. Congo   2,719,000
Somalia   2,257,000
Pakistan   2,199,000
Sudan   2,185,000
Other 12,645,000
TOTAL 33,924,000

The overall statistics for 2011 should be published by UNHCR in June 2012. Just recently it published its report on one part of this new set of statistics–asylum applications in 2011 in 44 industrialized countries, including the U.S. The total of new applications was 441,300, which was 20 % more than in 2010 (368,000). The 2011 level is the highest since 2003 when 505,000 asylum applications were lodged in the industrialized countries.  With an estimated 74,000 asylum applications, the U.S. was the largest single recipient of new asylum claims among the 44 industrialized countries. France was second with 51,900, followed by Germany (45,700), Italy (34,100), and Sweden (29,600).

There are many ways one may make U.S.-tax deductible financial contributions to organizations that help these people. These organizations include the following:

  • USA for UNHCR, which supports UNHCR’s humanitarian work to assist refugees around the world;
  • U.S. Committee for Refugees and Immigrants, which seeks to protect the rights and address the needs of persons in forced or voluntary migration worldwide by advancing fair and humane public policy, facilitating and providing direct professional services, and promoting the full participation of migrants in community life;
  • International Rescue Committee, which was founded at the request of Albert Einstein to offer care and assistance to refugees forced to flee from war or disaster;
  • American Refugee Committee (Minneapolis, Minnesota), which works to provide opportunities and expertise to refugees, displaced people and host communities around the world;
  • Center for Victims of Torture (Minneapolis, Minnesota), which helps torture-survivors from around the world heal and rebuild their lives;
  • Advocates for Human Rights (Minneapolis, Minnesota), which, among other things, provides pro bono attorneys for asylum-seekers;
  • Immigrant Law Center of [St. Paul] Minnesota, which provides quality immigration legal services, law-related education, and advocacy to meet the steadily increasing needs of Minnesota’s immigrant and refugee communities;

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U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism”

August 21, 2011

 

The U.S. designation of Cuba as a “state sponsor of terrorism” already has been shown to be ridiculous.[1]

Now the U.S. has done it again in the State Department’s recently released Country Reports on Terrorism 2010.[2] The following is the complete text of the U.S. “rationale” for so designating Cuba:

  • “Overview: Designated as a State Sponsor of Terrorism in 1982, the Government of Cuba maintained a public stance against terrorism and terrorist financing in 2010, but there was no evidence that it had severed ties with elements from the Revolutionary Armed Forces of Colombia (FARC) and recent media reports indicate some current and former members of the Basque Fatherland and Liberty (ETA) continue to reside in Cuba. Available information suggested that the Cuban government maintained limited contact with FARC members, but there was no evidence of direct financial or ongoing material support. In March, the Cuban government allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members.
  • Cuba continued to denounce U.S. counterterrorism efforts throughout the world, portraying them as a pretext to extend U.S. influence and power.
  • Cuba has been used as a transit point by third-country nationals looking to enter illegally into the United State. The Government of Cuba is aware of the border integrity and transnational security concerns posed by such transit and investigated third country migrant smuggling and related criminal activities. In November, the government allowed representatives of the Transportation Security Administration to conduct a series of airport security visits throughout the island.
  • Legislation and Law Enforcement: Cuba did not pass new counterterrorism legislation in 2010. The Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba. In July, Venezuela extradited Salvadoran national Francisco Antonio Chavez Abarca to Cuba for his alleged role in a number of hotel and tourist location bombings in the mid to late 1990s. In December, a Cuban court convicted Chavez Abarca on terrorism charges and sentenced him to 30 years in prison. Also in December, the Cuban Supreme Court commuted the death sentences of two Salvadorans, René Cruz León and Otto René Rodríguez Llerena, who had been convicted of terrorism, and sentenced them both to 30 years.
  • Regional and International Cooperation: Cuba did not sponsor counterterrorism initiatives or participate in regional or global operations against terrorists in 2010.”

One of the implicit factual predicates for the most recent designation of Cuba as a “state sponsor of terrorism” is true: FARC and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these two organizations? This report itself indicates that Cuba has done practically nothing with or for the FARC or ETA. The report states, “the Cuban government maintained limited contact with FARC members” and “there was no evidence of direct financial or ongoing material support.” (Emphasis added.) In addition, the report says, “the Cuban government allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members.”

The most recent report states “some current and former members of . . . (ETA) continue to reside in Cuba.” But the report does not say how many. Nor does it state the particulars of their residence in Cuba. Moreover, in last year’s report, the State Department conceded that some of these FARC and ETA members were in Cuba to participate in peace negotiations with the governments of Columbia and Spain.

Other qualifications to this basis for the “state sponsor of terrorism” designation were made in a prior  State Department  annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.”  Fidel “also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[3]

Furthermore, former President Jimmy Carter while visiting Cuba in March 2011 had a meeting with the Spanish and Colombian Ambassadors to Cuba. The two Ambassadors said “they were not concerned about the presence of members of FARC, ETA, and ELN [another Colombian rebel group] in Cuba. Indeed, they maintained that this enhances their ability to deal more effectively with these groups. In fact, ETA members are there at the request of the Spanish government.”[4]

The second basis for the most recent designation is “Cuba continued to denounce U.S. counterterrorism efforts throughout the world, portraying them as a pretext to extend U.S. influence and power.” From my following Cuba news over the last year, this is a fair assessment, in my opinion, of the Cuban government’s public statements about U.S. foreign policy. But Cuba is a sovereign nation. It has a right to express its views of U.S. policies and actions. This does not amount to Cuba or any other country’s  being a “state sponsor of terrorism.”

The third basis for the most recent designation is Cuba’s allegedly being “used as a transit point by third-country nationals looking to enter illegally into the United States.” I do not know if this is true, but even if it is, Cuba is hardly unique in the Western Hemisphere for this phenomenon. And the U.S. report admits that this last year Cuba “allowed representatives of the [TSA] . . .  to conduct a series of airport security visits throughout the island.”

The fourth basis for the most recent designation is Cuba’s not adopting new counterterrorism legislation in 2010 and not sponsoring counterterrorism initiatives or participating in regional or global operations against terrorists in 2010. Again, I do not know if this is true, but even if it is, it does not justify the designation. Moreover, the report undermines this purported basis for the designation with its admission that the “Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba.”

In short, the U.S. has no legitimate basis for designating Cuba as a “state sponsor of terrorism.”[5]

[1] See Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011).

[2] U.S. Dep’t of State, Country Reports on Terrorism 2010 (Aug. 19, 2011), http://www.state.gov/s/ct/rls/crt/2010/index.htm; DeYoung, Terorrism report arrives with a whimper, Wash. Post (Aug. 19, 2011). The Cuban government immediately denounced this report, saying Cuba had an “unblemished” record of fighting terrorism. (Assoc. Press, Cuba Rejects Continued Inclusion on US Terror List, N.Y. Times (Aug. 20, 2011).)

[3]  U.S. Dep’t of State, Country Reports on Terrorism 2008, ch. 3 (April 30, 2009), http://www.state.gov/s/ct/rls/crt/2008/122436.htm.

[4]  The Carter Center, Trip Report by Former U.S. President Jimmy Carter to Cuba, March 28-30, 2011 (April 1, 2011), http://www.cartercenter.org/news/trip_reports/cuba-march2011.html.

[5]  Last year the Council on Foreign Relations basically came to the same conclusion. (Council on Foreign Relations, State Sponsors: Cuba (March 23, 2010), http://www.cfr.org/cuba/state-sponsors-cuba/p9359.)This July the U.S. Congressional Research Service reviewed the arguments, pro and con, for the designation of Cuba as a “state sponsor of terrorism.” It did not come to a conclusion as to whether the designation was justified, but it does not rebut my analysis. (See Congressional Research Service, Cuba: Issues for the 112th Congress (July 15, 2011), http://www.fas.org/sgp/crs/row/R41617.pdf.

 

 

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Becoming a Pro Bono Asylum Lawyer

May 24, 2011

Because U.S. immigration law was in the background of the Sanctuary Movement case in which I was involved in the mid-1980′s,[1] I sought to obtain some knowledge of this area of law by taking a training course in asylum law from a Minneapolis NGO–Advocates for Human Rights.[2]

I learned that there is a legitimate claim for asylum under U.S. and international law if an alien establishes that he or she is a “refugee,” i.e., he or she has been persecuted or has a “well-founded fear of [future] persecution [in his or her home country] on account of race, religion, nationality, membership in a particular social group or political opinion.”[3]

I then volunteered to be a pro bono (no legal fees) lawyer for Jorge, a young Salvadoran asylum seeker, and started to learn about his country. He had participated in demonstrations against his government at the national university in San Salvador and feared he would be persecuted for his political opinions by the government if he returned to his country. With the aid of an experienced immigration lawyer, I tried his case before an immigration judge who denied his application, which was typical for the time. We immediately filed an appeal to the Board of Immigration Appeals, and under the law at that time he had legal permission to remain and work in the U.S. while the appeal was pending.

In 1988 I volunteered to take another pro bono Salvadoran asylum case. My client had a middle class background. He had held a position in the Salvadoran government and had publicly protested about corruption in her military forces. As a consequence, he was imprisoned and severely tortured in El Salvador, and one of the reasons he came to Minnesota was to receive treatment at our Center for the Treatment of Victims of Torture.[4] He had been persecuted, and he and members of his family feared future persecution by the Salvadoran military for their political opinions. He and his family members subsequently were granted asylum.

I was now on my way to becoming a pro bono asylum lawyer.

Thereafter I was a lawyer for successful asylum applicants from Somalia, Afghanistan, Burma and Colombia. (Later, in 2002, I became an Adjunct Professor at the University of Minnesota Law School, where I taught refugee and asylum law as part of an international human rights course.)

The asylum work enabled me to get to know, and to help, interesting, brave people. I also learned a lot about conditions in these countries. In the process, I was weaned away from accepting what our government said about conditions in other countries at face value and from avoiding making my own judgments about those questions because there was no way that I could know as much as our government knew. As an asylum lawyer I had to investigate conditions in these other countries and come to my own conclusions on such issues and then advocate for individuals as to why they had well-founded fears of persecution (death, physical harm, imprisonment) due to their political opinions or other grounds protected by refugee law.

Moreover, the Sanctuary Movement case and my pro bono asylum work liberated me from the narrow vision and focus of a practicing lawyer concentrating on the laborious development of detailed factual records and legal analysis and arguments in the succession of individual cases. In this prior life I had little time and inclination to be concerned about, or interested in, broader concepts of law or the plight of people around the world who lack a trustworthy legal system to protect them from assassinations, “disappearances,” torture or even mere injustice. To the extent I thought about such things at all, I regarded international human rights as touchy-feely mush that did not qualify for the important “real world” things that corporate lawyers like myself were concerned about.

I also was liberated from the notion that was fostered by the life of a corporate litigator in our secular society that churches and religious people rarely had major impact on our lives in the U.S.

As a result, I often refer to this experience as El Salvador’s liberation of an American lawyer.[5]

[1]  See Post: The Sanctuary Movement Case (May 22, 2011).

[2]  Advocates for Human Rights, http://www.theadvocatesforhumanrights.org/. See Post: Two Women “Shakers” Rock Minneapolis Dinner (May 20, 2011).

[3]  E.g., David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 15 (4th ed. 2009); Convention [Treaty] Relating to the Status of Refugees, 189 U.N.T.S. 137; Protocol of 1967 Relating to the Status of Refugees, 606 U.N.T.S. 267; U.N. High Commissioner for Refugees, http://www.unhcr.org/cgi-bin/texis/vtx/home; Refugee Act of 1980, 8 U.S.C. § 1101 (a)(42).

[4]  Center for Victims of Torture, http://www.cvt.org/index.php.

[5]  Krohnke, And Then There Was Light, Minnesota’s Journal of Law & Politics, at 10 (Jan. 1992); Krohnke, The Liberation of a Corporate Lawyer, LXXXI Am. Oxonian 146 (1994).

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The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism”

May 20, 2011

The U.S. State Department, pursuant to legislative authority, annually identifies countries that have “repeatedly provided support for acts of international terrorism” and designates them as “state sponsors of terrorism.”[1] The U.S. currently designates the following four countries as “state sponsors of terrorism:” Cuba, Iran, Sudan and Syria.[2] Note that Libya and North Korea, which were previously on the list, are no longer present; these are two stories for others to pursue.

The following is the complete text of the State Department’s rationale for its most recent designation of Cuba:[3]

  • “The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates, while at the same time remaining critical of the U.S. approach to combating international terrorism. Although Cuba no longer supports armed struggle in Latin America and other parts of the world, the Government of Cuba continued to provide physical safe haven and ideological support to members of three terrorist organizations that are designated as Foreign Terrorist Organizations by the United States.”
  • “The Government of Cuba has long assisted members of the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and Spain’s Basque Homeland and Freedom Organization (ETA), some having arrived in Cuba in connection with peace negotiations with the governments of Colombia and Spain. There was no evidence of direct financial support for terrorist organizations by Cuba in 2009, though it continued to provide safe haven to members of the FARC, ELN, and ETA, providing them with living, logistical, and medical support.”
  • “Cuba cooperated with the United States on a limited number of law enforcement matters. However, the Cuban government continued to permit U.S. fugitives to live legally in Cuba. These U.S. fugitives include convicted murderers as well as numerous hijackers. Cuba permitted one such fugitive, hijacker Luis Armando Peña Soltren, to voluntarily depart Cuba; Peña Soltren was arrested upon his arrival in the United States in October.”
  • “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.”[4]

One of the factual predicates for the designation of Cuba as a “state sponsor of terrorism” is true: FARC, ELN and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these three organizations? It has provided “physical safe haven and ideological support to [an unspecified number of their] members.” How many members? What were the particulars of the safe haven?  We are not told other than “living, logistical, and medical support.” And some of these members, the State Department concedes, were in Cuba to participate in peace negotiations with the governments of Columbia and Spain. Moreover, by the State Department’s own admission, there “was no evidence of direct financial support [by Cuba] for [these three] . . . organizations in 2009.”

Further qualifications to this basis for the designation were made in the State Department’s prior annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.”  Fidel  ”also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[5]

The other factual predicate for the most recent designation, I submit, is outright insufficient. Cuba, the State Department says, has continued to permit an unspecified number of U.S. fugitives (“convicted murderers and numerous hijackers”) to live legally in Cuba. Even if true, it is difficult to see how this is support of terrorism. Moreover, we are not told how many such fugitives there are and the circumstances of their cases. The State Department does not even call them “terrorists.” Again, the State Department’s prior annual antiterrorism report on Cuba provides details further undermining this charge.  It stated, “The Cuban government continued to permit some U.S. fugitives—including members of U.S. militant groups such as the Boricua Popular, or Macheteros, and the Black Liberation Army to live legally in Cuba. In keeping with its public declaration, the [Cuban] government has not provided safe haven to any new U.S. fugitives wanted for terrorism since 2006.”[6]

The balance of the State Department’s most recent “rationale” is, in fact, complimentary of Cuba. “”The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.” “Cuba no longer supports armed struggle in Latin America and        other parts of the world.” “Cuba cooperated with the United States on a limited number of law enforcement matters.” “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.” Another complimentary comment was made in the prior annual report:  there is “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba.”[7]

The designation of Cuba as a “state sponsor of terrorism” has been reviewed by the Congressional Research Service, which said in 2006: “Cuba was first designated a state sponsor of terrorism in 1982. Although it has ratified all 12      counterterrorism conventions, it has remained opposed  to the U.S. global war on terrorism. The CIA judged in August 2003 that ‘We have no credible evidence, however, that the Cuban     government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.’”[8]

Some prior U.S. antiterrorism reports talked about Cuba’s alleged weapons of mass destruction program, but note that there is not any mention of such an alleged program in the most recent report. This canard was also rebutted by the Congressional Research Service: ”The Administration’s assertions concerning Cuba’s WMD programs, which some observers dispute, focus on limited biological weapons research and development. Construction at the Juragua nuclear facility (two incomplete Russian nuclear power reactors) was indefinitely postponed in 1997.”[9]

The State Department’s best case for calling Cuba a “state sponsor of terrorism,” upon analysis, is ridiculous. The designation should be rescinded, and the U.S. and Cuba should get down to the real business of engaging in face-to-face, serious negotiations to resolve their many long-accumulated differences.

[1]  Countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism are designated pursuant to three laws: section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. (U.S. State Dep’t, Country Reports on Terrorism 2009 (Aug. 5, 2010), http://www.state.gov/s/ct/rls/crt/2009/index.htm.) Such designation results in the following sanctions by the U.S.: (1) a ban on arms-related exports and sales; (2) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism; (3) prohibitions on economic assistance; and (4) imposition of miscellaneous financial and other restrictions.

[2]  Id.

[3]  Cuba is the oldest member of the list; it has been on this list since January 1, 1982. Id.

[4]  Id.

[5]  U.S. Dep’t of State, Country Reports on Terrorism 2008, ch. 3 (April 30, 2009), http://www.state.gov/s/ct/rls/crt/2008/122436.htm.

6]  Id.

[7]  Id.

[8] CRS, Globalizing Cooperative Threat Reduction: A Survey of Options (Oct. 5, 2006), http://fpc.state.gov/documents/organization/74901.pdf. See also CRS, Cuba and the State Sponsors of Terrorism List (May 13, 2005), http://www.fas.org/sgp/crs/terror/RL32251.pdf.

[9]  Id.

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The International Criminal Court: Investigations and Prosecutions

April 28, 2011

All of the ICC’s initial six investigations come from Africa.

Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.[1]

Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.[2]

Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)

In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.[3]

As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop any “investigation or prosecution” by the ICC  for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council.[4] This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.

The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”[5]

Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied. [6] Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.[7]

On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.

Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.[8]

The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.

The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.

[3] ICC Press Release, Pre-Trial Chamber I declines to confirm the charges against Bahar Idriss Abu Garda (Feb. 8, 2010), http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr495?lan=en-GB.

[4]  See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.

[5] U.N. Security Council, 6491st meeting (Feb. 26, 2011); U.N. Security Council, Resolution 1970 (2011)  ¶¶ 4-8 (Feb. 26, 2011).

[6] ICC, Statement by the Office of the Prosecutor on situation in Libya (Feb. 28, 2011).

[7]  ICC, ICC Prosecutor to open an investigation in Libya (March 2, 2011).

[8]  ICC, Office of the Prosecutor, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Lauria, Court Orders Probe of Afghan Attacks, Wall St. J., Sept. 10, 2009; ICC Office of Prosecutor, Letter to Deputy High Commissioner for Human Rights (Jan. 12, 2010) (alleged crimes during the conflict in Gaza in December 2008 and January 2009), http://www2.icc-cpi.int/NR/rdonlyres/FF55CC8D-3E63-4D3F-B502-1DB2BC4D45FF/281439/LettertoUNHC1.pdf; ICC Office of the Prosecutor, ICC Prosecutor confirms situation in Guinea under examination (Oct. 14,  2009), http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Guinea.

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