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Latest U.S. Report on Human Rights Around the World

April 24, 2013

On Friday (April 19th), the U.S. Department of State released its latest annual Country Reports on Human Rights Practices.[1]

In his Preface, Secretary of State John F. Kerry said, “It is in our interest to promote the universal rights of all persons. Governments that respect human rights are more peaceful and more prosperous. They are better neighbors, stronger allies, and better economic partners. Governments that enforce safe workplaces, prohibit exploitative child and forced labor, and educate their citizens create a more level playing field and broader customer base for the global marketplace. Conversely, governments that threaten regional and global peace, from Iran to North Korea, are also egregious human rights abusers, with citizens trapped in the grip of domestic repression, economic deprivation, and international isolation.”

Therefore, Kerry continued,” we advocate around the world for governments to adopt policies and practices that respect human rights regardless of ethnicity, religion, gender, race, sexual orientation, or disability; that allow for and honor the results of free and fair elections; that ensure safe and healthy workplaces; and that respect peaceful protests and other forms of dissent.”

In so doing, Kerry acknowledged that “from our own experience [we know] that the work of building a more perfect union – a sustainable and durable democracy – will never be complete.”

The Introduction to the Report highlighted these five developments from 2012.

Shrinking space for civil society activism around the world. Active participation of civil society in determining policies for the society is an important part of human rights. Yet in 2012, many governments “continued to repress or attack the means by which individuals have the ability to come together, air their views, and put forward their own proposals.” Mentioned specifically in this regard were Iran, Venezuela, Russia, Egypt, Bangladesh and China. [2]
The ongoing struggle by people in the Middle East and North Africa for democratic change. Although there were some encouraging changes in this region, there also was “erosion of protections for civil society, sexual violence against women, violence against and increased marginalization of members of religious minorities, and escalating human rights violations.” This was most pronounced in Syria, but significant problems in this regard were seen in Bahrain and Egypt.
Steps toward emerging democracy and a tentative opening for civil society in Burma. In 2012 Burma “continued to take significant steps in a historic transition toward democracy.” These changes are “the result of hard work by the Burmese people and sustained U.S. and international pressure to reform.” This transition, however, is not yet complete. Much work remains to be done.[3]
The game-changing nature of information and communication technologies, in the face of increased suppression of traditional media and freedom of expression. New technologies have made information more widely available throughout the world. Yet some governments seek to stop the free press. The world-wide number of journalists killed or imprisoned increased. Some governments used counter-terrorism as a “pretext for suppressing freedom of expression.” Others endeavored to restrict internet freedom. Ecuador was cited as an example of a state where the president publicly criticized specific journalists and encouraged lawsuits to be brought against them, where a ban was instituted on press coverage favoring one candidate, philosophy or political theory and where the government used legal pretexts to harass and close several media outlets.[4]
The continued marginalization of and violence against members of vulnerable groups. Too many governments “continue to persecute, or allow the persecution of, members of religious and ethnic minorities; women; lesbian, gay, bisexual and transgender (LGBT) people; people with disabilities; migrants; and members of other vulnerable populations, including tribal communities.” Anti-Semitism in the Middle East, Europe and Latin America was specifically mentioned as a problem.

These reports have been prepared by the State Department pursuant to a 1961 federal statute. Since then other federal statutes require U.S. foreign and trade policy to take into account countries’ human rights and worker rights performance.

Since 1976 a Coordinator of Human Rights (later upgraded to an Assistant Secretary) in the Department of State has the overall responsibility for preparing these reports based upon information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations, published reports, foreign government officials, jurists, the armed forces, journalists, human rights monitors, academics, and labor activists.

[1] News of the Report in the U.S. media has been virtually nonexistent. Here is the New York Times article on the Report.

[2] On April 21st China responded to the U.S. criticism with “The Human Rights Record of the United States in 2012.” This year, the Chinese report focused on U.S. gun crime, citing “astonishing casualties”; growing poverty in the U.S. and a wide wealth gap; and America’s overseas wars. It also singled out what it said was low voter participation in U.S. elections and the detention of terrorism suspects in Guantánamo.

[3] Similar recent reports about Burma come from Human Rights Watch, Former South African Archbishop Desmond Tutu and a Burmese Buddhist. On the other hand, the government continues to declare amnesties and release political prisoners, and we continue to be inspired by Aung San Suu Kyi’s, whose acceptance in 2012 of her Nobel Peace Prize of 1991 was the subject of an earlier post.

[4] Ecuador’s wide-ranging measures to squelch hostile journalism have been the subject of persistent and detailed criticism by the Inter-American Commission on Human Rights, and as discussed in a prior post Ecuador in retaliation has mounted, and continues to mount, a campaign to try to weaken the Commission and thereby its criticism of Ecuador.

Tags:Anti-Semitism, Bangladesh, Burma, China, Desmond Tutu, Ecuador, Egypt, human rights, Human Rights Watch, Inter-American Commission on Human Rights, Iran, John F. Kerry, Russia, Syria, U.S. Department of State, Venezuela
Posted in History, Law, Other countries, Politics | Leave a Comment »

U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

April 18, 2013

On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS),[1] which provides that the U.S. district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].”[2]

The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.[3]

The Court, however, differed, 5 to 4, on the rationale for this conclusion.

The Majority’s Rationale

The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”[4]

This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:

The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”

In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”

Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.

Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.

The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . . onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”

Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”

Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . . [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.

The Minority’s Rationale

The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.

Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.

Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”

On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.

Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer, is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”

Conclusion

The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.[5]

I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.

Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.

I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights. The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.

Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.

Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.

[1] The New York Times and the Washington Post obviously covered this decision. The Times editorial board criticized the decision while the Wall Street Journal reached the opposite conclusion.

[2] Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.

[3] The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.

[4] The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”

[5] For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.

Tags:Alien Tort Statute (ATS), Anthony Kennedy, Antonin Scalia, Clarence Thomas, Ernesto Zedillo, extraterritoriality, human rights, Human Rights Violators and War Crimes Center, Intelligence Reform and Terrorism Prevention Act, John Roberts, Justice Elena Kagan, Kiobel, Magnitsky Act, Nigeria, Ruth Bader Ginsburg, Samuel Alito, Sonia Sotomayor, Steven Breyer, Torture Victims Protection Act (TVPA)
Posted in History, Law, Politics | Leave a Comment »

Former Mexican President Tells U.S. Court To Ignore Mexican Court Decision

April 17, 2013

This blog has been following the civil lawsuit for money damages in U.S. federal court against Ernesto Zedillo, the former President of Mexico, for his alleged involvement in a 1977 massacre in a Mexican village and his claim for immunity from same.

That request for immunity has prompted another lawsuit, this in a Mexican court, over the legality of the request under Mexican law. In early March 2013 the Mexican court decided that the request for such immunity by the Mexican Ambassador to the U.S. State Department was illegal, and on March 28th that Mexican court decision was filed with the U.S. court.

The latest move in this duel between the two court systems took place on April 12th when Mr. Zedillo told the U.S. court that it should just ignore the Mexican court.

That was the bottom line in the Defendant’s Response to Plaintiffs’ Notice Regarding Mexican Trial Court Decision that was filed that day in the U.S. District Court for the District of Connecticut.

Although Mr. Zedillo in this document noted that his pending appeal of the Mexican court decision had been joined by the current Mexican President and Secretary of Foreign Affairs, that decision is asserted to be “irrelevant” to the U.S. case, and the U.S. court should “promptly and finally” dismiss the U.S. case. This conclusion purportedly follows from these premises:

The U.S. Department of State decides whether immunity for a foreign official advances U.S. interests and U.S. law.
The U.S. Department of State does not judge whether a foreign nation’s request for immunity for one of its former officials is in accordance with that country’s laws.
The U.S. Department of State already has decided that immunity in the U.S. case for Mr. Zedillo is in accordance with U.S. law and foreign policy and so advised the U.S. court.
Under U.S. law, U.S. courts are required to honor the U.S. Department of State’s decisions on immunity of former foreign officials.

Although I do not quarrel with these premises, I do not think that they support the conclusion put forward by Mr. Zedillo.

If the Mexican trial court decision is sustained on appeal in Mexico, then that should result in the Mexican government’s rescission of the earlier request for immunity by its Ambassador. That hypothetical situation, to me, looks like the case where the State Department recently refused to support immunity in a U.S. case for a former Somali official because there was no Somali government that could ask the Department for such immunity.

In any event, if I were the U.S. judge in the Zedillo case, I would postpone making any decision on immunity for Mr. Zedillo until after the Mexican case was concluded and the U.S. State Department had expressed its views on the impact of the Mexican case. Perhaps I would now ask the State Department for its views before the Mexican case had concluded, but I anticipate the Department would say it was waiting for a final judgment in the Mexican case before it expressed its views.

This blog will continue to watch for further developments in these cases.

Tags:Alien Tort Statute (ATS), Ernesto Zedillo, human rights, immunity, Mexico, Somalia, Torture Victims Protection Act (TVPA), U.S. Department of State
Posted in History, Law, Other countries, Politics | 1 Comment »

Enforcement of International Human Rights Norms with U.S. Immigration Laws

April 14, 2013

Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]

Introduction

First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . . be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]

Generals Casanova (left) and Garcia (right)

This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”

Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).

Innocente Orlando Montano

This set of provisions currently is being used with respect to another former Salvadoran military officer, Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]

Sergei Magnitsky Grave

Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]

Discussion

Vides Casanova

After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]

The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . . command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.

On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.

On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.

Jose Guillermo Garcia

In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]

On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”

The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).

Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.

Innocente Orlando Montano

In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.

On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.

Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending one of 51 months while Montano argues that is too long.

The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:

During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.

Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.

Magnitsky Act Developments

On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.

The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.

The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.

Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”

Conclusion

These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.

Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based human rights organization “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” It ”uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.”

The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.

Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.

[1] Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.

[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)

[3] The ATS (28 U.S.C.§1350) provides that U.S.”district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].” Many prior posts have discussed this statute and cases thereunder.

[4] The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.

[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.

[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . . Magnitsky, financially benefitted from the detention, abuse, or death of . . . Magnitsky, or was involved in the criminal conspiracy uncovered by . . . Magnitsky.” That presidential list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”

[7] A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.

[8] A summary of this immigration case is available on the web. Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.

Tags:Alien Tort Statute (ATS), American churchwomen, Carlos Eugenio Vides Casanova, Department of Homeland Security, Dr. Juan Romagoza Arce, Dr. Terry Karl, El Salvador, human rights, Human Rights Violators and War Crimes Center, Ignacio Ellacuría, Immigration and Customs Enforcement (ICE), Immigration and Nationality Act, Innocente Orlando Montano, Jesuits, Jose Guillermo Garcia, perjury, Robert E. White, Russia, Sergei Magnitsky, Spain, Torture Victims Protection Act (TVPA), Truth Commission for El Salvador, universal jurisdiction, University of Central America (UCA)
Posted in History, Law, Other countries, Politics | 1 Comment »

Are the International Criminal Court’s Kenyan Cases Collapsing?

April 9, 2013

Uhuru Kenyatta

William Ruto

Today before a cheering crowd of 60,000 in a Nairobi stadium, Uhuru Kenyatta and William Ruto were inaugurated as the new president and deputy president of Kenya. In his inaugural speech Kenyatta made a veiled reference to the pending charges against him and other Kenyans in the International Criminal Court (ICC) when he said, ““Kenya will strive to uphold our international obligations” but that these obligations must be based on “mutual respect.”

Also in attendance was Uganda’s president, Yoweri Museveni, who told the crowd he applauded Kenyans for rejecting the “blackmail” of the ICC, which was steered by “arrogant actors” to “install leaders of their choice in Africa and eliminate those they don’t like.”

As discussed in a prior post, both Kenyatta and Ruto and another Kenyan (Joseph Arap Sang) are scheduled to go to trial in the next three months before the ICC in the Hague on charges of crimes against humanity in connection with violent deaths after the Kenyan election in 2007.

Now there are rumblings that suggest these three cases are collapsing not long after three other Kenyan cases had been terminated. [1]

The key case is Kenyatta’s. The Office of the Prosecutor (TOP) recently informed the Court that four of the 12 witnesses against Kenyatta have recanted their testimony because of security threats and fears of retaliation against their families.[2]

In response Kenyatta’s lawyers have asserted that the charges against their client were based on false evidence and have asked the ICC’s Trial Chamber to refer the case to the Pre-Trial Chamber for reconsideration of its January 2012 decision confirming the charges.

On April 5th the ICC Prosecutor issued a public statement deploring “the recent stream of sensationalist reports in the Kenyan media, on the level of witness cooperation [in these cases]. Witness protection remains one of our highest priorities. The Office will therefore not be drawn into any public speculation on the status of witnesses. The courage and integrity of witnesses are essential to the Court’s determination of the truth, which is at the heart of justice. It is in the interest of all concerned to allow justice to take its course.”

A long-time observer of Kenya has said that the Kenyan Supreme Court’s March 30th validation of the election of Kenyatta “secured Kenya’s place as a shining international symbol of impunity” and that the ICC “case against Kenyatta now seems doomed.” According to this observer, witness intimidation and bribery “will only escalate, and it’s hard to see any Kenyan being brave — or foolhardy — enough now to take the witness stand against a head of state.”

This observer even thought “the failure of the Kenyatta case may be the first chime of the death knell for the I.C.C.”

We will have to stay tuned to see what happens in these cases. For this supporter of the Court, the outlook is not bright.

[1] The Court’s Pre-Trial Chamber has refused to confirm charges against two other Kenyans (Henry Kiprono Kosgey and Mohammed Hussein Ali), and in March 2013 the Office of the Prosecutor withdrew the charges against another Kenyan (Francis Kirimi Muthaura) because of problems with prosecution witnesses, including alleged bribery. These cases also were discussed in the prior post.

[2] The same problem has emerged with at least one of the witnesses against the other two defendants (Ruto and Sang).

Tags:Francis Kirimi Muthaura, Henry Kiprono Kosgey, human rights, International Criminal Court (ICC), Josua Arap Sang, Kenya, Mohammed Hussein Ali, Uganda, Uhuru Muigai Kenyatta, William Samoei Ruto
Posted in History, Law, Other countries, Politics | 1 Comment »

International Criminal Court: The U.S. and the ICC

April 3, 2013

International Criminal Court

We just reviewed the status of the investigative situations and cases of the International Criminal Court (ICC) and other ICC developments. Now we look at developments in U.S.-ICC relations.[1]

U.N. Security Council. On October 17, 2012, the U.N. Security Council had a general discussion on the promotion and strengthening of the rule of law in the maintenance of international peace and security with emphasis on the role of the ICC.

Susan Rice

U.S. Ambassador to the U.N., Susan Rice, said at that meeting that “strengthening the global system of accountability for the worst atrocities remains an important priority for the [U.S.]. President Obama has emphasized that preventing mass atrocities and genocide is a core national security interest and core moral responsibility for our nation. We are committed to bringing pressure to bear against perpetrators of atrocities, ensuring accountability for crimes committed, and prioritizing the rule of law and transitional justice in our efforts to respond to conflict.”

Rice added that the U.S. “recognize[s] that the ICC can be an important tool for accountability. We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we’ve responded positively to informal requests for assistance. We will continue working with the ICC to identify practical ways to cooperate – particularly in areas such as information sharing and witness protection – on a case-by-case basis, as consistent with U.S. policy and law.”

Another important point for Rice was the need “to improve cooperation and communication between the Security Council and the Court. For example, the Council should monitor the developments in situations it refers to the Court, since the ICC may face dangers in conducting its work. However, we must also recognize that the ICC is an independent organization. This status raises concerns about proposals to cover its expenses with UN-assessed funding.” In addition, she said, the “interests of peace, security and international criminal justice are best served when the Security Council and the ICC operate within their own realms but work in ways that are mutually reinforcing. We should not accept the false choice between the interests of justice and the interests of peace.”

Assembly of States Parties. The U.S. continues to participate as an observer at meetings of the Court’s governing body, the Assembly of States Parties. At its November 2012 meeting, for example, major speeches were made by U.S. Ambassador-at-Large Stephen J. Rapp of the Department of State’s Office of Global Criminal Justice and Harold Koh, who then was U.S. Department of State Legal Advisor.

Stephen Rapp

Ambassador Rapp said the U.S. had “worked diligently to promote an end to impunity” and had been “supporting the work of the ICC in each of its current cases.” He then outlined the following priorities for the Court and its supporters:

“First, it is essential that the fugitives who currently remain at large in the ICC’s cases are apprehended . . . and that the witnesses who testify and the victims who wish to participate in the proceedings are assured of their safety.” The U.S. uses “an array of tools to advance the causes of apprehension and witness protection.”
Second, “it is crucial that members of the international community continue to reinforce the legal norms and prohibitions that lead to the creation of institutions such as the ICC.” One example is the U.S. establishment of the Atrocities Prevention Board that was discussed in a prior post.
Third, “we must continue to strive to improve our system of international justice. . . . [The ICC needs] to build a solid jurisprudence, navigate challenges that arise in international cooperation, and establish legitimacy . . . as a fair and efficient criminal justice institution that makes prudent decisions in the cases it pursues, and those it declines to pursue.”
Fourth, “we all must continue to recognize that the ICC cannot and must not operate alone. States retain primacy, both legal and moral, in ensuring justice for grave crimes. Justice closer to the victims is always preferable, in a system that can account for local laws and custom, in a familiar language, and in an accessible setting. Even where the ICC does operate, tremendous work will remain to be done at the national level. . . . [The U.S.] looks forward to continuing to collaborate in promoting this crucial work.”[2]

Harold Koh

Legal Advisor Koh said the Court was “an important forum” for advancing U.S. national security and humanitarian interests. It “can help increase stability and thus decrease the need for more costly military interventions in the future.”

Koh reviewed the five stages of the historical development of international criminal justice: (1) International Criminal Justice 1.0: The Nuremberg Trials that worked to establish the principles of legitimacy, professionalism, cooperation, and legality; (2) International Criminal Justice 2.0: The Ad Hoc Tribunals; (3) International Criminal Justice 3.0: The Hybrid Tribunals; (4) International Criminal Justice 4.0: The ICC; and (5) International Criminal Justice 5.0: The Future.

After reviewing the history of U.S. relations with the ICC, Koh discussed four important issues for the Court’s future. First, it needs to continue to develop the practice of positive complementarity so that the ICC is the court of last resort with fewer cases. Second, the ICC established important precedents with its first conviction (Lubanga of the DRC) and establishment of procedures and principles for reparations for victims in that case. Third, the ICC must build up its resources and capacities; it must function in a fair and transparent manner with able and unbiased prosecutors and judges; national judicial systems must be bolstered to reduce the ICC’s burdens; it must improve cooperation with states and enhance the efficiency and effectiveness of its prosecutions; and it should be cautious about moving forward with the amendment on the crime of aggression that was adopted at the Kampala Review Conference.

Koh concluded with more general comments about the future. He said the challenge is “to build the accountability agenda of the past seventy years into a sustained ‘Smart Power Approach’ to international criminal justice that sees accountability as part of a broader approach to diplomacy, development, rule of law, and atrocities prevention.”

New U.S. Statute To Assist ICC. On January 15th, President Obama signed The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S.2318). The President said the new law “will enhance the ability of the U.S. Government to offer monetary rewards for information that leads to the arrest or conviction of foreign nationals accused by international criminal tribunals of atrocity-related crimes, and of individuals involved in transnational organized crime.” The President added, “This powerful new tool can be used to help bring to justice perpetrators of the worst crimes known to human kind. . . . We have made unmistakably clear that the United States is committed to seeing war criminals and other perpetrators of atrocities held accountable for their crimes, and today’s legislation can help us achieve that goal.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to … target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal … of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

On April 3rd this new law was used when the U.S. offered to pay up to $5 million for information leading to the arrest, transfer or conviction of four ICC fugitives: Joseph Kony, Dominic Ongwen and Okot Odhiambo of the Lord’s Resistance Army in Uganda and Sylvestre Mudacumura of the Democratic Republic of the Congo. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, Ambassador Rapp said.

[1] The website of the American Non-Governmental Coalition for the International Criminal Court (AMICC) has additional details about U.S. relations with the ICC, Congress and the ICC, U.S. law regarding the ICC, analysis and opinion about the U.S. and the ICC.

[2] As a prior post reported, Ambassador Rapp also addressed the Assembly on the subject of complementarity.

Tags:American Non-Governmental Organizations Coalition for the ICC (AMICC), Barack Obama, complementarity, Democratic Republic of Congo, Dominic Ongwen, Harold Koh, human rights, International Criminal Court (ICC), Joseph Kony, Lord's Resistance Army, Okot Odhiambo, Stephen J. Rapp, Susan Rice, Sylvestre Mudacumura, U.N. Security Council, Uganda, United States of America
Posted in History, Law, Other countries, Politics | Leave a Comment »

International Criminal Court: Other Developments

April 2, 2013

We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC). [1] Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.

Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.

To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:

During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.

On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”

At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.

In January 2013, 58 countries signed a joint statement calling for such a referral. In response at least five Security Council members voiced support for same– France, Britain, Australia, Luxembourg and South Korea. The next month, February 2013, U.N. human rights investigator Carla del Ponte said the “time has come” for the Security Council to refer war crimes in Syria to the ICC for prosecution. Similar calls for referral have come from Amnesty International and Human Rights Watch.

The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”

Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria.[2] For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”

Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.

Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.

In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis.

The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.

In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.

The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.

Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.

The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.

The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.

U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.

There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.

Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”

[1] Many posts have covered the ICC.

[2] Some prior posts have discussed possible ICC consideration of the Syrian situation (here and here).

Tags:Amnesty International, Bashar al-Assad, Carla del Ponte, Chief Prosecutor of ICC, China, complementarity, Genocide, human rights, Human Rights Watch, International Criminal Court (ICC), Israel, Navi Pillay, Omar Hassan Ahmed Al Bashir, Palestine, Russia, Stephen J. Rapp, Syria, U.N. High Commissioner for Human Rights, U.N. Human Rights Council, U.N. Security Council
Posted in History, Law, Other countries, Politics | 1 Comment »

International Criminal Court: Status of Its Situations and Cases

April 1, 2013

International Criminal Court

This post will review the current status of the eight situations (all from Africa) currently under investigation by the Office of the Prosecutor (TOP) of the International Criminal Court (ICC) and the 30 individuals that have been charged by the ICC with crimes in those situations.[1]

1. Uganda

In July 2004, pursuant to a referral by the government of Uganda, TOP opened an investigation into the situation of the Lord’s Resistance Army (LRA)in Northern Uganda. That has resulted in charges of crimes against humanity and war crimes against five individuals, four of whom remain at large: Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. The other (Raska Lukwiya) is deceased.

The hunt for Kony and other LRA leaders continues. Uganda has some 2,500 soldiers deployed around the border areas of Central African Republic (CAR) the Democratic Republic of Congo and South Sudan, where Kony and his fighters are thought to spend most of their time. The Ugandan troops are joined by 500 Congolese fighters, 500 South Sudanese and 350 CAR troops, all operating under the auspices of the African Union (AU). They have been assisted by 100 U.S. special forces. These efforts will continue despite the recent coup in the CAR.

On March 18, 2013, TOP issued a statement that LRA members will not be killed or tortured if they surrender to the ICC. All their human rights will be protected and the cases against them will be in accordance with accepted international human rights standards. They will face a fair, impartial and public justice that respects all their rights, including the right to be represented by a lawyer of their choice, and to present evidence in their defense. If convicted they will not be sentenced to death. Therefore, they should hand themselves over and face a fair justice process at the ICC or remain fugitives in full knowledge that military forces from many countries are looking for them, and they may be cornered, captured, and possibly killed or wounded in the process.

2. Democratic Republic of the Congo

In June 2004, pursuant to a referral by the government of the Democratic Republic of the Congo (DRC), TOP opened an investigation into the situation in the country since June 1, 2002. That has resulted in six cases against six individuals.

Thomas Lubanga Dyilo on March 1, 2012, was convicted of war crimes and on July 10, 2012, sentenced to 14 years imprisonment.

On July 8, 2012, the ICC issued its first decision on reparations. It decided that the potential beneficiaries are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the DRC (9/1/02–8/13/03), including family members of direct victims and individuals who intervened to help the victims or to prevent the commission of these crimes. The decision also established the following principles for reparations:

no discrimination as regards age, ethnicity or gender;
reconciling the victims of child recruitment and their families and communities in Ituri;
preserving their dignity and privacy;
taking into account the age of the victims and the sexual violence that they may have suffered; and
the need to rehabilitate the former child soldiers within their communities.

Germain Katanga went on trial (with Mathieu Ngudjolo Chui) on November 24, 2009, on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person). On February 7, 2012, evidence in the case was closed and closing arguments were heard in May 2012 by the Trial Chamber.

On November 21, 2012, the Chamber, 2 to 1, issued an order severing Mr. Chui from this case and deciding that the mode of liability of Mr. Katanga might be changed under Regulation 55(2)[2] to Article 25(3)(d) of the Statute (contributing in any other way to the commission of the crimes by a group of persons acting with a common purpose).

This proposed change (after the trial) was appealed by Mr. Katanga, and on March 27, 2013, the Appeals Chamber, 2-1, affirmed the Trial Chamber. It held that the decision was in accordance with Regulation 55(2) and did not violate the defendant’s right to a fair trial. However, it said, the Trial Chamber will have to be vigilant in its further deliberations to ensure that this right will not be infringed by further trial proceedings.

Mathieu Ngudjolo Chui , as just indicated, was tried with Mr. Katanga from November 24, 2009 through May 23, 2012 on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person), but on November 21, 2012, Mr. Chui’s charges were severed.

On December 18, 2012, the Trial Chamber issued its unanimous verdict acquitting Mr. Chui of all charges because it had not been proven beyond reasonable doubt that he was the commander of the Lendu combatants from Bedu-Ezekere during the attack against the Bogoro village on 24 February 2003. On December 21, 2012, Mr. Chui was released from detention pursuant to an order by the Appeals Chamber.

The Office of the Prosecutor has appealed that verdict.

Bosco Ntaganda has been charged with three counts of crimes against humanity and seven counts of war crimes.

On March 22, 2013, he voluntarily surrendered himself to the U.S. Embassy in Rwanda and asked to be turned over to the ICC. His decision prompted speculation as to why he did so. One theory says he was threatened by member of his own rebel group and wanted to save his own life. In any event, soon thereafter he made his initial appearance before the Court and said he was not guilty. The date for his confirmation of charges hearing was set for September 23, 2013.

Callixte Mbarushimana was charged with five counts of crimes against humanity and eight counts of war crimes, but on December 16, 2011, the Pre-Trial Chamber refused to confirm the charges, and on December 23, 2011, he was released from the Court’s custody.

Sylvestre Mudacumura on July 13, 2012, was the subject of the Pre-Trial Chamber’s arrest warrant for allegedly committing nine counts of war crimes in the DRC, including attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity. He is at large.

3. Central African Republic

On May 22, 2007, pursuant to a referral by the government of the Central African Republic (CAR), TOP opened an investigation into alleged crimes, in 2002 and 2003, in that country. In which civilians were killed and raped; and homes and stores were looted in the context of an armed conflict between the government and rebel forces.

Jean-Pierre Bemba Gombo is the only case. He is charged as a military commander, with two counts of crimes against humanity: (murder and rape) and three counts of war crimes (murder, rape and pillaging). His trial started on November 25, 2010, and is not finished.

4. Darfur/Sudan

On June 6, 2005, pursuant to a referral by the U.N. Security Council, TOP opened an investigation into the situation in Darfur, Sudan since July 1, 2002.

That has resulted in six cases involving seven individuals, the following four of whom are still at large: (i) Ahmad Muhammad Harun (20 counts of crimes against humanity and 22 counts of war crimes); (ii) Ali Muhammad Ali Abd-Al-Rahman (22 counts of crimes against humanity and 28 counts of war crimes); (iii) Omar Hassan Ahmad Al Bashir, the President of Sudan (5 counts of crimes against humanity, 2 counts of war crimes and 3 counts of genocide); and (iv) Abdel Raheem Muhammad Hussein (7 counts of crimes against humanity and 6 counts of war crimes).

Bahar Idriss Abu Garda was charged with war crimes, but in 2010, the Pre-Trial Chamber refused to confirm the charges, and rejected the Prosecutor’s application to appeal.

Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are charged with co-commission of three war crimes. Their trial is scheduled to start on May 5, 2014.

In the latest (December 2012) semi-annual report to the U.N. Security Council on this situation and cases,[3] the Chief Prosecutor said that her office would consider whether further investigations and additional arrest warrants were needed to address recent violations, including reports of thwarting humanitarian aid deliveries, attacks on African Union-United Nations Hybrid Operation in Darfur (UNAMID) peacekeepers and bombardments and attacks on civilian populations.

The Chief Prosecutor also told the Council, “The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part. There are no words to properly express the frustration of Darfur’s victims, which we share, about the lack of any meaningful progress towards arresting those indicted by the Courts.”

In response, Sudan’s representative told the Security Council that the Prosecutor’s report was flawed, saying it contained unsubstantiated allegations, and contradicted UNAMID reports. The report’s allegations of gender violence, for instance, did not provide sources, and it mistook tribal clashes for fighting between militias. Also, reported attacks on peacekeepers had in fact been committed by bandits now being pursued by Sudanese authorities. He said the Court had become a tool for “blackmail” and for violating the sovereignty of small States and was being exploited by certain political interests.

Among the other statements at the Council meeting, a U.S. diplomat said mounting violence was a grave concern, including targeted civilian attacks and denying UNAMID access to affected areas. Since UNAMID’s initial deployment in 2007, 43 peacekeepers had been killed, in attacks that could be prosecuted as war crimes. The Council should condemn any and all attacks on mission personnel. Reversing the cycle of violence required accountability for the perpetrators, he said, expressing dismay that the Sudanese Government was not cooperating with the Court, despite its obligation to do so fully. Continued impunity for crimes committed in Darfur fomented instability and sent a dangerous message that there were no consequences to attacking civilians. Welcoming the willingness of States to consider creative approaches and new tools to assist the Court, he also embraced further discussions on resolutions concerning Council referrals to the Court. [4]

5. Kenya

On March 31, 2010, the Pre-Trial Chamber, 2-1, authorized TOP to proceed with an investigation that it had proposed into the situation in Kenya between June 1, 2005 and November 26, 2009.

Uhuru Muigai Kenyatta is charged as an indirect co-perpetrator of crimes against humanity (murder, deportation or forcible transfer, rape, persecution and other inhumane acts. The charges stem from his alleged role in funding and organizing ethnic violence leading to the death of an estimated 1,200 people after the 2007 presidential election. His trial is scheduled to start on July 9, 2013.

In the meantime, on March 3, 2013, Kenyatta, who employed anti-ICC propaganda in his presidential election campaign, was narrowly elected President of Kenya, and on March 30th the country’s Supreme Court unanimously rejected a challenge to the election from his main electoral opponent. Kenyatta’s election creates an “awkward” situation, as the New York Times said, for the U.S. and other countries who need good diplomatic relations with Kenya.

William Samoei Ruto was charged with being an indirect co-perpetrator of crimes against humanity. His trial is scheduled to begin on May 28, 2013.

Joshua Arap Sang was charged with having contributed to crimes against humanity. His trial is scheduled to begin on May 28, 2013.

Henry Kiprono Kosgey was charged as an indirect co-perpetrator of crimes against humanity, but the Pre-Trial Chamber declined to confirm the charges.

Mohammed Hussein Ali was charged with crimes against humanity, but in 2012, the Pre-Trial Chamber refused to confirm the charges.

Francis Kirimi Muthaura was charged as an indirect co-perpetrator of crimes against humanity, and the re-Trial Chamber in January 2012 confirmed some of the charges. In March 2013, however, TOP filed notice to withdraw the charges because several people who may have provided important evidence regarding his actions, have died, while others are too afraid to testify for the Prosecution; the Government of Kenya failed to provide TOP with important evidence; and the key witness against him had recanted a crucial part of his evidence and had admitted he had accepted bribes.

6. Libya

On February 26, 2011, the U.N. Security Council referred the situation in Libya since February 15, 2011 to the Court. That has resulted in TOP’s charges against three individuals, one of whom died (Muammar Gaddafi) resulting in the dismissal of his case.

The other two (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) are in the custody of the Libyan Provisional Authority and have not been turned over to the Court despite negotiations to that effect.

In October 2012, Libya asked the ICC to abandon its claims against the two men because it said Libya can give them fair trials in Tripoli. In early 2013, Libyan officials told the ICC that the two men would be put on trial in Libya in May this year and would not face summary trial and execution.

In the latest (November 2012) semi-annual report to the U.N. Security Council on this situation and cases,[5] the Chief Prosecutor said both Saif Al-Islam Qadhafi and Abdullah Al-Senussi had been arrested and detained in Libya, and that the Libyan authorities had challenged the admissibility of the ICC’s case against Mr. Qadhafi and possibly of the case against Mr. Al-Senussi. She said the ICC’s Pre-Trail Chamber would decide the merits of the challenge as to whether the case should be heard at the Court or in Libya, and should the challenge ultimately succeed, TOP would monitor those proceedings and cooperate with Libya, to the extent of the mandate.Emphasizing the pressing need for complementary and mutually supportive approaches to address accountability, she encouraged international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.

A Libyan representative at the Council meeting said his Government had set out its plans for stability, reconciliation and comprehensive justice for crimes that had been committed in his country and that its investigation was already at an advanced stage in some of those cases although the Qadhafi trial had been postponed in order to allow for the most thorough possible investigation. Libya, he continued, has been cooperating with the ICC and was now awaiting the decision on the admissibility challenge in the Qadhafi case and a forthcoming similar challenge in the Al-Senussi case. He reiterated his country’s pledge to carry out all procedures in compliance with international law.

A U.S. diplomat at the Security Council urged the Libyan Government to continue its cooperation with the Court. It was an important moment for both Libya and the Court as they worked together, under their respective roles, in ensuring peace and accountability. It was critical for Libya to ensure the safety of ICC personnel on visits to the country. She added that the U.S. had endeavored to cooperate with the ICC in its efforts regarding Libya, consistent with U.S. law and policy. Impunity for all serious crimes in Libya, including gender crimes, must be avoided, and victims should be assisted. The U.S. would continue to work with the international community to assist Libyan efforts to reform its justice sector and advance human rights in the country.

7. Ivory Coast (Côte d’Ivoire)

On October 3, 2001, the Court’s Pre-Trial Chamber granted TOP request to commence an investigation into the situation in the Ivory Coast since November 28, 2010, and in February 2012 the Chamber expanded the investigation to cover the period September 19. 2002 through November 28, 2010.

Laurent Gbagbo, the former president of the country, has been charged with four counts of crimes against humanity. He was surrendered to the Court in November 2011, and his confirmation of charges hearing was held in February 2013.

Simone Gbagbo, the wife of Laurent Gbagbo, has been charged as an indirect co-perpetrator with four counts of crimes against humanity. She has not been turned over to the Court.

8, Mali

On July 13, 2012, the government of Mali referred the situation in that country since January 2012 to the ICC, which has assigned it to the Pre-Trial Chamber.

In January 2012 a rebellion began in Northern Mali, led by the National Movement for the Liberation of Azawad (MNLA). In March 2012, military officer Amadou Sanogo seized power in the country in a coup d’etat, citing the president’s failure to eliminate the rebellion. The MNLA quickly took control of the north, declaring independence as Azawad. However, Islamist groups that had helped the MNLA defeat the government, turned on the rebel group and took control of the North with the goal of implementing Sharia Law in Mali.

On January 11, 2013, the French Armed Forces intervened at the request of Sanogo’s government. On January 30th, the coordinated advance of the French and Malian troops claimed to have retaken the last remaining Islamist stronghold.

In the midst of these military engagements, on January 16, 2013, TOP announced that it formally had opened an investigation into the Situation in Mali since January of 2012. After thorough analysis it said it had found that evidence, admissibility, gravity of potential cases, and interest of justice all support the requirements to open a formal investigation into war crimes allegedly committed in Mali. Crimes alleged to have happened include murder; mutilation, cruel treatment and torture; intentionally directing attacks against protected objects; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court; pillaging; and rape. The ICC will move to investigate these alleged crimes and bring charges against individuals “who bear the greatest criminal responsibility for the most serious crimes committed.

In late January 2013, TOP warned Malian authorities to put an immediate stop to the alleged abuses and, on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. TOP reminded all parties to the on-going conflict in Mali that it has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.

Conclusion

The following summarizes the status of those charged with crimes by the Court as it nears its 11th anniversary on July 1, 2013:

Status	Number
Deceased	2
At large or not in Court custody	12
Pre-Trial: charges not confirmed	6
Pre-Trial: pending	1
Trials scheduled to start by 12/31/14	5
At trial	1
Tried and convicted	1
Tried and status in question	1
Tried and acquitted	1
*TOTAL*	30

[1] There have been many prior posts about the ICC.

[2] Regulation 55, which is titled “Authority of the Chamber to modify the legal characterization of facts,” says in part (2),”If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.” Part (3) goes on to say, “For the purposes of sub-regulation 2, the Chamber shall, in particular,ensure that the accused shall:(a) Have adequate time and facilities for the effective preparation of his or her defence [sic] in accordance with article 67, paragraph 1 (b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).”

[3] A prior post discussed the June 2012 ICC report to the Security Council on the Darfur/Sudan referral.

[4] The U.S. statement regarding Sudan/Darfur is available online.

[5] A prior post discussed the May 2012 ICC report to the Security Council on the Libyan referral.

Tags:Abdullah Al-Senussi, Bosco Ntaganda, Central African Republic, Democratic Republic of Congo, Germain Katanga, human rights, International Criminal Court (ICC), Ivory Coast, Jean-Pierre Bemba Gombo, Joseph Kony, Kenya, Laurent Gbagbo, Libya, Lord's Resistance Army, Mali, Mathieu Ngudiolo Chui, Muammar Gaddafi, Omar Hassan Ahmed Al Bashir, Saif Al-Islam Gaddafi, Sudan (Darfur), Thomas Lubanga Dyilo, U.N. Security Council, Uganda, Uhuru Muigai Kenyatta
Posted in History, Law, Other countries, Politics | 2 Comments »

Mexican Court Decision Regarding Zedillo Immunity Is Filed in U.S. Case

March 28, 2013

On March 28, 2013, the plaintiffs in the U.S. lawsuit against Ernesto Zedillo in federal court in Connecticut filed a copy of the Mexican court decision (with 108-page English translation) regarding the Mexican government’s request for immunity for the former president. The plaintiffs, however, did not ask the U.S. court for any relief as a result of the Mexican court decision. Presumably that will come later.

According to the U.S. plaintiffs’ attorneys’ summary, the Mexican court on March 6, 2013, (a) granted a writ of Amparo in favor of the plaintiffs; (b) declared that the immunity request lacked any constitutional or legal basis in Mexican law; and (c) instructed the current Mexican Ambassador to perform all official acts necessary to withdraw the immunity request, including notifying the U. S. Department of State of that withdrawal. (Pp.106-107.) The Mexican court provided the following reasons for its decision:

The immunity request violated the principle of Constitutional Supremacy set forth in Article 133 of the Political Constitution of the United Mexican States because the Ambassador of Mexico to the U.S. disregarded the international legal standard adopted by Mexico forbidding requests for head-of-state immunity allowing public officials to evade their responsibilities. (Pp. 99 – 106.)
The immunity request lacks any rationale how Mexico’s national sovereignty would be damaged by civil proceedings against a former president who no longer occupies the post of, or performs the functions of, head of state. Id. at 94– 99.
The immunity request violates the plaintiffs’ human rights of equality and nondiscrimination under the Mexican Constitution, Article 1, because the Mexican Ambassador engaged in disparate treatment pursuant to criteria of a political nature, creating a discretionary exception of impunity in favor of Zedillo, thereby preventing plaintiffs’ ability to exercise their rights to equally seek damages for the injuries suffered. Id. at 83-94.
The immunity request violates plaintiffs’ human rights set forth in the Mexican Constitution, Articles 14 and 16, as applied by the Federal Law of Administrative Procedure, because it is not properly executed with the required formalities. Id. at 78-83.
The immunity request violates plaintiffs’ human rights set forth in the Mexican Constitution, Articles 14 and 16, because the Mexican Ambassador failed to set forth or justify any jurisprudential, statutory or regulatory basis for the degree or amount of subject matter or jurisdictional authority. Id. at 70-78.

As noted in a prior post, the case in Mexico is not yet final so we will have to wait to see what additional proceedings, if any, occur there.

Tags:Alien Tort Statute (ATS), Ernesto Zedillo, human rights, immunity, Mexican Constitution, Mexico, Torture Victims Protection Act (TVPA), U.S. District Court District of Connecticut
Posted in History, Law, Other countries, Politics | 1 Comment »

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

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

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, F reedom 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

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

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.

Tags:ALBA, American Convention on Human Rights, Amnesty International, Argentina, Bolivia, Canada, Cesar Gaviria Trujillo, Chile, Colombia, Committee to Protect Journalists, Costa Rica, Declaration of Guayaquil, Ecuador, Freedom House, human rights, Human Rights Watch, Inter-American Commission on Human Rights, Inter-American Declaration of Principles of Freedom of Expression, International Covenant on Civil and Political Rights, Jose Miguel Insulza, Mexico, Nicaragua, Organization of American States (OAS), Panama, Rafael Correa, Ricardo Patino, U.N. High Commissioner for Human Rights, U.N. Human Rights Council, Union of South American Nations (UNASUR), United States of America, Universal Declaration of Human Rights, Venezuela, William J. Burns
Posted in History, Law, Other countries, Politics | 1 Comment »

dwkcommentaries

Posts Tagged ‘human rights’

Latest U.S. Report on Human Rights Around the World

U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

Former Mexican President Tells U.S. Court To Ignore Mexican Court Decision

Enforcement of International Human Rights Norms with U.S. Immigration Laws

Are the International Criminal Court’s Kenyan Cases Collapsing?

International Criminal Court: The U.S. and the ICC

International Criminal Court: Other Developments

International Criminal Court: Status of Its Situations and Cases

7. Ivory Coast (Côte d’Ivoire)

8, Mali

Mexican Court Decision Regarding Zedillo Immunity Is Filed in U.S. Case

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

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