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

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

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

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

Background

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

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

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

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

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

2. Ecuador’s Hostility to Freedom of Expression.

Ecuadorian President Rafael Correa
Ecuadorian President Rafael Correa

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

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

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

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

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

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

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

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

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

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

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

Ricardo Patino
Ricardo Patino

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

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

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

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

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

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General
Jose Miguel Insulza, OAS Secretary General

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

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

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

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

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

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

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

Conclusion

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

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


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

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

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

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

Personal Reflections on the U.S.-Dakota War of 1862

When I moved to Minnesota at age 30 in 1970, I had no knowledge of the U.S.-Dakota War of 1862 or the execution by hanging of some of the Indian leaders of that war. I had not grown up in the State and had not been exposed to its history, and although I had majored in history in college and had studied U.S. history, the War was not covered.

BannerUS-Dakotawar

By the time I went to church on October 7, 2012, I was aware that during the U.S. Civil War there had been a short war with the Indians in Minnesota and that subsequently some of the Indian leaders were hanged in Mankato, Minnesota. That was the sum total of my knowledge of these events.

Westminster Presbyterian Church
Westminster Presbyterian Church

The moving worship service that day at Minneapolis’ Westminster Presbyterian Church was devoted to remembering that War and its aftermath, especially its impact on the Dakota people. The beautiful Indian music and the sermons by Westminster’s Senior Minister, Rev. Dr. Timothy Hart-Andersen, and by Jim Bear Jacobs made me realize that the War and the executions of the Indian leaders were important events that had lasting effects to this day at least upon the Dakota people and Native Americans more generally.

I immediately wanted to share this moving and beautiful worship service with others by writing a blog post about it. I soon realized that there was so much to say about the service itself that I would have to break it up into three posts. I also realized that I needed to know more about the War and about the commemoration this year of the 150th anniversary of the War. This lead to my researching and writing separate posts on these subjects and another about the contemporaneous reaction to the War by my second great-grandfather, Rev. Charles E. Brown.

Minnesota Governor Alexander Ramsey
Minnesota Governor Alexander Ramsey
General John Pope
General John Pope

The additional research turned up the September 1862 exhortation by Minnesota Governor Alexander Ramsey for “extermination” of the Dakota Indians. The same disgusting clamor also was made that year by U.S. General John Pope, who was in charge of ending the uprising. Pope said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.

The evident anger and fear of the white settlers perhaps are akin to that experienced by the American people after the attacks of September 11, 2001. Nevertheless, as noted in a prior post, these public incitements, if made today, would constitute one form of the crime of genocide under international law.

The impact of the War on Native Americans is only one of the many ways in which what has become the dominant culture of the U.S. has denigrated Native Americans. The result is high incidences of public school drop-outs, alcoholism and suicide among Native Americans. All of this reminded me of the testimony in the Minneapolis school desegregation case by a Native American educator who said he was a “well-balanced schizophrenic,” i.e., he had one foot in Native culture and the other in the dominant culture.

Louise Erdrich
Louise Erdrich

RoundHouseAnother insight into Native culture was provided by my recent reading of Louise Erdrich’s The Round House, which was awarded the 2012 National Book Prize for fiction. One of the central events in the novel is the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime.

In an Afterword, Erdrich, who lives in Minneapolis not far from my home, cites a 2009 Amnesty International report that points out that 1 in 3 Native women will be raped in her lifetime, that 86% of such rapes and sexual assaults are by non-Native men and that few are ever prosecuted.

The novel also discusses something I never learned in law school or in 35 years of practicing law. In Johnson v. McIntosh, 21 U.S. 543 (1823), the U.S. Supreme Court, in an opinion by Chief Justice John Marshall, stated that radical title to U.S. land was obtained by European powers upon their “discovery” of the land and that the U.S. government inherited such title upon the adoption of the Declaration of Independence in 1776. In this context, “tribes of Indians inhabiting this country were fierce savages.”

Two other U.S. Supreme Court cases were also mentioned in the novel as bearing on the jurisdictional issue presented by the fictional rape. In Worcester v. Georgia, 31 U.S. 515 (1832), Chief Justice John Marshall for the Court decided that the federal government had the sole right of dealing with the Indian nations in North America. Nearly 1.5 centuries later the Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), determined that Indian tribal courts did not have inherent criminal jurisdiction to try and to punish non-Indians and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This research, thinking and writing prompted further reflection on the subject of memory and the October 7th Scripture—Numbers 15: 37-41:

  • “The Lord said to Moses: Speak to the Israelites, and tell them to make fringes on the corners of their garments throughout their generations and to put a blue cord on the fringe at each corner. You have the fringe so that, when you see it, you will remember all the commandments of the Lord and do them, and not follow the lust of your own heart and your own eyes. So you shall remember and do all my commandments, and you shall be holy to your God. I am the Lord your God, who brought you out of the land of Egypt, to be your God: I am the Lord your God.”

God understands that we humans are forgetful and that individuals and especially groups of people need reminders of important things. Indeed, constant, physical reminders like fringes on the corners of your garments are useful because of our forgetfulness and our sinfulness. Similarly many Christians wear necklaces and pins with crosses for the same reason and to proclaim that they are Christians.

Such practices and the re-telling of important stories also help educate the omnipresent newcomers to the faith or the history. They help to keep the faith or history alive. That certainly happened at the October 7th worship service and at the Minnesota History Center’s exhibit about the War and the other events to commemorate the 150th anniversary of the War.

For the same reasons the various ways in which Salvadoran Archbishop Oscar Romero is remembered are important. So too the Holocaust museums in Washington, D.C. and around the world help us remember the horrors of the Nazi persecution of the Jews.

At the same time, my reaction to the October 7th Westminster worship service suggests another phenomenon. Memory can be asymmetrical. Most white Anglo-Saxons like myself have or had no memory or understanding of the U.S.-Dakota War. For the Dakota people and Native Americans generally, on the other hand, the War and the executions of the Dakota 38 is an ever-present, painful memory. Thus, this worship service and the events commemorating the War are especially important ways of trying to break through the ignorance of the dominant culture.[1]

My reactions to this worship service also help me understand that the third-part of the Westminster worship service—Responding to the Word—does not end when you leave the sanctuary after the service. It should continue in how you live your life and how you continue to think about and probe the meaning of the Word that day. My contemplation of this worship service and the Word will continue beyond this posting.


[1] A recent article discussed this asymmetrical phenomenon in the context of an individual’s new love for another person. It said that human beings are prone to “hedonic adaptation, a measurable and innate capacity to become habituated or inured to most life changes” and that “[h]edonic adaptation is most likely when positive experiences  are  involved . . . . We’re inclined–psychologically and physiologically–to take positive experiences for granted.”

Reactions to Charles Taylor’s Conviction

Special Court for Sierra Leone Logo

As reported in a prior post, on April 26th the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia of 11 counts of crimes against humanity and war crimes. The hearing on his sentencing has been scheduled for May 16th with the sentence to be pronounced on May 30th. The deadline for any appeal is 14 days after the sentencing judgment.

Before we look at the reactions to that conviction, we should be aware of the gruesome details of what happened in Sierra Leone according to witnesses at Taylor’s trial. Here are only two examples. One male witness, “Then I put this other hand. Then he [a Sierra Leone rebel] chopped it, but when he chopped it it was not severed initially. He chopped it twice, and it hit here and some bones were broken in it. Then the third time it was severed.” Another male witness, “Well, they [the rebels] used to treat them [civilians] badly. They used to rape them. They used to kill them. Sometimes they even ate them.” A video with photos of some of the Sierra Leone victims should be watched as well as current photos from the country.

Another aspect of the trial needs highlighting. One of the challenges facing the prosecution was how to link Mr. Taylor in Liberia to the crimes committed in Sierra Leone. There was no paper trail showing orders from Taylor. Nor was there any evidence of his ever going to Sierra Leone. He was not at the scene of the crimes in that country, and the Liberian army was not involved. Instead the link was proven by radio and telephone communications from Taylor to the rebels in Sierra Leone, by shipments of arms and ammunition to the rebels from Taylor’s forces and by bank records showing transfers of funds to Taylor’s accounts from Sierra Leone.

The Special Court’s chief prosecutor, Brenda J. Hollis, who is a U.S. lawyer, said the conviction was a triumph for the idea that political leaders should be held accountable  for their deeds in “the new reality of an international justice system.”

The U.N. High Commissioner for Human Rights stated that the conviction “marked a major milestone in the development of international justice. . . .  A former President, who once wielded immense influence in a neighbouring [sic] country where tens of thousands of people were killed, mutilated, raped, robbed and repeatedly displaced for years on end, has been arrested, tried in a fair and thorough international procedure, and has now been convicted of very serious crimes.” Such a result, she said, was “a stark warning to other Heads of State who are committing similar crimes, or contemplating doing so.”

The U.S. Department of State issued an official statement welcoming the conviction as “an important step toward delivering justice and accountability for victims, restoring peace and stability in the country and the region, and completing the Special Court for Sierra Leone’s mandate to prosecute those persons who bear the greatest responsibility for the atrocities committed in Sierra LeoneThe Taylor prosecution at the Special Court delivers a strong message to all perpetrators of atrocities, including those in the highest positions of power, that they will be held accountable.” The U.S. statement also noted that the U.S. “has been a strong supporter and the leading donor of the Special Court  . . . since its inception. The successful completion of the Special Court’s work remains a top U.S. Government priority.”

Amnesty International (AI) asserted that the conviction sends “a clear message to leaders the world over that no-one is immune from justice.”  However, AI lamented that because of the limited jurisdiction and funding of the Special Court, “Thousands of persons suspected of criminal responsibility for incidences of unlawful killings, rape and sexual violence, mutilations and the use of children in Sierra Leone’s armed conflict have never been investigated, much less prosecuted.” In addition, AI emphasized that “only a limited number of Sierra Leone’s thousands of victims who bear the terrible scars of the conflict have received reparations, despite the [provisions for reparations in the Sierra Leone] Peace Accord and the clear recommendations [for reparations] by [Sierra Leone’s] Truth and Reconciliation Commission.” AI also reiterated its call for the repeal of the amnesty provision in the Peace Accord and [for Sierra Leone’s] enactment of legislation defining crimes against humanity and war crimes as crimes under Sierra Leone law.”

Human Rights Watch had a similar reaction. It said the conviction “sends a message to those in power that they can be held to account for grave crimes.”

A New York Times editorial said the conviction “is a historic victory for justice and accountability: the first time a former head of state has been convicted by an international court since the Nuremberg trials after World War II. Mr. Taylor . . . richly deserves this distinction.” The editorial also reminded us that “other leaders . . .  deserve the same fate” from the International Criminal Court in its prosecutions of the Ivory Coast’s brutal former president, Laurent Gbagbo, and Sudan’s current president, Omar Hassan al-Bashir.

The Guardian newspaper from London commented that the conviction was “an important step in what can only be described as the faltering path of international justice.” It noted that even though there were dysfunctional justice systems in Russia and China, it is “a safe bet that no Russian [or Chinese] leader will ever appear before an international court of justice for war crimes . . . . The same is true of . . . US or British generals for war crimes committed in Iraq and Afghanistan. Might, or a seat on the UN security council, still appears to be right. If the arm of international law is long, it is also selective. . . .  If impunity is to end, jurisdiction has to be universal.”

Taylor’s conviction was for crimes against humanity and war crimes in Sierra Leone. But the conviction reminded Liberians of the horrible similar crimes committed in their country by Taylor and his forces.

Charles Taylor (Rebel leader)
Charles Taylor, President of Liberia

An expert on Liberia stated that in “Liberia, Mr. Taylor fought a brutal campaign against West African peacekeepers and other armed factions. As many as 250,000 Liberians out of a prewar population of just over [3,000,000] lost their lives, while more than [1,000,000] others became refugees — crimes for which no one has yet been held accountable. An internationally brokered peace deal in 1997 led to the travesty of a frightened population’s electing Mr. Taylor president for fear of what would happen if he did not get his way. He was driven from power only in 2003.” Moreover, “many of his closest former associates remain at large and active in public life . . . . Mr. Taylor’s ex-wife, Jewel Howard Taylor, who filed for divorce after his fall from power in part to protect her assets from international sanctions, is a member of the Liberian Senate. So is Prince Y. Johnson, a onetime Taylor ally who literally butchered President Samuel K. Doe at the start of the civil war and was so certain of his impunity that he had the entire episode videotaped for posterity. Far from becoming a pariah, Mr. Johnson played kingmaker in Liberia’s presidential election last year, delivering the bloc of votes that assured President Ellen Johnson Sirleaf a second term.”

The previously mentioned New York Times editorial said that Taylor now “must also be held accountable for his role in Liberia’s 14-year civil war. Liberia needs to enact the legislation to bring him, and the other murderous warlords from that era, to trial either in Liberian or international courts.”

Amnesty International and Human Rights Watch also remembered that Taylor and his forces had committed grave crimes in his native Liberia, but had not been subject to any criminal prosecutions for those crimes. Said AI, “during “the 14-year Liberian civil war that raged while Taylor was first the leader of one of the numerous armed opposition groups and later the President, all parties to the conflict committed war crimes and crimes against humanity, including murders along ethnic lines, as well as torture, rapes and other crimes of sexual violence, abductions, and recruitment and use child soldiers.” After the end of the civil war, AI said the Liberian Truth and Reconciliation commission had recommended “that a criminal tribunal be established to prosecute people identified as responsible for crimes under international law [but that it] is yet to be implemented, as are most TRC recommendations on legal and other institutional reforms, accountability, and reparations.  The lack of justice for the victims of the Liberian conflict is shocking. The government of Liberia must end the reign of impunity by enacting the necessary legislation and acting on its duty to investigate and prosecute alleged perpetrators.”

Finally, two African observers commented that justice having “had to come from international courts does not reflect well on . . .  Liberia in particular. The process exposes the failure by Liberians to provide themselves with a legal and judiciary system capable of effectively administering justice.” More generally “the verdict and the process should be a wakeup call to Africans. The successful conviction for such crimes is a glaring example of the failure of Africans to govern themselves effectively. . . . Africans must focus on building strong institutions to deal with human rights violations ourselves . . . .” On the other hand, the conviction “informs future Liberian, and indeed African, dictators and tyrants that they cannot escape justice by hedging their bets on a dysfunctional domestic legal system. Where national systems are incapable of adequately and effectively prosecuting leaders who engage in wanton violations of human rights, citizens can look to the international criminal court for justice.”

Dismissal of Spanish Criminal Case Against Judge Baltasar Garzón Over Franco-Era Investigation

Spanish Flag

On February 27th, the Spanish Supreme Court, 6 to 1, dismissed the criminal case against Judge Baltasar Garzón over his investigation of human rights violations by the Franco regime. A prior post reviewed this criminal case while posts on February 14th and 21st  explored reactions to the case. This case will investigate the recent dismissal and the immediate reactions to that decision.

The Dismissal Decision Itself

The Supreme Court aquitted Garzón of the crime of trespass (knowingly making an unjust resolution) for trying to open an investigation into the crimes of Francoism.

According to the Court, Garzón overstepped his authority and “exceeded himself in the interpretation of the law” by investigating the Franco-era disappearances, but his actions did not constitute an abuse of power.

The Court said a search for truth regarding Civil War atrocities is necessary and legitimate, but that such a search should be conducted by other state institutions, not by an investigative judge. In short, historians have a role as do judges, but they must not be mixed.The court also acknowledged that Mr. Garzón attempted “to improve the situation” of Civil War victims who “have the right to know the facts and recover their dead” relatives.

Spain’s amnesty law, the Court concluded, was enacted with the full consensus of political forces in 1977 and was not a law “approved by the victors, those in power to cover up their crimes.” It was an instrument of reconciliation, not a law of amnesty like those enacted by some of the South American dictatorships. As a result, the Spanish amnesty law is valid and can only be repealed by Parliament, not by judges.

One of the Supreme Court judges, Judge Sánchez Melgar, filed a concurring opinion. He agreed that the charges should be dismissed, but on the ground that Garzón lacked the necessary intent to abuse the judicial function.

The sole dissentingjudge, Judge Jose Manuel Maza, stated that Garzón should have been convicted of willful trespass for instigating a procedure to serve the subjective intentions of the complainants against people already dead and for crimes that had been amnestied or at least, were clearly prescribed by the statute of limitations. The good intentions of Garzón were irrelevant, the dissenter stated.

The full text of the decision (en espanol) is available online.

Reactions to the Dismissal Decision

Human rights organizations although pleased with the dismissal had negative comments about the entire criminal cases against Judge Garzón.

Human Rights Watch said, “The real losers are the reputation of the Spanish judiciary and those — in Spain, in detention at Guantánamo or in countries around the world where there is no justice — who knew they could count on at least one independent judge to apply human rights laws without fear of the political consequences.” This organization also called for Spain to “repeal the 1977 amnesty law” and  “assist the families of Franco’s victims in their long quest for truth and justice.”

Amnesty International urged the Spanish authorities to “do justice” in Spain and investigate the crimes of the Civil War and Francoism. AI added, “There should be no impunity in Spain for such heinous crimes.”

Spain’s Association for the Recovery of Historical Memory urged its Supreme Court to “act urgently, and rule on how these atrocities [of the Franco era] are to be legally pursued.”

Spain’s Justice Minister, on the other hand, said that Spain had “a strong and independent judiciary” and that “[n]one of the [unjustified] criticism against the Supreme Court . . . has made it lose its prestige in the eyes of Spanish citizens.” The decision, not surprisingly, was also defended by Spain’s Supreme Judicial Council.

The Wall Street Journal’s editorial opined that the decision was “a troubling blow to the 1977 amnesty covering the bloody misdeeds of Spain’s authoritarian period—the deliberate “forgetting” of the past to which contemporary Spain owes so much.The purpose of [Spain’s] amnesty is not to dishonor the victims of atrocities or to vindicate the perpetrators. It is to ensure that the sins of the guilty do not engender new strife among the innocents, and that those sins are not exploited for political gain. It was never the place of a crusading judge to substitute his politics for the will of a country seeking to move forward.”

Conclusion

As a U.S. lawyer, I reiterate my plea for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of this and the other two  cases against Judge Garzón.

Commentary on the Spanish Criminal Cases Against Judge Garzon

Judge Baltasar Garzon

A prior post summarized the three pending criminal cases against Spanish Judge Baltasar Garzon.

This month has seen significant developments in these cases. On February 8th, the trial of the Franco-era case ended with Judge Garzon telling the court that he was motivated by “the helplessness of the victims.” The decision in that case is still to come. On February 9th, Judge Garzon was convicted of the charges involving his approval of wire-tapping attorney-client communications. On February 13th the court dismissed the case about the Judge’s alleged bribery by Banco Santander.

Now I have further commentary about these cases.

Reaction to the Criminal Charges Arising Out of the Franco-Era Investigation

The case that has drawn the most attention is the one with respect to Judge Garzon’s investigation of Franco-era human rights violations.

This case against the Judge has been severely criticized by the major Spanish newspaper, El Pais, which proclaimed that the case was reckless for “being charged . . . with apology for and defense of a dictatorial regime of cursed memory for many Spanish people. it also has a tone of provocation and insolence, which is hard to accept in democratic Spain. . . . The overtly fascist ideological tone of the legal action has contaminated the proceedings from the start, and is causing serious damage to the international image of Spain.”

Madrid demonstration for Garzon
Madrid demonstration for Garzon

Spanish citizens supporting the Judge have demonstrated in front of the Supreme Court building with signs saying “Stop the Persecution of Judge Garzon.” This obviously is only one segment of Spanish society which still has deep-seated divisions over its Civil War of the 1930’s.

Similar criticism has been leveled by international human rights organizations and leading newspapers. Amnesty International said this case was “a threat to human rights and judicial independence.” Human Rights Watch had similar harsh words: the case “threatens the concept of accountability in Spain and elsewhere.” The International Commission of Jurists said this case was “an attack against one of the pillars of the rule of law.” An author in Dissent said the main purpose for these charges was to “silence . . . those who’ve dared give voice to memories of political abuse and those who might pursue universal jurisdiction.” In the U.S. a New York Times editorial observed that this case was “a disturbing echo of the Franco era’s totalitarian thinking.”

Moreover, these charges against Garzon have spawned at least two collateral proceedings.

In March 2011 a British human rights organization, Interights, filed a complaint with the European Court of Human Rights asserting that under international law there could be no valid amnesties or statutes of limitations for crimes against humanity, that Judge

Garzon could not validly be punished for his reasoned interpretation of law and that the charges against Judge Garzon were threats to judicial independence. The European Court, however, is unlikely to take any action on this complaint for many months.

The prior year, May 2010, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights and nine other human rights organizations filed a complaint with the U.N. Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers (and five other U.N. special rapporteurs and working groups) alleging that these criminal charges against Judge Garzon were an improper interference with the Spanish judiciary. I have not been able to find any action or report about what these U.N. entities have done, if anything, with respect to this complaint.

It should be noted that this May 2010 complaint to U.N. entities was submitted before the WikiLeaks disclosure of the U.S. diplomatic cables about U.S. efforts to stop Spanish criminal cases against U.S.officials, and there was no allegation in this May 2010 complaint that the U.S. or Spanish officials improperly caused the criminal charges against Judge Garzon to be made.

As reported in prior post, on January 19, 2012, two of these same human rights organizations–the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights–alleged that U.S. and Spanish senior governmental officials improperly had attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. The asserted bases for the allegations were U.S. diplomatic cables released by WikiLeaks; these cables are now available on the web. The allegations themselves were set forth in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. However, this recent complaint to the Special Rapporteur does not allege that the U.S. or Spain or both improperly had instigated the criminal charges against Judge Garzon. Perhaps the unstated hope of this complaint is that the Rapporteur would uncover evidence of such an improper attempt.

The absence of such a direct accusation in the recent complaint to the Rapporteur is significant, in my opinion, because simultaneously with filing of that complaint, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights along with seven other human rights organizations released a joint statement supporting Judge Garzon on his investigation of crimes related to the alleged crimes of the Franco regime. The statement asserts that application of international law to such crimes as was done by Judge Garzon does not constitute judicial malfeasance under Spanish law. Indeed, the joint statement elucidates the international law against the validity of amnesties for genocide, crimes against humanity and war crimes. But the joint statement did not allege that this criminal case against the Judge was the result of improper actions of U.S. or Spanish officials.

Reaction to the Other Two Criminal Cases Against Judge Garzon

There has been considerable commentary about the Judge’s conviction in the tapping of attorney-client communications that has been discussed in posts on February 10th and February 11th.

The El Pais editorial about the conviction should also be mentioned. It said that the Supreme Court’s rationale was  “hair-brained, absurd and even offensive.” This rationale asserted that Judge Garzon sought to weaken the suspects’ “defense strategies” to such a degree as to place “the Spanish penal system on the same level as that of totalitarian regimes.” That absurdity of this rationale was shown by the facts that the wire taps were sought by the Office of the Public Prosecutor, were maintained by another judge who replaced Judge Garzon in the corruption investigation and were initially approved by the Madrid High Court. Absurd though it was, the rationale served the Supreme Court’s “objective: eliminating Garzón as a judge.”

The dismissal of the third case involving alleged bribery of Judge Garzon makes it unnecessary to make further comment on that case.

Conclusion

The criminal cases against Judge Garzon are very important. First, they are obviously important for the Judge personally. Second, they are important, in my opinion, for the independence of Spanish judges from internal (or external) political opposition to judicial decisions. Third, they are important around the globe for judicial enforcement of international human rights.

Universal Jurisdiction for the Most Serious Crimes

Under customary international law, a nation state’s courts have jurisdiction over crimes where there is some link, usually territorial, between that state and the crime. In addition, under customary international law and certain treaties, a state has universal jurisdiction over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.[1]

Amnesty International recently released a comprehensive review of domestic statutes regarding criminal jurisdiction in the 193 members of the United Nations. It found that 75% of the members provided for universal  jurisdiction over one or more of the above crimes.  Yet there are many obstacles to effective use of these jurisdictional statutes. States often incorporate incomplete or incorrect definitions of such crimes into their domestic codes. Another obstacle is incorporation of defenses that are inconsistent with the international law for these crimes: following superior orders; statutes of limitation; amnesty laws; pardons; and immunities.[2]

On the other hand, this study found only 19 states have actually invoked universal jurisdiction since World War II. They are Argentina, Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Paraguay, Senegal, Spain, Sweden, Switzerland, the United Kingdom and the U.S.[3]

As we have seen, one of these 19 states–Spain–currently is invoking its domestic statute that implements the principle of universal jurisdiction for its criminal prosecution of former Salvadoran military officers for the November 1989 murders of the six Jesuit priests and their cook and her daughter at the Universidad de Centro America in San Salvador.[4] Spain’s statute provides that its National Court (La Audiencia Nacional) has universal jurisdiction for war crimes, genocide, crimes against humanity and torture.[5]

In 2009 Spain adopted an amendment that added the following conditions or limitations on such jurisdiction: (1) the alleged perpetrators are in Spain; or (2) the victims are of Spanish nationality; or (3) there is another connecting link to Spain. In addition, the amendment specified that for such Spanish jurisdiction to exist another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there is such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.[6]

This amendment has been seen by some as a significant and regrettable limitation on universal jurisdiction in Spain.[7] In my opinion, however, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction, and the limitations are reasonable to make efficient use of Spanish judicial resources. Moreover, the subsidiary principle is similar to the International Criminal Court’s notion of complementarity whereby the ICC does not take a criminal case if there is a good faith criminal investigation or prosecution in a national court system or a good faith decision by a state not to prosecute.[8] The same considerations find expression in the U.S. notions of comity or forum non conveniens whereby a civil case in an U.S. court is stayed or dismissed if it makes more sense for the case to be litigated in another country.


[1] David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 572-86 (4th ed. 2009); Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction (2001). Especially noteworthy is a blog exclusively devoted to universal jurisdiction: http://ergaomnesnet.wordpress.net.

[2] Amnesty Int’l, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World (Oct. 2001 [“AI Study”]; van Schaack, Amnesty International Universal Jurisdiction Study, IntLawGrlls (Nov. 30, 2011).

[3] Id.

[4] Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2001); Post: Spain Requests Extradition of Suspects in Jesuits Case (Dec. 3, 2011).

[5] AI Study at 105; Human Rights Watch, Universal Jurisdiction in Europe, ch. XII (June 27, 2006). The Criminal Division of the Spanish National Court in Madrid has six chambers. An instructing (or investigative) judge presides over each chamber. Once an instructing judge accepts a criminal case, that judge initiates an investigation. After the completion of the investigation, the instructing judge closes the case and transfers it within the court to a panel usually of three judges who will preside over the trial or “oral phase” of the case. Such criminal cases are commenced by ordinary citizens filing a criminal complaint. If a victim files the complaint directly with an instructing judge, then the victim becomes a party to the case for further proceedings. This is known as a private prosecution (acusacion particular). (Center for Justice & Accountability, The Spanish National Court: An Overview of La Audiencia Nacional, http://www.cja.org/article.php?id=342&printsafe=1.)

[6] Spain, Government Gazette No. 266, Law I/2009, First Article (Nov. 4, 2009) (amendment to Article 23.4 of Organic Law 6/1985) (Google English translation); Burnett & Simons, Push in Spain to Limit Reach of the Court, N.Y. Times (May 20, 2009); Burnett, Spain Votes on Changes to Inquiry Law, N.Y. Times, (June 26, 2009); Assoc. Press, Spain Shortens Long Arm of Justice, N.Y. Times (Oct. 15, 2009).

[7] Center for Justice & Accountability, Bill Restricting Spain’s Universal Jurisdiction Law Passes First Round of Voting, http://cja.org/article.php?id=666 (circa June 25, 2009); Human Rights Watch, The world needs Spain’s universal jurisdiction law (June 27, 2009).

[8]  Post: International Criminal Court: Introduction (April 28, 2011).

International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur)

As previously reported, the ICC has been investigating the situation in Sudan (Darfur) for genocide, crimes against humanity and war crimes since July 1, 2002, at the request of the U.N. Security Council.[1]

On June 8, 2011, the ICC Prosecutor made his semi-annual report to the U.N. Security Council on the status of his office’s investigations and prosecutions in this matter.[2] The following are the main points of that report:

  • There are three pending ICC prosecutions from Sudan (Darfur). In two of them–Harun and Kushayh and Bashir–the defendants are still at large, and thus the proceedings have not really commenced. In the third case against two rebel commanders, the parties have agreed to certain facts and limited the trial to three issues: (1) whether a certain attack by the rebels was unlawful; (2) if the attack is deemed to be unlawful, whether the defendants were aware of the factual circumstances that established its illegality; and (3) whether the African Union Mission in Sudan was a peacekeeping mission in accordance with the U.N. Charter. In this third case, the defendants do not dispute their participation in the attack and both have committed to surrender voluntarily to the ICC.
  • The Prosecutor also said his office was considering presenting a fourth Sudanese case to the Court’s Pre-Trial Chamber for its decision whether or not to issue arrest warrants.
  • All of these cases concern past alleged crimes. In addition, the Prosecutor reported that the following crimes were continuing: bombing attacks targeting or indiscriminately affecting civilians; ground attacks targeting civilians; widespread sexual and gender-based violence; attacks on human rights defenders, civil society members and community leaders; deliberately inflicting conditions of life calculated to cause physical destruction of groups of people; forcible transferring of populations; recruitment and use of child soldiers; and concealing information on crimes.
  • The government of Sudan has announced its investigations of these alleged crimes and the creation of new entities to do so, but there are no such investigations, and the announcements are parts of a governmental policy of covering up the crimes and avoiding international scrutiny.
  • When the ICC exposes these crimes, the reaction of President Bashir and other leaders has been “to deny the crimes entirely, attribute them to other factors (such as inter-tribal feud), divert attention by publicizing . . . ceasefire agreements that are violated as soon as they are announced and threaten the international community with retaliation and even more crimes. . . . Bashir has successfully transformed public knowledge of his criminal responsibility as a negotiating tool.”
  • “It is the challenging responsibility of the . . . Security Council to use the information exposed by the [ICC] to stop the crimes in Darfur, to protect the civilians in Darfur. The [ICC] Prosecution, fulfilling its mandate, is willing to assist.”

After the submission of this report, the Council’s 15 members went into private session to discuss the report. They were joined by representatives of 37 other countries.[3]

Immediately after this Security Council meeting there were reports of a “growing sense of panic” in central Sudan with 60,000 displaced people, blocked relief convoys, ethnic clashes and many deaths. This week the Council was given an alarming report about current violence and threatened ethnic cleansing.[4] In short, the armed conflict in Darfur has not stopped. Nor has the illegal intentional practice of targeting civilians.

Sudanese President Bashir’s evasion of arrest to face ICC charges continues to make the news. On June 13th, Hillary Clinton, U.S. Secretary of State, addressed African leaders at a meeting of the African Union in Addis Ababa, Ethiopia and pressed them to abandon authoritarian rulers. President Bashir also was in Addis Ababa for the meeting, but left before Clinton arrived.[5] On June 14th Amnesty International urged Malaysia to withdraw an invitation to President Bashir to attend an upcoming economic forum and to arrest him if he came. On June 16th Amnesty International made a similar plea to China after its announcement that Bashir would be visiting that country next week supposedly to talk about seeking peace in his country.[6]


[1] See Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[2]  ICC Office of Prosecutor, Thirteenth Report of the [ICC] Prosecutor to the UN Security Council [on Sudan (Darfur)] (June 8, 2011); ICC Office of Prosecutor, Statement to the [U.N.] Security Council on the situation in Darfur, the Sudan (June 8, 2011); U.N. Security Council,6548th Meeting (June 8, 2011); U.N. Security Council, Press Release: President of Sudan Has Learned To Defy Security Council . . . . (June 8, 2011).

[3]  U.N. Security Council, 6549th (closed) meeting (June 8, 2011).

[4]  Gettleman, U.N. Officials Warn of a Growing ‘Panic” in Central Sudan as Violence Spreads, N.Y. Times (June 15, 2011); Lynch, Obama expresses concern over Sudan violence, Wash. Post (June 16, 2011); Reeves, In Sudan, genocide anew?, Wash. Post (June 17, 2011); Totten, Is Omar Hassan al-Bashir Up to Genocide Again?, N.Y. Times (June 18, 2011).

[5] Myers, Clinton Presses Africans to Abandon Authoritarian Rulers, Singling Out Qaddafi, N.Y. Times (June 13, 2011).

[6] AP, Amnesty urges Malaysia to withdraw invitation to Sudan president or arrest him when he arrives, Wash. Post (June 14, 2011); AP, China Invites Sudan Leader Accused of War Crimes, N.Y. Times (June 16, 2011); AP, US Seeks China’s Help in Sudan as Alarm Grows, N.Y. Times (June 16, 2011); AP, Sudan leader al-Bashir to skip Malaysia forum amid calls to arrest him on war crime charges, Wash. Post (June 15, 2011).