human rights violations – dwkcommentaries

U.S. Afghan Special Visa Program Still Facing Immense Problems

In August 2023, the U.S. State Department’s Office of Inspector General released its report on evaluation of 2018-22 adjustments to the Afghan Special Visa Program, which was established in 2009 to resettle “Afghans who had worked on behalf of the [U.S.] in Afghanistan and had experienced an ongoing and serious threat as a result.”[1]

The Report’s Findings

“A. The Department Made Efforts To Streamline Afghan Special Immigrant Visa Processing Beginning in February 2021, but Challenges Remain.” More specifically, “as of December 2022, these actions had not eliminated the significant and growing Afghan SIV applicant backlog. Specifically, the Department increased staffing to process emails and determine applicant eligibility; coordinated with the Department of Defense to verify employment; incorporated new software to help process emails; eliminated a portion of the application process; leveraged posts worldwide for SIV interviews; and established remote consular operations in Doha, Qatar. However, because of an increased interest in the program after [the U.S. withdrawal from Afghanistan in] August 2021, the Department experienced an influx of applications causing a backlog for which the Department had inadequate staffing to process. Without additional dedicated resources to address the situation, the backlog in SIV applications will remain a significant challenge.”

“B. COVID-19 Caused Delays to Afghan SIV Processing and Increased the Backlog of Applicants.” More specifically, “the COVID-19 pandemic stalled the Afghan SIV application process, which in-turn increased the number of SIV applicants awaiting in-person interviews….

Embassy Kabul suspended visa interviews twice: from March 2020 to February 2021 and from June to July 2021 because of COVID-19 outbreaks. However, telework allowed the Department to continue some phases of SIV applicant processing.”

“C. The Afghan Special Immigrant Visa Program Faces Challenges and Would Benefit From a Strategic Performance Management Approach.” More specifically, “The Department relies on Taliban cooperation for SIV applicant relocation from the country because of a lack of a [U.S.] ground presence in Afghanistan. In addition, the Department has not developed and implemented a strategic performance management approach to resolving the Afghan SIV applicant backlog, and the Department’s Afghan SIV Senior Coordinating Official position has had periods of vacancy and frequent turnover since 2017. Developing and implementing a strategic performance management approach would benefit the Afghan SIV program and help address the SIV applicant backlog.”

“The reliance on Taliban cooperation because of the lack of US diplomatic ground presence in Afghanistan impacts the ability for Afghan SIV applicants to exit Afghanistan and arrive at a US diplomatic post for visa processing.” Indeed, “one of the biggest challenges to SIV applicants departing Afghanistan is the lack of freedom of movement out of Afghanistan, which is dependent on Taliban cooperation. The Taliban’s willingness to approve flights, to allow women to depart Afghanistan alone, to determine the number of aircraft Kabul International Airport can accommodate, and other factors impacted freedom of movement for Afghans.. . .”

As of April 2023, the Department estimates that 840,000 principal applicants and family members remain in Afghanistan with uncertainty where they are in the application process. As of August 1, the U.S. has “issued nearly 34,000 SIVs to principal applicants and their eligible family members while another 80,000 applicants are in process with tens of thousands having begun the applications.

The Report’s Recommendation

The Report then made the following Recommendation: “OIG recommends that the Special Immigrant Visa (SIV) Senior Coordinating Official, in coordination with the Bureau of Consular Affairs and the Joint Executive Office for the Bureau of Near Eastern Affairs and the Bureau of South and Central Asian Affairs, develop and implement a strategic performance management approach to improve the outcomes of the Afghan SIV program, including establishing goals and measures of success to evaluate progress against those established goals.”

The Department’s Management responded to that Recommendation as follows: “The Department concurred with the intent of the recommendation and requested that OIG revise the recommendation to read “the [Special Immigrant Visa (SIV) Senior] Coordinating Official, in coordination with the Bureau of Consular Affairs and the Joint Executive Office for the Bureau of Near Eastern Affairs and the Bureau of South and Central Asian Affairs, continue to implement procedural changes and allocate resources in service of meeting the Department’s Afghan SIV processing goals. The Department should use the efficiency improvements, Chief of Mission (COM) decisions, and visa interview sections included in the quarterly Congressional reports on SIV processing to track progress, referencing the Program Design and Performance Management Toolkit as needed.”

“Additionally, Department comments noted that ‘after reviewing the Program Design and Performance Management Toolkit [mentioned in the finding] …, the Department maintains that Afghan SIV … adjudication is a process, not a program. However, the Department is aware of the value in this toolkit and will utilize it as a reference, as needed, while we continue to assess existing [Afghan SIV] processing goals.”

Conclusion

This blog already has discussed the Taliban’s human rights violations against in-country Afghans who had helped the U.S. troops before their August 2021 withdrawal.[2]

============================

[1] U.S. State Dep’t, Office of Inspector General, Evaluation of Adjustments to the Afghan Special Immigrant Visa Program From 2018 through 2022 (Aug. 2023) Hansler, Challenges to Afghan special visa program remain two years after US withdrawal, State Dept, watchdog finds, CNN.com (Sept. 1, 2023) . See also Atwood & Hansler, State Department review of US withdrawal from Afghanistan includes far more findings than White House document, CNN (April 7, 2023)

[2] U.N. Agency Reports Afghan Human Rights Violations Against Former U.S. Partners, dwkcommentaries.com (Aug. 26, 2023); COMMENT: Dangerous Life in Afghanistan of Family of U.S. Interpreter, dwkcommentaries.com (Aug. 29, 2023).

U.N. Security Council Discusses Cameroon’s Anglophone Crisis

On December 6, 2019, the U.N. Security Council held a meeting about the countries of Central Africa, including Cameroon. Here is an account of the U.N. Secretary-General’s report preceding that meeting and the discussion at that meeting insofar as they related to Cameroon.

Secretary-General’s Report (11/29/19)[1]

The Secretary-General stated, ”In the North-West and SouthWest Regions, violence continued to affect 1.3 million people, including over 700,000 people who were uprooted from their homes. Armed fighting and insecurity in the two regions continued to be the principal impediment to the provision of assistance and a barrier for those in need to reach areas where they could receive aid. Attacks on health infrastructure and personnel, schools, teachers, parents and children persisted. More than 855,000 children – almost 9 out of 10 – have been out of school for three years in the two regions. As of November 2019, 90 percent of public primary schools and 77 percent of public secondary schools remained closed or non-operational.”

A U.N. team recently “found that serious human rights violations and abuses, Cameroonattributed to both government security forces and armed separatists, were occurring across the two regions. [The team] received allegations of unlawful killing, rape and gang rape, torture and other forms of ill-treatment, abduction for ransom, infringement of the rights to freedom of expression and peaceful assembly, forced displacement, destruction of property and attacks on schools and medical facilities, as well as arbitrary detention. There was concern regarding impunity.”

Comments at the Security Council Meeting (12/06/19) [2]

Francois Louncény Fall, the Head of the U.N. Regional Office for Central Africa (UNOCA) and the Secretary-General’s Special Representative for that subregion, opened the meeting by presenting the previously mentioned Secretary-General’s report.[3]

According to the summary of his remarks, he said that although Cameroon’s National Dialogue (September 30-October 4) had been productive, “the level of violence continues to threaten Cameroonian lives, . . . citing reports of human rights violations and abuses attributable to all sides. Humanitarian workers have also been targeted. . . . More than 700,000 people have been displaced by the conflict and thousands have been reported killed or injured, . . . [He called] upon international partners to support national efforts to address humanitarian needs. In the wake of the national dialogue, some of its recommendations have been implemented, including the release of some prisoners, but the swift implementation of all recommendations will be a significant step towards resolving the crisis” and contributing “significantly towards resolving the political and humanitarian crisis enveloping that country’s North‑West and South‑West regions.” He also said that there needed to be “further discourse among all stakeholders in order to quell underlying tensions among marginalized communities. The elections announced for 2020 will be a crucial test of democracy and the determination of national stakeholders to achieve genuine stability and socioeconomic development for all Cameroonians, he continued, urging all sides to step up their efforts to protect and promote human rights and to tackle impunity.”[4]

The Special Representative added that although Cameroon President Biya has announced legislative and municipal elections for next February, the leader of a major opposition party had declared that it would not participate in the election because of no suitable conditions for voting in the Anglophone region (the north-West and South-West Regions) while other opposition parties had reservations about the election. For this election to be successful test of democracy, there must be “genuine stability and socioeconomic development for all Cameroonians.” Therefore, “all actors on the ground [must] step up their efforts to protect and promote human rights and to tackle impunity.”

Most of the Council members, according to the summary, had very little comment about Cameroon or merely welcomed the national dialogue and urged the parties to the conflict to resolve differences through compromise. This was true for Equatorial Guinea, Dominican Republic, Russian Federation, Kuwait, Peru, Indonesia and China.

European members of the Council, however, were slightly more pointed in their remarks about Cameroon:

The United Kingdom representative expressed “concern over the strife in Cameroon” and said “all parties must do more to ensure humanitarian access. He called for an end to human rights abuses, for the investigation of all incidents and for the implementation of all recommendations of the national dialogue, including those on strengthening bilingualism and engaging diaspora groups. ‘Words need to be matched by actions,’ to prevent the situation from deteriorating, he emphasized, underlining the imperative need for the international community to support further peacebuilding efforts in Cameroon.”
The representative for Belgium expressed “concern over the strife in Cameroon” and said “all parties must do more to ensure humanitarian access. He called for an end to human rights abuses, for the investigation of all incidents and for the implementation of all recommendations of the national dialogue, including those on strengthening bilingualism and engaging diaspora groups. ‘Words need to be matched by actions,’ to prevent the situation from deteriorating, he emphasized, underlining the imperative need for the international community to support further peacebuilding efforts in Cameroon.”
Poland’s representative “welcomed Cameroon’s holding of a national dialogue but expressed concern over continued human rights violations in that country. All incidents should be investigated and perpetrators held accountable.”
The German representative said “the deteriorating situation in Cameroon” suggested the Security council should “consider how UNOCA can contribute resolving the conflict, which has a negative impact on the entire Central Africa region.”

The most critical remarks came from U.S. Ambassador Cherith Norman Chalet. While he expressed gratitude for the Secretary-General’s “work in Cameroon to facilitate a peaceful resolution to the crisis in the Anglophone Northwest and Southwest Regions,” he stated the U.S.has increasing concern over the “rapidly worsening humanitarian and human rights situations in Cameroon. Credible reports detail persistent human-rights violations, including extrajudicial killings, arbitrary and unlawful detention, and torture, all conducted with impunity.”

This, the U.S. said, has become “a humanitarian situation requiring immediate attention. Parties to the conflict limit humanitarian access, and a worsening security situation has reportedly left as much as 65 percent of the Northwest and Southwest Regions of Cameroon out of bounds to aid workers.”

Therefore, U.S. Ambassador Chalet urged, first, that the U.N.’s Regional Office for Central Africa and “our partners to take a more assertive role in resolving Cameroon’s conflict and to continue to urge both the Government of Cameroon and separatist groups to enter into open-ended dialogue without pre-conditions, [thereby] relinquishing their focus on a military solution.” Second, the “Swiss-led mediation process between the Government of Cameroon and the separatists” should go forward immediately.[5]

These critical comments by the U.S. Ambassador echoed the words and actions of the U.S. after President Biya’s speech and national dialogue when the U.S. did not applaud the speech and on October 31, 2019, suspended Cameroon’s participation in a beneficial African trade program because “the Government of Cameroon currently engages in gross violations of internationally recognized human rights., [including] extrajudicial killings, arbitrary and unlawful detention, and torture.” [6]

Conclusion

Significantly there was no Security Council resolution regarding Cameroon at this meeting, meaning there was no additional U.N. pressure for ending the persecution of the Anglophone Cameroonians.

It also should be noted that although all of these cited documents are in the public domain, there was no discussion of them in the principal U.S. media for coverage of international affairs, the New York Times and the Washington Post.

=====================================

[1] U.N. Security Council, Report of the Secretary-General: the situation in Central Africa and the activities of the United Nations Regional Office for Central Africa (Nov. 29, 2019) [Cameroon, paras. 5-7, 23, 27, 29-32, 41, 74].

[2] U.N. Security Council, Building upon Momentum from National Dialogue Can Help Cameroon Resolve Political, Humanitarian Crisis, Special Representative Tells Security Council (Dec. 6, 2019); U.S. Mission to U.N., Remarks on UNSC Briefing on UNOCA (UN Regional Office for Central Africa) (Dec. 6. 2019).

[3] According to a U.N. website, Monsieur Fall is a native of Guinea and between 2012 and 2016 served as its Minister for Foreign Affairs after serving as its Prime Minister and as Secretary-General to the Presidency. He also held a number of Guinean ambassadorial positions, including Permanent Representative to the United Nations and representative at the Security Council. For the U.N. he was the Special Representative of the Secretary-General in Somalia, 2005-2007 and in the Central African Republic from 2007 to 2008 and as the Vice-Chairman of the Commission for the Monitoring and Evaluation of the South Sudan Peace Agreement, January to October 2016. Since November 2016 he has been the Acting Special Representative of the Secretary-General and Head of UNOCA. Mr. Fall holds a master’s degree in international law from Conakry University in Guinea.

[4] On September 10, 2019, Cameroon President Paul Biya in a speech recognized that the country’s crisis initially was triggered by the need to preserve the Anglo-Sacon judicial and educational systems in the Anglophone regions and that the government had taken steps to meet those needs, including the establishment of the Commission for the Promotion of Bilingualism and Multi-culturalism and a decentralization process. However, a secessionist movement have fomented violence requiring the government to respond with force. Now the country will conduct a major national dialogue to find ways to address the many problems in the country. The President will offer pardon to those who voluntarily lay down their arms. This speech elicited positive reactions from the U.N. and the African Union, but skepticism from some of the country’s opposition parties. (See Potential Breakthrough in Cameroon’s Civil War?, dwkcommentaries.com (Nov. 27, 2019).)

[5] See Switzerland Mediation of Cameroon’s Anglophone Crisis, dwkcommentaries.com (Dec. 19, 2019). The Conclusion of this post referred to a December 18 report that Switzerland had abandoned this mediation, but this blogger has not found any other reference to this alleged abandonment of mediation.

[6] U.S. Reactions to Recent Developments in Cameroon, dwkcommentaries.com (Nov. 28, 2019).

Does Cuba Have a Right To Terminate the U.S. Lease of Guantanamo Bay?

Whether Cuba has a legal right to terminate its lease of Guantanamo Bay to the U.S. is an important issue that has been addressed by Michael J. Strauss, an expert in international relations with a specialty in territorial leases by states. [1] A prior post referred to his 2013 article that touched on this topic, and this post is based upon his more extensive discussion of the issue in his 2009 book and a 2014 article. His book also helps clarify the history regarding the amount of the rent charged to the U.S. under the lease. [2]

Does Cuba have a legal right to terminate the lease?

As the lease does not grant Cuba an express right of termination and as there has been no decision by a court or arbitrator on the validity of any other purported termination right, no definitive answer can be given as to whether Cuba has a legal right to terminate the lease. At least the following four theories have been suggested for such a result.

First, after the Revolution, Cuba asserted that the lease was perpetual and, therefore, invalid. For example, a 1970 book by the Cuban Ministry of Foreign Affairs asserted, “The contract for the lease in perpetuity . . . lacks existence and juridical validity because it is faulty in its essential elements: a) radical incapacity of the government of Cuba to cede a piece of national territory in perpetuity; b) for the same reason, the object and the reason are illegal; c) consent was wrested through irresistible and unjust moral violence.” (Book at 104, 171.)

Strauss, however, rejects the notion that the lease is perpetual. As noted in the prior post, the lease does not have a set termination date, unlike most U.S. leases (commercial and residential) and most leases “at the state level” (or “are otherwise open to termination by various means”). (Book at 106.) The absence of a termination date, however, does not mean that the lease is perpetual as most perpetual “leases [at the state level] . . . tend to explicitly [so] specify.” (Book at 107.)

Moreover, “the lease has had clearly stated conditions by which it can be ended.” The original 1903 lease was for “the time required for the purposes of [U.S.] coaling and naval stations.” And the 1934 treaty, reconfirming the lease, provided that it could be terminated by U.S. abandonment of Guantanamo Bay or by mutual agreement. (Book at 108, 215, 233.)

In addition, on two occasions after the Cuban Revolution, the U.S. has considered terminating the lease. One was in U.S. internal discussions about ways to resolve the Cuban Missile Crisis of 1962, but that idea was rejected internally and not publicly disclosed. (Book at 109-12.) The second was the idea’s incorporation in section 201 of the Helms-Burton (Libertad) Act of 1996 requiring the U.S. in order to provide assistance to a hoped-for free and independent Cuba to “be prepared to enter into negotiations . . . to return the [U.S.] Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” (Book at 112-14, 249-50.)

A second legal theory for Cuba’s termination of the lease is a fundamental change in circumstances (rebus sic stantibus) from the lease’s negotiation and signing in 1903 to today. This theory is covered by Article 62 of the Vienna Convention on the Law of Treaties and was discussed in the prior post. Strauss discusses the views on this issue by international legal scholars and notes the reluctance of international tribunals to invoke this ground. Another difficulty with this theory is the passage of time (over 112 years). As a result, Strauss does not see it as a winning approach for Cuba. (Book at 114-19.) Related to this theory is the 1970 argument by Cuba that the purpose of the lease had ceased to exist: the purpose of the 1903 lease (enable the U.S. to maintain Cuba’s independence and protect its people) was negated by the 1934 treaty’s emphasis on friendly relations between the two countries and that treaty’s purpose was negated by the hostile relations after the Cuban Revolution. (Book at 171.)

A third legal theory, also discussed in the prior post, would be the argument that the lease was procured by “the threat of force or use of force in violation of the principles of international law embodied in the [U.N.] Charter” under Article 52 of said Vienna Convention. That Convention, however, provides in Article 4 that it can be used only by states that are parties to the Convention and only after they became parties, and Cuba became such a party on September 9, 1998. Moreover, the U.N. was not in existence when the lease was signed in 1903. Nor, says Strauss, has “a new peremptory norm of general international law emerged” on this issue that could be a basis for a Cuban claim of a right to terminate the lease. (Book at 119-21.) This theory was put forward in 1970 as part of an argument advanced in a book by Cuba’s Foreign Ministry. (Book at 171.)

The fourth legal theory for a Cuban claim to a right to terminate would be based on alleged U.S. breach of the lease. This is covered by Article 60 of said Vienna Convention and is limited to a “material breach,” which for present purposes is “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Strauss discussed two possible grounds for this theory:

The lease restricts U.S. use of Guantanamo Bay to a “coaling station” or a “naval station,” and Cuba would have to argue and prove that the U.S. has exceeded those uses. Strauss is skeptical of such a general argument because the U.S. consistently has opted for a broad interpretation of these limitations with Cuba’s tacit agreement and because it should be difficult to satisfy the definition of “material” breach. However, the U.S. use of Guantanamo as a facility for detention of alleged terrorists after 9/11 and the U.S.’ alleged violations of the human rights of such detainees would be a stronger claim reinforced by consistent Cuban objections to such uses and by the remote possibility that Cuba could be subject to liability for any human rights violations at the Base. (Book at 121-23, 144-55, 174; Cuba Responsibility.)
In Article III of the second part of the 1903 lease the U.S. “agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within [Guantanamo].” The U.S. has clearly breached this provision by having a McDonald’s Restaurant and a bowling alley on the site, but it is difficult to see such ventures as a “material breach” of the lease. A stronger argument for such a claim could be built on the U.S.’ more recently having private-contractor employees participate in the interrogation and alleged abuse of detainees. Such an argument also ties in with the assertion that the U.S.’ use of Guantanamo as a detention facility and its alleged abuse of detainees constitutes a material breach of the lease. But do such breaches affect the object and purpose of the lease and thus constitute a material breech? (Book at 123; Private Sector; Cuba Responsibility.)

The Amount of the Rent

The original 1903 lease called for annual rent of $2,000 in gold coin for Guantanamo Bay and Bahía Honda without a breakdown for the two territories. Because the Guantanamo Bay territory constituted 94.5% of the total territory, the rent hypothetically could be divided on that basis, resulting in annual rent for Guantanamo of $1,890. This amount, argues Strauss, was “considerably higher than what any other party would have paid in 1903 for renting the same territory.” In other words, the rent was a material element, not a token or trivial amount. (Book at 126.)

In 1916, however, the U.S. presumably abandoned Bahía Honda, and the rent remained at $2,000 in gold coin, which in Strauss’ judgment was still in excess of the fair market value of the Guantanamo territory. (Book at 127.)

In 1933, at the start of the Great Depression, the U.S. left the gold standard, and the next year (1934), the U.S. Dollar was devalued with “the value of old U.S. gold dollars being fixed at $1.693125 in legal U.S. currency. The annual rent of $2,000 in gold for Guantanamo Bay, when converted at this rate, became $3,386.25. This was the amount the [U.S.] began paying annually to Cuba, by U.S. government check, starting in 1934.” This change was made unilaterally by the U.S. without a signed agreement with Cuba, which acquiesced in the change. (Book at 127-30.)

Similar changes were made unilaterally by the U.S. in 1973 with an increase of the annual rental check to $3,676.50 (based upon a 1972 revision in the value of the old U.S. gold dollar) and in 1974 to $4,085 (based upon a 1973 revision in the value of the old U.S. gold dollar). (Book at 130-31.) [3]

As mentioned in a prior post, since 1974 the $4,085 figure has continued to be used by the U.S. for the annual rental checks that have not been cashed by Cuba since the Cuban Revolution take-over of the government in 1959 (except for the first one in 1959). (Book at 136-37).

As Strauss recognizes, the rental amount has never been adjusted to reflect ever changing fair market values of the territory. As a result, the annual rental for at least the half-century after the Cuban Revolution has become a token payment. (Book at 131-32.)

=========================================================

[1] Strauss is Lecturer in International Relations at the Centre d’Etudes Diplomatiques et Stratégiques, Paris, specializing in territorial leases as phenomena of international relations and international law for resolving sovereignty disputes. Prior to entering academia, he was an international journalist and served as bureau chief for Agence France-Presse’s AFX News in Paris, Knight-Ridder Financial News in Madrid, and Dow Jones News Service in Geneva. He took his Ph.D. in International Relations and Diplomacy from the above Centre and his M.Sc. in Journalism from Columbia University, where he was an International Fellow in the School of International Affairs. He is the author of The Viability of International Leases in Resolving International Sovereignty Disputes: A Comparative Study.

[2] The Strauss article that was cited in the prior post is Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013) [hereafter “Cuba Responsibility”]. This post is based upon Strauss’ The Leasing of Guantanamo Bay (Praeger International 2009) [hereafter “the Book”] and U.S. Socialism in Cuba: Implications of Prohibiting the Private Sector at Guantanamo Bay, 24 Am. Soc’y for Study of Cuban Economy 129 (2014) [hereafter “Private Sector”]

[3] The earlier post erroneously asserted the $4,085 rental fee started in the mid-1930’s.