Tag: Human Rights Watch

U.S. Policy Implications of State Department’s Report on Cuban Human Rights

A prior post reviewed the U.S. State Department’s just-released 2013 Country Reports on Human Rights Practices while another post discussed its chapter on Cuba. Now we look at the implications of that report for U.S. policies regarding Cuba.

Some people assert that the negative aspects of Cuban human rights justify continuing U.S. hostility toward the island. They see the Cuban glass of human rights at least half empty. Notable among them is U.S. Representative Mario Díaz-Balart, a Cuban-American and a Republican Congressman from Miami, who remains a stalwart powerful defender of the embargo and other anti-Cuba policies of the U.S.

Others, including this blogger, reach the opposite conclusion based, in part, on the belief that the Cuban glass of human rights is half full.

Rev. Raul Suarez
Rev. Raul Suarez

As Rev. Raúl Suárez put it at the February 27th briefing for the U.S. Congress, “Cuba has many problems but Cuba isn’t hell . . . . We have many good things that have been achieved [but] . . . Cuba is not the Kingdom of God.” Suárez added, “God . . . wants us [Cubans and Americans] to live like brothers and sisters.”[1]

Indeed, the humility expressed by Rev. Suárez should lead the U.S. to the same conclusion. As U.S. Secretary of State John Kerry said last month on release of the Human Rights Reports, “from our own nation’s journey, we know that [human rights] is a work in progress. Slavery was written into our Constitution before it was written out. And we know that the struggle for equal rights, for women, for others – for LGBT community and others – is an ongoing struggle.” Secretary Kerry admitted that we  “know that we’re not perfect. We don’t speak with any arrogance whatsoever, but with a concern for the human condition.”

In evaluating Cuba’s mixed human rights record and deciding on U.S. policies regarding that country, that same humility should cause we in the U.S. to remember the U.S. immense superiority in economies and military might and the long-standing U.S. actions of hostility towards Cuba, including the following:

  • the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century (what we in the U.S. call the “Spanish-American War“);
  • the U.S.’ making Cuba a de facto U.S. protectorate in the early 20th Century;
  • the U.S. support for the invasion of Cuba’s Bay of Pigs in 1961;
  • the U.S. threats of military action against Cuba during the pressured Cuban missile crisis of 1962;
  • the CIA’s hatching several plots to assassinate Fidel Castro when he was Cuba’s President;
  • the U.S. conduct of an embargo of Cuba over the last 50-plus years; and
  •  the U.S. Government’s Commission on Assistance for a Free Cuba setting forth what amounted to a U.S. blueprint for taking over Cuba.

This history provides Cuba with many legitimate reasons to be afraid of the U.S. It, therefore, is understandable why Cuba has harshly treated what we call “dissidents” and what Cuba fears are or could be supporters of a U.S. takeover.

And we in the U.S. should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.

Cuba’s regrettable lapses on human rights, though perhaps understandable in context, should not be a reason for continued U.S. hostility toward the island.

Therefore, as a prior post argued, improving Cuban human rights should be one of many items on an agenda for a comprehensive, mutually respectful negotiation between the two countries. The objectives of such a negotiation, in my opinion, should be restoration of full diplomatic relations; ending the U.S. embargo against Cuba;[2] terminating the unjustified U.S. designation of Cuba as a “State Sponsor of Terrorism;” [3] terminating the one-sided U.S. lease of Guantanamo Bay; and compensating owners for expropriation of property on the island as part of the Cuban Revolution.[4]

Such a negotiation, in my opinion, is in the interest of the U.S. Cuba poses no threat to the U.S. Our businesses and farmers would benefit economically from open relations with Cuba. Normalizing our relations with the island would be seen by most people in the world, especially Latin America, as a sign that the U.S. is a mature, rational country.

These thoughts were echoed by the Cuban religious leaders who held a U.S. congressional briefing on February 27th. Joined by the President and CEO of Church World Service, [5] they reaffirmed their long-held opposition to the U.S. embargo of Cuba.

They also called “for the U.S. government to end the ban that prevents U.S. citizens from visiting Cuba and seeing the island for themselves; to take Cuba off the list of State Sponsors of Terrorism . . . ; and for the American government to open up trade and commerce in ways that support the small enterprises, cooperatives, and non-profits that are emerging on the island. Finally, the U.S. and Cuban governments ought to open a high level dialogue between our countries to normalize relations and discuss differences in ways that honor and respect the dignity of both nations.”

Before the commencement of such complicated negotiations, the U.S. President should commute the sentences of three of the Cuban Five to the 15-plus years they already have spent in U.S. jails and prisons and let them return to their home country. Similarly Cuba should commute the sentence of U.S. citizen Alan Gross to the time he already has spent in Cuban prison and allow him to return to the U.S.

Given the long period of hostility between the two countries and the apparent lack of movement toward negotiations, I believe that the assistance of a neutral third-party mediator would be helpful to both countries. Such a mediator, in my opinion, should be someone who is bilingual in English and Spanish with experience as an international mediator, who is in fact and perceived to be neutral and who has the time (and staff?) to make a major commitment to this process.

Such a mediator indeed could and should step forward and invite representatives of both countries to participate in mediated negotiations, rather than wait on them to agree on such a process.

——————————————

[1] Suárez is a Baptist pastor and the founder and director of the Martin Luther King, Jr. Center in Havana. When I visited the Center in 2007, Rev. Suárez told our group that he had founded the Center because he thought King’s philosophy of non-violence and social justice was relevant to Cuba, especially to Afro-Cubans. He also said that in 1984 he and other religious leaders met with then President Fidel Castro to protest the government’s endorsement of atheism (or scientific materialism) as limiting the space for churches, and after the collapse of the Soviet Union in 1989, Cuba abandoned that endorsement and provided more space for churches to participate in issues facing the island.

[2] Amnesty International, Human Rights Watch and former U.S. President Jimmy Carter also call for ending the U.S. embargo. So too does world opinion as evidenced by the U.N. General Assembly’s passing resolutions condemning the embargo for the last 22 years. The last such resolution in October 2013 was passed 188 to 2 with only the U.S. and Israel voting against it.  A prior post to this blog also has argued for ending the embargo and summarized the 2011 General Assembly resolution against the embargo.

[3] This blog has reviewed the State Department’s asserted rationale for the “State Sponsor of Terrorism” designation and called it ridiculous for 2010, 2011 and 2012 and absurd for 2013. This blog also noted Cuba’s adoption of legislation against money laundering and terrorism financing and thereby negating one of the purported reasons for the designation.

[4] In a letter to President Obama that was reproduced in this blog, I called for the U.S. to terminate the Guantanamo Bay lease and for Cuba to compensate property owners for expropriating their property. A comprehensive review of this lease is found in Michael J. Strauss’ The Leasing of Guantanamo Bay.

[5] Church World Service was founded in 1946 with this mission: “Feed the hungry, clothe the naked, heal the sick, comfort the aged, shelter the homeless.” It now has 37 Protestant member communions all over the world.

U.S. State Department’s Latest Report on Cuban Human Rights

U.S. Flag
U.S. Flag

The U.S. State Department’s just-released 2013 Country Reports on Human Rights Practices’ chapter on Cuba needs analysis.[1]

The Report’s Negative Comments about Cuban Human Rights

The Executive Summary of its chapter on Cuba has a strongly negative tone. It states the following:

  • “Cuba is an authoritarian state led by Raul Castro, who is president of the council of state and council of ministers, Communist Party (CP) first secretary, and commander in chief of security forces. The constitution recognizes the CP as the only legal party and ‘the superior leading force of society and of the state.’ A CP candidacy commission preapproved all candidates for the February uncontested National Assembly elections, which were neither free nor fair. The national leadership that included members of the military maintained effective control over the security forces, which committed human rights abuses against civil rights activists and other citizens alike.
  • In January the government largely dropped travel restrictions that prevented citizens from leaving the island, but these reforms were not universally applied, and authorities denied passport requests for certain opposition figures or harassed them upon their return to the country.
  • The principal human rights abuses were abridgement of the right of citizens to change the government and the use of government threats, extrajudicial physical violence, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly.
  • The following additional abuses continued: harsh prison conditions, arbitrary arrest, selective prosecution, and denial of fair trial. [2] Authorities interfered with privacy, engaging in pervasive monitoring of private communications. The government did not respect freedom of speech and press, severely restricted internet access and maintained a monopoly on media outlets, circumscribed academic freedom, and maintained significant restrictions on the ability of religious groups to meet and worship. The government refused to recognize independent human rights groups or permit them to function legally. In addition, the government continued to prevent workers from forming independent unions and otherwise exercising their labor rights.
  • Most human rights abuses were official acts committed at the direction of the government. Impunity for the perpetrators remained widespread.”

The Report’s Positive Comments about Cuban Human Rights

This Executive Summary paints a bleak picture of Cuban human rights, and I have no doubt that many of these points are legitimate. But I still believe that it overstates the negatives.

Indeed, the Executive Summary failed to acknowledge that the Report itself stated there were “no reports that the [Cuban] government or its agents committed arbitrary or unlawful killings . . . [or] politically motivated disappearances.”

In addition, the Report itself stated in Cuba that there was “no societal pattern of child abuse;” that the government operated family counseling centers; that the government “continued to carry out media campaigns” against domestic violence; that the government “actively promoted racial integration and inclusiveness;” that a government resolution “accords persons with disabilities the right to equal employment opportunities and equal pay for equal work;” and that there was no “discrimination officially reported or permitted based on sexual orientation” accentuated by President Castro’s daughter’s promotion of LGBT rights.

With respect to Cuba’s prisoners and pretrial detainees, the Report conceded that they “had access to visitors;” that many “were able to communicate information about their living conditions through telephone calls to human rights observers and reports to family members;” that they “could practice limited religious observance;” and that “the Catholic Church and the Cuban Council of Churches reported access to prisoners during the year, with services offered in prisons and detention centers in most if not all provinces.”

On Cuban religious freedom more generally, the Report merely incorporated by reference the section on Cuba in the Department’s most recent International Religious Freedom Report that this blog previously criticized as understating the extent of religious freedom on the island.[3]

Moreover, the new overall Human Rights Report admits that “religious groups reported greater latitude to express their opinions during sermons and at religious gatherings than in the past;” that “[r]eligious leaders in some cases criticized the government, its policies, and even the country’s leadership without reprisals;” that the “Catholic Church operated a cultural center in Havana that hosted debates featuring participants voicing different opinions about the country’s future, at which well-known dissidents were allowed to participate;” and that the “Catholic Church published two periodicals that sometimes included criticism of official social and economic policies . . . [and] a pastoral letter advocating for political and economic reforms and greater rights for citizens.”

The new overall Report also says that the “Catholic Church received permission to broadcast Christmas and Easter messages on state-run television stations . . . [while] the Council of Churches, the government-recognized Protestant umbrella organization, was authorized to host a monthly 20-minute radio broadcast;” that religious “groups reported the ability to gather in large numbers without registering or facing sanctions;” and that “[r]ecognized churches, [and] the Roman Catholic humanitarian organization Caritas . . . were . . . legally permitted to function outside the formal structure of the state, the [Communist Party], and government-organized organizations.” In addition, there were “no reports of anti-Semitic acts.”

Finally the Report concedes that the Cuban constitution and other laws prohibit abusive treatment of detainees and prisoners and provide alternative sentencing for nonviolent offenders and juveniles as well as rights to seek redress for improper prison conditions and treatment. Cuban law, the Report said, also specifies reasonable procedures for investigations and prosecutions of alleged crimes.

Conclusion

Cuba’s regrettable lapses on human rights, though perhaps understandable in context, should not be a reason for continued U.S. hostility toward the island. A subsequent post will examine what this blogger sees as the implications of this report for U.S. policies regarding Cuba.

[1] A prior post reviewed the Department’s overall summary of global human rights in 2013.

[2] The most recent annual report (May 2013) from Amnesty International makes similar allegations about Cuba as did Human Rights Watch’s April 2013 submission to the U.N. Human Rights Council regarding its Universal Periodic Review of Cuba.

[3] This blog criticized the prior reports on Cuban religious freedom by the State Department and by the U.S. Commission on International Religious Freedom. In addition, another post reviewed positive comments on religious freedom from religious leaders with direct experience on the island. Similar points were made on February 27th, 2014, by six Cuban Protestant Christian leaders at a congressional briefing hosted by U.S. Senator Jeff Flake (Republican of Arizona) and Representative Jim McGovern (Democrat of Massachusetts). In response, a strong supporter of current U.S. policies regarding Cuba launched an unwarranted ad hominem attack on these leaders.

 

Amending Spain’s Universal Jurisdiction Statute

Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.

Background

Under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. 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. (This was discussed in a prior post.)

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

Finally the 2009 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 were 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.

The New Amendment

On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:

  • The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
  • Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
  • Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.

There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:

  1. Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
  2. Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
  3. Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
  4. Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
  5. Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
  6. Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
  7. Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
  8. Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
  9. Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
  10. Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
  11. Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
  12. Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.

The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.

Indeed, on February 11th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”

Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.

Conclusion

Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.

In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.

The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.

Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.

I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)

Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime  by a Spanish court for something you allegedly did in the U.S. 10 years ago?

Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.

Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.

As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”

[1] This summary of Spain’s new amendment by a retired U.S. lawyer who is not an expert on Spanish law is based upon the English translation of the new law (Proposed Law on Universal Justice to amend the Organic Law 6/1985 of 1 July on the Judiciary on universal justice, No. 122/000136) and of Spain’s Congress’ press release about the bill and the following English-language sources and translations (from Spanish): Perez, High court to follow through on arrest warrants against top Chinese officials, El Pais in English (Feb. 7, 2014); Amnesty Int’l and 15 other Human Rights Organizations, Spanish Lawmakers Should Reject Proposal Aimed at Closing the Door on Justice for the Most Serious Crimes (Feb. 10, 2014);   Yardley, Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally, N.Y. Times (Feb. 10, 2014); Moffett, Spain’s Lower House Approves Law to Limit Judges’ Reach, W.S.J. (Feb. 11, 2014);  The twelve causes of ‘universal justice,’ El Mundo (Feb. 11, 2014); Molto, Tibet to universal justice: Chronicle of an announced impunity, El Pais (Feb.11, 2014); Kassam, Spain moves to curb legal convention allowing trials of foreign rights abuses, Guardian (Feb. 11, 2014).

[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.

Ecuador Continues To Restrict Freedom of the Press

On June 14, 2013, Ecuador’s national legislature adopted the Organic Law on Communications with the following provisions that threaten freedom of the press:

  • Prohibition of “media lynching,” which is defined as “a concerted effort, coordinated by several media or carried out by just one, to destroy a person’s honor or prestige.”
  • Establishment of “everyone’s right that information of public interest received through the media should be verified, balanced, contextualized and opportune” without defining those terms.
  • Establishment of media’s responsibility to accept and promote obedience to the Constitution, the laws and the legitimate decisions of public authorities.
  • Creation of the office of Superintendent of Information and Communication with the power to regulate the news media, investigate possible violations and impose potentially large fines.
  • Creation of the Council for Media Regulation and Development headed by a representative of the President with the power to exact a public apology (and impose fines for repeat offenses) when media fail to accord someone the right to a correction or the right of reply.
  • Retention of the system of “cadenas,” or official messages which all over-the-air TV and radio stations have to broadcast that the President and the National Assembly speaker may use whenever they think it necessary and that other public office holders may use for five minutes per week.

Another provision on the surface may appear to be non-controversial: a requirement for allocation of broadcast frequencies (state, 34%; private, 33%; and community, 33%). Currently an estimated 60% are privately owned. Therefore, this requirement is seen as a means of the government’s closing privately owned media, presumably those critical of the government.

Other provisions of the new law are more benign. It prohibits any form of censorship by government officials or civil servants, guarantees the right of journalists to protect their sources and to maintain professional confidentiality.[1]

Ecuadorian legislators opposing the Communications Law
Ecuadorian legislators opposing the Communications Law

This new law was strenuously challenged by the Ecuadorian legislators opposing the law, who said it will allow the government to control media through loosely defined regulations. (To the right is a photo of the objecting legislators with signs and masks over their mouths.)

Over 50 Colombian newspapers published a joint editorial condemning the law. Some Ecuadorian newspapers     (Hoy and El Commercio) had similar criticisms. Human Rights Watch said the law “is yet another effort by President Correa to go after the independent media. The provisions for censorship and criminal prosecutions of journalists are clear attempts to silence criticism.” The law also was criticized by the Inter-American Press Association, Reporters Without Borders and the Committee To Protect Journalists.

The law was defended by its author who is a member of President Correa’s political party and who said it will “protect freedom of speech with a focus on everybody’s rights, not just for a group of privileged.” Another member of that party who is the president of the legislature predicted that the law would promote more balanced news coverage.

In his TV and radio speech to the country on June 15th President Correa said that law was a precedent that other Latin American countries would follow. Critics of the law, he said, were members of the “gallada” or club that opposes any regulation of the media.

This is not the first effort by Ecuadorian President Rafael Correa to restrict the media. Such prior attempts have been protested by the previously mentioned NGO’s, the U.S. Department of State in its annual human rights reports and the Inter-American Commission on Human Rights.

The Commission’s criticisms have caused Ecuador to launch a full-scale attack on the Commission that was not successful this last past March, but that Ecuador promises to keep pursuing.

[1] This summary of the new law is based upon articles in an Ecuadorian newspaper (Hoy), the New York Times and the Wall Street Journal and a commentary by Reporters Without Borders. As always, I invite others to provide comments to correct any errors of mine and to express other opinions about the new law.

 

 

 

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

StateDeptlogo

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.

  1. 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]
  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.
  3. 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]
  4. 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]
  5. 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.

International Criminal Court: Other Developments

ICClogo

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).

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.

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.

Reactions to Judge Garzon’s Conviction

Yesterday’s post reported that on February 9th the Supreme Court of Spain, 7-0, convicted Judge Baltasar Garzon of prevarication (knowingly making an unjust decision) in the case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. Judge Garzon was sentenced to removal from the bench for 11 years plus a fine of Euros 2,500. According to El Pais, there is no right of appeal from this decision under Spanish law.

A subsequent article in El Pais provided additional details about the decision. The newspaper said that in a 69-page decision the court stated that Judge Garzon’s allowance of wire-tapping of attorney-client communications caused a “drastic and unjustified reduction in the defense’s strategy” and violated the constitutional rights of the accused corruption ringleaders. The decision of Judge Garzon was one “typical of totalitarian regimes,” the decision declared.

Later in the day Judge Garzon released a statement. It said,”I reject outright the judgment . . . .  I do so understanding that it does not comply with the law, which condemns me unfairly and unjustly . . . . I will use the appropriate legal channels to combat and mitigate the irreparable harm that the authors of this judgment have caused. . . . Throughout this process, my rights have been systematically violated; my requests for defense neglected; the trial was an excuse, with the content . . . only against me, regardless of the supporting elements that benefited me.” In addition, the statement said the court had prevented him from offering evidence showing that the “crime bosses” used their lawyers to launder money and that the judgment “does not say at any time what the damage was to the right of defense of the accused corruption ringleaders.

Moreover, Garzon’s attorney said that Judge Garzon felt an understandable “desolation and pain,” but was considering an appeal to Spain’s constitutional court or the European court of Human Rights.

Thousands of people gathered outside Spain’s Supreme Court building after the court’s decision was released to protest the ruling. A public opinion poll indicated that over 60% of the Spanish people thought Garzon was a victim of persecution and that the Spanish justice system had been adversely affected.

The International Commission of Jurists released a statement condemning the conviction. It said this decision “is the deplorable conclusion of a criminal proceeding that should have never been initiated in the first place. Garzón has been removed from the bench for interpreting the law and rendering a decision but whether or not one agrees with the interpretation and decision, this is precisely what being a judge is about. Applying a criminal sanction against a judge who is doing his job is a clear denial of judicial independence. The fact that the prosecutor had asked for the dismissal of the case and that several judges shared Garzón’s interpretation of the law shows by itself that the decision originally taken by Garzón could not be considered arbitrary. The context of this conviction is very worrying. Three proceedings have been opened against a judge who lifted the veil of amnesty protecting alleged crimes against humanity that have yet to be investigated. One might wonder to what extent this sentence is just a way to silence Garzón.”

Human Rights Watch said that this case along with the other two criminal cases against Garzon appear to be a “reprisal for his past actions against vested interests.”

Philippe Sands, a noted expert on international law at University College in London, said that “targeting an independent judge . . . thought the criminal justice system anywhere raises serious concerns.”

Spain’s justice minister, on the other hand, stated that it was not for the government to make a “political assessment” of the decision, except that it demonstrated “the normal functioning of our institutions.”

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 Garzon. In my next post I will more generally examine the reactions to all three of the criminal cases against Judge Garzon.