Tag: U.N.

The U.N. Human Rights Council

The U.N. Human Rights Council was created in 2006 by the U.N. General Assembly. It is “responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.” To that end, it is also responsible for addressing “situations of violations of human rights, including gross and systematic violations” and making “recommendations on them.” The Council is guided by “the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.”

To fulfill its mission, the Council has adopted at least four procedures or mechanisms.

One set of procedures is known as “Special Procedures,” which include special rapporteurs, special representatives, independent experts and working groups that monitor, examine, advise and publicly report on thematic issues or human rights situations in specific countries. One example is the Special Rapporteur on the Independence of Judges and Lawyers that was discussed in a prior post.

Another is a Complaint Procedure, which allow individuals and organizations to bring human rights violations to the attention of the Council.

Yet another is the Universal Periodic Review (UPR) mechanism which serves to assess the human rights situations in all 193 U.N. members. (The UPR process will be reviewed in a subsequent post about the Council’s UPR of the U.S.)

The Council also has established an Advisory Committee, which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues. In February 2012 this Committee adopted recommendations to the Council regarding (1) the rights of peasants, (2) the right to food, (3) human rights and international solidarity, (4) the right of peoples to peace, (5) terrorist hostage-taking, (6) promotion of human rights and fundamental freedoms through traditional values of humankind, and (7) enhancement of international cooperation in the field of human rights.

In May 2011, pursuant to the General Assembly resolution establishing the Council, a special working group reported on its review of the Council’s first five years. The report made modest proposed changes to the Council’s procedures and mechanisms. The U.S. expressed its disappointment in the report, with the U.S. stating the report resulted from “a process designed to be a race to the bottom.” According to the U.S., there needed to be “greater scrutiny of the human rights record of countries that offer themselves for election to the Council” and enhancement of the Council’s ability to take on country situations in a variety of formats, not limited to resolutions. Moreover, said the U.S., the Council’s most egregious flaw was its criticism of only one country, Israel.

The Council, whose office and meetings are in Geneva, Switzerland, has 47 member states that are chosen from U.N. member states for three-year terms by the U.N. General Assembly. (From 2006 through 2008 the U.S. in the George W. Bush Administration did not participate in the Council’s activities. Since then, however, the Obama Administration has done so, and the U.S. was elected to the Council in 2009 for a term ending at the end of 2012.)

The Council replaced the U.N. Commission on Human Rights that was established by the U.N. Economic and Social Council in 1946. The Commission’s first major task, under the Chairmanship of Eleanor Roosevelt, was the drafting of the Universal Declaration of Human Rights that was adopted by the U.N. General Assembly in 1948. During its first 20 years the Commission focused on establishing international human rights standards in various multilateral treaties. The Commission eventually had similar responsibilities and functions as the Council, but became subject to severe criticism for being too friendly with regimes that were violators of human rights.

Supplement to the Multilateral Treaty Against Torture

The multilateral treaty against torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or “CAT”) has been examined.[1]

 

CAT also has a supplement (the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). It created the Subcommittee on the Prevention of Torture with a mandate to visit places where persons are deprived of liberty in the States Parties. This Protocol also requires States parties to establish an independent national mechanism for the prevention of torture at the domestic level with a similar mandate to inspect places of detention. The Protocol’s purpose, as set forth in its Article 1, is to establish “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.”[2]

The Protocol was adopted by the U.N. General Assembly on December 18, 2002, and it entered into force on June 22, 2006.[3]

The Protocol, however, only has 61 States Parties (31.6% of U.N. members). The U.S. is not one of them. Here is the geographical breakdown of its States Parties:

  Yes No Total
Africa 11 36   47
Asia   6 45   51
Europe 26 19   45
Latin America/Caribbean 14 19   33
Middle East   4 11   15
North America   0   2     2
TOTAL 61 132 193

[1] See Post: The Multilateral Treaty Against Torture (Nov. 29, 2011).

[2]  U.N. High Commissioner for Human Rights, Committee Against Torture, http://www2.ohchr.org/english/law/cat-one.htm.

[3] Id.

U.S. Ratification of the Multilateral Treaty Against Torture

The U.S. procedures for ratification of multilateral treaties are complicated and not widely understood. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.

For the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), these procedures took 17 to 19 years and five presidencies before the U.S. had ratified the treaty and it went into force for the U.S.

1. U.S. Participation in the Preparation of the Torture Convention.

As we have seen, the U.N.’s preparation of this treaty started in 1975 with its actual drafting by the U.N. Commission on Human Rights from 1978 through early 1984. During this nine-year period the U.S. was one of 53 members of that Commission and in that role participated in the treaty’s preparation.[1]

U.S. diplomats also were active participants in the drafting process with the objective of obtaining an effective treaty on the subject that the U.S. would be able to ratify. As President Reagan said, the U.S. “participated actively and effectively in the negotiation of the Convention.”[2]

Similarly U.S. Secretary of State George Schultz noted that the U.S. “contributed significantly to the development of the final Convention, especially in proposing that [it] focus on torture, rather than on other relatively less abhorrent practices.” In particular, the Secretary reported that the U.S. was a strong supporter for Article 7’s providing that if a State finds someone who committed torture in another country and does not extradite him to that country, the first State “shall . . . submit the case to its competent authorities for t he purpose of prosecution.” This use of the principle of universal jurisdiction was “to prevent a loophole that would create potential safe-havens for torturers.”[3]

An outside observer said, the U.S. “was one of the moving forces in the adoption of the Convention . . . [and] was involved at all stages of the drafting process,” and “the final version . . . is largely consistent with positions taken by [the U.S.] . . . during that process.”[4]

2. U.S. Signing the Torture Convention.

Although the Convention was available for signature by states immediately upon its unanimous approval by the U.N. General Assembly in December 1984, the U.S. did not sign the treaty until over three years later.

During those three-plus years the U.S. Departments of State and Justice were engaged in negotiating a package of reservations and other conditions for U.S. ratification of the treaty. State advocated rapid signature; Justice, caution. Those negotiations apparently were not concluded until April 1988. The Department of State during this period also had discussions with the Senate Foreign Relations Committee staff on the subject of conditions for ratification.[5]

On April 18, 1988, John C. Whitehead, Deputy Secretary of State in the Reagan Administration, signed the Convention at the U.N. Whitehead said at signing that the treaty would be sent to the Senate for advice and consent to ratification with proposed reservations, understanding and declarations to resolve ambiguities and safeguard U.S. interests.[6]

3. U.S. President’s Submission of the Torture Convention to the U.S. Senate.

The next month, May 1988, the Reagan Administration submitted the treaty to the U.S. Senate for its advice and consent to ratification. President Reagan’s accompanying message said that U.S. ratification “will clearly express [U.S.] opposition to torture.”[7]

The accompanying letter from Secretary of State George Schultz said that the Administration would submit proposed legislation to implement the treaty. Such legislation, he said, was “needed only to establish [the Convention’s] Article 5(1)(b) jurisdiction over offenses committed by U.S. nationals outside the [U.S.] and to establish Article 5(2) jurisdiction over foreign offenders committing torture abroad who are later found in territory under U.S. jurisdiction.”[8]

With the treaty were the Administration’s proposed reservations, understandings and declarations for such Senate advice and consent.[9]

4. U.S. Senate Foreign Relations Committee’s Approval of the Torture Convention.

The Reagan Administration’s proposed 19 reservations and other conditions for ratification were criticized by the American Bar Association, human rights groups and others. As a result, nothing happened in the Senate over this treaty during the final months of the Reagan presidency in 1988.[10]

Shortly after President George H.W. Bush took office in January 1989, he indicated that the Convention Against Torture had higher priority for ratification than any other human rights treaty. President Bush then consulted with critics of the prior Administration’s proposed conditions and subsequently submitted a substantially reduced and revised set of proposed reservations and other conditions for the Senate’s advice and consent.[11]

Finally in January 1990 the Senate Foreign Relations Committee held hearings on the treaty. The Administration presented two witnesses: Abraham Soafer, Legal Advisor, Department of State, and Mark Richard, Deputy Attorney General, Criminal Division, Department of Justice. There also were five public witnesses, including Professor David Weissbrodt of the University of Minnesota Law School.[12]

On July 19, 1990, the Committee voted, 10 to 0 (all Democratic Senators), to recommend approval of the treaty by the entire Senate with three reservations, four understandings and two declarations. The nine Republican members of the Committee were not present for that vote due to other Senate business and later complained about the lack of notice of the Committee meeting while simultaneously expressing their support for ratification of the treaty.[13]

The August 30, 1990, Committee report on the treaty said the Convention was “a major step forward in the international community’s efforts to eliminate torture and other cruel, inhuman or degrading treatment or punishment. It “codifies international law as it has evolved . . . on the subject of torture and takes a comprehensive approach. . . .”  Its “strength . . .  lies in the obligation of States Parties to make torture a crime and to prosecute or extradite alleged torturers found in their territory.”[14]

5. U.S. Senate’s Approval of the Torture Convention.

On October 27, 1990, the Senate debated a resolution to approve the treaty. Democratic Senator Clairborne Pell of Rhode Island, the Chairman of the Foreign Relations Committee, introduced the resolution and offered four amendments that had been agreed to by the Republican minority members of the Committee headed by Senator Jesse Helms of North Carolina. These amendments were agreed to by the Senators present and voting. Thereafter a division of the Senate indicated that two-thirds of the Senators present and voting had voted in the affirmative for the resolution of ratification as amended.[15]

The resolution had the following two reservations:[16] (i) the U.S. considered itself bound by Article 16’s ban on “cruel, inhuman or degrading treatment or punishment” only insofar as the phrase means the cruel, unusual and inhumane treatment or punishment prohibited by the U.S. Constitution; and (ii) pursuant to Article 30(2) of the treaty, the U.S. did not regard itself bound by Article 30(1) whereby states agreed to arbitrate any disputes about the treaty while reserving the U.S.’ right to agree to arbitrate a particular dispute.[17]

The resolution had five understandings.[18] The most significant one related to Article 1’s definition of “torture” with the U.S. actually providing the following different definition:

  •  “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; (4) or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”[19]

The resolution also had two declarations.[20] The first stated that CAT was not self-executing, i.e., the treaty was not enforceable in U.S. courts unless there was implementing federal legislation. The second stated that the U.S. recognized the competence of the Committee Against Torture to receive and consider claims by another state that the subject state is not complying with the treaty only if the complaining state had made a similar declaration.

Finally the resolution had a “proviso” that the U.S. President shall notify all present and prospective ratifying parties to the Convention, prior to depositing the instrument of ratification, that the treaty did not require or authorize U.S. legislation or other action prohibited by the U.S. Constitution as interpreted by the U.S. This proviso prompted the most discussion during the Senate debate. It was insisted upon by Senator Helms, who called it the “Sovereignty Amendment.” Democratic Senator Daniel Patrick Moynihan of New York criticized the proviso after pointing out that the U.S. had included similar language in its ratification of the Genocide Convention, but as a reservation, and that various other countries objected to it because it made the U.S. obligations uncertain.[21]

6. U.S. Submission of Ratification Instrument to the U.N. Secretary-General.

As noted above, the Senate’s advice and consent is not the final step in the process of the U.S.’ becoming a party to a treaty. For a multilateral treaty like CAT, the President has to submit U.S. ratification to the U.N. Secretary General.

That did not happen during the George H.W. Bush Administration. The first President Bush said the U.S. could not do so until the U.S. had adopted “implementing legislation” that his Administration had proposed to put torturers “in the same international ‘extradite or prosecute’ regime we have for terrorists.” That legislation, however, was not adopted during that Administration.[22]

In the next Congress, however, such implementing legislation was introduced and enacted into law on April 30, 1994. This legislation added 18 U.S.C. §§ 2340, 230A, which made it a crime for a U.S. national or foreigner present in the U.S. to have committed torture outside the U.S.[23] There is no similar federal criminal law for committing torture within the U.S.; the U.S. has deemed such a law to be unnecessary as such acts would be covered by existing state and federal criminal laws.[24]

In accordance with the previously described “proviso” in the Senate’s approval of the treaty, on June 2, 1994, the Clinton Administration submitted a letter to the Secretary-General giving notice to all present and prospective ratifying Parties to the Convention to the effect that: “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”[25]

The actual U.S. deposit of its instrument of ratification of CAT happened on October 21, 1994, and the treaty went into force for the U.S. on November 20, 1994.[26] Four European states filed objections to some of the U.S. reservations and understandings to its ratification of the treaty.[27]

Conclusion

The seven to nine years it took for the U.N. to develop and approve CAT and the additional 10 years it took for the U.S. to ratify the treaty demonstrate the difficulties of achieving such a treaty, the multitude of opinions and different countries and groups that are involved and the importance of patience and persistence in the development of multilateral human rights treaties. Also significant in light of recent political developments in the U.S., there was consistent, persistent and bipartisan support in the U.S., during the period, 1975 through 1994, for policies to combat, outlaw and punish torture perpetrators.

[1] Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); U.N. High Commissioner for Human Rights, Commission on Human Rights, http://www2.ohchr.org/english/bodies/chr/membership.htm.

[2] U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Cong., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)(containing President Ronald Reagan, Message to the Senate Transmitting the Convention Against Torture and Inhuman Treatment or Punishment (May 20, 1988) [Reagan letter] and letter, Secretary of State Schultz to President Reagan (May 10, 1988)[Schultz letter]); U.S. Senate Comm. on Foreign Relations, Report on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Exec. Rep. 101-30 (101st Cong., 2d Sess. Aug. 30, 1990)[“Senate Comm. Report”]; Senate Debate on Approval of the Convention, 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990)(comments by Senator Pell); Weissbrodt, et al., Prospects for U.S. Ratification of the Convention Against Torture, 83 ASIL Proc 529 (1989)(comments by co-author Paul Hoffman)[“Prospects“].

[3] Id.

[4]  Id.

[5] Prospects (co-author James S. Reynolds discussed his involvement in the State-Justice negotiations; co-author Robert E. Dalton discussed his participation in the State-Senate Committee discussions).

[6] Reuters, U.S. Signs a U.N. Document That Seeks an End to Torture, N.Y. Times (April 19, 1988); U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Conf., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)[containing U.S. Statement Upon Signing Convention].

[7] Reagan letter.

[8]  Schultz letter.

[9]  Id.

[10] Weissbrodt at 140-41; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990) (comments by Senator Pell).

[11] Id.; Senate Comm. Report.

[12] U.S. Senate Foreign Relations Comm., Hearings on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (101st Cong., 2d Sess. Jan. 30, 1990).

[13] Senate Comm. Report.

[14] Id.; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[15] Id.

[16]  The term “reservation” in international law means “the formal declaration by a State, when signing, ratifying, or adhering to a treaty, which modifies or limits the substantive effect of one or more of the treaty provisions as between the reserving Sate and other States party to the treaty.” (14 M. Whitehead, Digest of International Law, § 7, at 137-38 (1970)[“Whitehead”].)  International law has substantial limitations on a state’s use of reservations to a treaty. (Vienna Convention on the Law of Treaties, arts. 19-23.)  See Weissbrodt at 128-32.

[17] Id.; U.S. Senate, Reservations, Understandings and Declarations to U.S. Accession to CAT, 136 Cong. Rec. S17486-92 (Daily ed. Oct. 27, 1990).

[18]  The term “understanding” in international law usually means “a statement when it is not intended to modify of limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or deal with some matter incidental to the operation of the treaty in a manner other than as a substantive reservation.” (Whitehead.) Merely calling something an “understanding,” however, does not make it so; if such a statement would exclude or vary the legal effect of any of a treaty’s provisions it would be a reservation subject to challenge. Indeed, Joan Fitzpatrick, a noted law professor, called the then proposed “understandings” with different definitions of “torture” and “cruel, inhuman or degrading treatment or punishment” as de facto and improper reservations. (Prospects (comments by co-author Fitzpatrick).)

[19] See n.17 supra.

[20] In international law the term “declaration” means a statement by the ratifying state “when it is considered essential or desirable to give notice of certain matters of policy or principle, without an  intention of derogating from the substantive rights or obligations [of the treaty].” (Whitehead.)

[21] 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[22]  George Bush Presidential Library & Museum, Statement on Signing the Torture Victims Protection Act of 1991 (March 12, 1992). The Administration had proposed legislation to implement the Convention by making it a crime for a U.S. national or a foreigner present in the U.S. to have committed torture outside the U.S. It passed the House of Representatives in October 1992, but it did not pass the Senate in this Congress. (1992 H.R. 6017; ProQuestCongressional, Bill Tracking Report, 1992 H.R. 6017.)

[23] Pub. L. 103-236, §506(a), 103rd Cong., 2d Sess. (April 30, 1994).

[24] Schultz letter. U.S. federal law does make it a crime to commit certain acts with “intent to torture” in the special maritime and territorial jurisdiction of the U.S. (18 U.S.C. § 114); to commit “genocide” by “torture” or other means (18 U.S.C. § 1001);to commit “murder”  in various ways, including through  “a pattern or practice of . . . torture against a child or children” (18 U.S.C. § 1111); and to commit “war crimes,”  one of which is “torture” (18 U.S.C. § 2441).

[26]  See n.1 supra.

[27] See n.24 supra. Finland, Germany, the Netherlands and Sweden objected to the U.S. reservation regarding “cruel, inhuman or degrading treatment or punishment” as being incompatible with the objects and purpose of the treaty. Germany, the Netherlands and Sweden also stated that the U.S. understandings did not affect U.S. obligations under the treaty. (Id.)

The Multilateral Treaty Against Torture

On December 10, 1984, the U.N. General Assembly unanimously adopted by resolution the text of a multilateral treaty against torture. Technically it is called the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under its Article 27(1), the treaty would go into force or effect 30 days after the 20th instrument of ratification or accession had been deposited with the U.N. Secretary-General. In fact, it went into force on June 26, 1987.[1]

CAT’s Article 1(1) defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”[2]

Under CAT, each State Party is obligated to (a) take steps to prevent acts of torture within its jurisdiction; (b) not to expel, return (“refouler“) or extradite a person to another state where there are substantial grounds to believe he would be in danger of being tortured; (c) to make acts of torture (and attempts and participation in torture) criminal offenses under its domestic laws; (d) to establish jurisdiction over offenses of torture that are committed on its own territory or on a ship or aircraft registered in that State, or by a national of that State, or when the victim is a national of that State, or when committed outside the State by a foreigner who is present in the State; (e) to investigate and prosecute individuals for alleged torture; (f) to train law enforcement and military personnel and others about the ban on torture; (g) to review and revise interrogation practices to prevent torture; (h) to provide legal remedies for victims of torture;  and (i) to exclude statements invoked by torture from evidence in any proceedings (except for cases for alleged torture).[3]

CAT in Article 2 bans two potential defenses to charges of torture. First, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” (Emphasis added.) Second, an “order from a superior officer or a pubic authority may not be invoked as a justification of torture.” (Emphasis added.)

Under CAT’s Article 16(1), each State Party is obligated ” to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

CAT in Articles 17 through 24 establishes a Committee Against Torture (CAT) of 10 independent experts who are elected by the parties to the treaty to monitor its implementation. All States parties are obliged to submit periodical reports to the Committee on how the treaty is being implemented in their countries. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.”[4]

The Committee may, under certain circumstances, consider individual complaints or communications claiming that their rights under the Convention have been violated, undertake inquiries and consider complaints by states. The Committee also publishes its interpretations of the treaty as “general comments” on thematic issues.[5]

Today 148 of the 193 members of the U.N. (76.7%) are parties to the CAT; a non-U.N. member (the Holy See) is also a party to CAT. One of those parties is the U.S. upon its ratification of CAT on October 21, 1994, which will be the subject of a future post.[6] Here is the geographical breakdown of the states that are and are not parties to this treaty:

Yes No Total
Africa 44   3   47
Asia 26 25   51
Europe 44   2   46
Latin America/Caribbean 22 11   33
Middle East 11   4   15
North America   2   0     2
TOTAL[7] 149 45 194

The development of the text of CAT began in December 1975 with the U.N. General Assembly’s adoption of two resolutions: one was the Declaration for the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the other asked the U.N. Commission on Human Rights to study the question of torture and how to enforce the Declaration on the subject. Two years later (December 1977) the General Assembly specifically requested the Commission to prepare a draft treaty on the subject.[8]

In February 1978 the Commission started its work on drafting the treaty. The Commission finished its work in March 1984 when it submitted its draft of the treaty to the U.N. Economic and Social Council for ultimate submission to the U.N. General Assembly.  The key issues addressed by the Commission in this process were revising the Declaration’s definition of “torture” and  deciding how a state could exercise jurisdiction over torture outside its territory committed by non-nationals and how to have international supervision of compliance with the treaty.[9]

Two months later (May 1984) that Council turned over the draft to the General Assembly through the latter’s Social, Humanitarian and Cultural Affairs Committee (commonly referred to as the Third Committee), which with some amendments approved the draft for the General Assembly in early December 1984. As noted above, the General Assembly on December 10, 1984, unanimously approved the Convention.[10]

The seven to nine years it took the U.N. to develop and approve this treaty might seem like an unnecessarily long time. However, to obtain international input and consensus through several U.N. bodies on an important subject like creating legal obligations regarding torture is a complicated process. For example, diplomats involved in the actual drafting and negotiating the language of a draft treaty are interacting with other countries’ representatives in multiple languages on multitudes of issues. In addition, each country’s diplomats need to report developments to their superiors in the capitols of the world and to obtain new instructions. Thus, it should not be surprising to take seven to nine years to accomplish these tasks.

[1] CAT, http://www2.ohchr.org/english/law/cat.htm; David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 140-41 (4th ed. 2009).

[2] Id.

[3] CAT, Arts. 2(1), 3(1), 4(1), 5(1), 7(1), 10(1), 11(1), 12, 13, 14, 15.

[4] U.N. High Commissioner for Human Rights, Committee Against Torture, http://www2.ohchr.org/english/bodies/cat/index.htm.

[5]  Id.

[7]  There are 193 members of the U.N., and one non-member of the U.N. (the Holy See) is a Party to the Torture Convention. Thus, the total number of states in the table is 194.

[8]  Audiovisual Library of International Law, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html; J. Herman Burgens, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht; Boston, 1988); Manfred Nowak & Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary at 3-7 (Oxford Univ. Press; Oxford, 2008). The history of the development of a treaty on torture goes back even further, to at least 1948’s Universal Declaration of Human Rights, if not earlier. (Id.)

[9] Id.

[10]  Id.

International Criminal Court: Recent Developments in the ICC’s Libyan Investigation and Cases


International Criminal Court Building

Pursuant to referral by the U.N. Security Council, the ICC’s Office of the Prosecutor (OTP) has been investigating the situation in Libya since February 15, 2011, for possible crimes within the Court’s jurisdiction and has obtained arrest warrants for three Libyans for crimes against humanity: Muammar Mohammed Abu Minyar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi.[1]

This August a revolt pushed Muammar Qaddafi from power, and on October 20th he was killed as rebels finally wrested control of his hometown of Surt. The country was formally declared liberated three days later, setting in motion the process of creating a new constitution and an elected government.

The death of Muammar Qaddafi has set in motion the formal procedures to withdraw his arrest warrant and terminate that case. But the other two suspects are still at large, and the OTP is continuing to pursue efforts to secure their arrests and to gather evidence on these alleged crimes. Indirect communications with the suspects have been conducted to seek their surrender to the Court.[2]

The OTP also is searching for the personal assets of the suspects for the potential benefit of the victims through reparations that could be awarded by the Court. The OTP had sent requests to Libya, ICC States Parties and the five U.N. Security Council members who are not States Parties (including the U.S.) to identify, trace, seize and freeze such assets.[3]

In addition, the OTP is investigating other possible Libyan crimes within the ICC’s jurisdiction, including the following:

  • Alleged rape and other sexual violence by Qaddafi forces.
  • The National Transitional Council’s security forces’ alleged mass arrests, detention and abuse of black Africans who are suspected of being pro-Qaddafi mercenaries.
  • The National Transitional Council’s alleged mistreatment and torture of captured Qaddafi soldiers, suspected loyalists and alleged mercenaries.
  • Alleged disproportionate use of force by all parties.
  • Alleged indiscriminate attacks on civilians by NATO forces.[4]
U.N. Security Council
When the Prosecutor made his second report on Libya to the U.N. Security Council earlier this month, the U.S. Ambassador to the U.N., Susan Rice, complimented the Prosecutor “for his informative briefing and for his important contributions to laying the foundation for seeking the justice that Libyans so deserve.”  The Council’s referral of the Libyan situation to the Court, she also said, “represented an historic milestone in the fight against impunity.”[5]

[1] Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Potential Arrests of Three Libyan Suspects (Aug. 22, 2011); Post: International Criminal Court: ICC Prosecutor Seeking INTERPOL Red Notices for Gaddafi (Sept. 9, 2011).

[2] ICC, Second Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (Nov. 2, 2011); ICC Prosecutor, Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011) (Nov. 2, 2011).

[3]  Id.

[4] Id.; Post: International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011).

[5] U.S. Mission to the U.N., Remarks by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, at a Security Council Meeting on Libya and the International Criminal Court (Nov. 2, 2011); U.N. Security Council Press Release, International Criminal Court Prosecutor Briefs Security Council on ‘Libya Case’ (Nov. 2, 2011).

 

 

U.N. General Assembly Again Condemns U.S. Embargo of Cuba

On October 25, 2011, the United Nations General Assembly debated a resolution: “Necessity of ending the economic, commercial, and financial embargo imposed by the United States of America against Cuba.” It passed, 186 to 2 with 3 abstentions. Only Israel joined the U.S. in opposition while three small  Pacific island nations – Palau, Marshall Islands, and Micronesia – abstained.[1]

During the debate, the Cuban Foreign Minister Bruno Rodriguez said that the sanctions have caused direct economic damages of close to $1 trillion to the Cuban people over nearly half a century. In response, the U.S. Senior Area Adviser for Western Hemisphere Affairs, Ronald D. Godard, said the embargo is a bilateral issue and “not appropriately a concern of this assembly.” Godard added that the sanctions represent “just one aspect of U.S. policy toward Cuba, whose overarching goal is to encourage a more open environment in Cuba and increased respect for human rights and fundamental freedoms.”

Before this year’s vote the U.N. Secretary-General, pursuant to a provision of last year’s resolution on the subject, invited U.N. members and agencies to comment on the embargo for a report by the Secretary-General. [2] Of the 193 U.N. Members, 142 (of 73.6%) responded, all criticizing the embargo as did the 20 U.N. agencies that replied; the U.S. and Israel did not comment. [3] Here are some of the strongest statements on the subject:

  • Australia. “Since 1996, the Government of Australia has consistently supported General Assembly resolutions calling for an end to the trade embargo against Cuba. Australia has no trade or economic legislation or measures which restricts or discourages trade or investment to or from Cuba.”
  • Brazil. “The Brazilian Government has consistently opposed the economic, commercial and financial embargo imposed against Cuba. Accordingly, Brazil has also continued to foster and pursue a growing economic relationship with Cuba. . . . The maintenance of the economic, commercial and financial embargo against Cuba is inconsistent with the dynamic regional policy that has recently been marked by the return of Cuba to dialogue and cooperation forums of the Americas.”
  • China. “This [embargo] is not only a serious violation of the purposes and principles of the Charter of the United Nations and of relevant United Nations resolutions, but also a source of immense economic and financial losses for Cuba. It is an impediment to efforts by the Cuban people to eradicate poverty, to promote their economic and social development and to attain the Millennium Development Goals, it impairs the Cuban people’s right to survival and development, and it adversely affects normal economic, commercial and financial relations between Cuba and other countries.”
  • European Union. “…the European Union and its member States have been clearly expressing their opposition to the extraterritorial extension of the United States embargo, such as that contained in the Cuban Democracy Act of 1992 and the Helms-Burton Act of 1996.”
  • Holy See. “The Holy See has never drawn up or applied economic, commercial or financial laws or measures against Cuba.”
  • Japan. “Japan shares the concern, arising from the . . . (the Helms-Burton Act) and the Cuban Democracy Act of 1992, that, if application of such legislation causes undue hardship in relation to the economic activities of the enterprises or nationals of a third party, the legislation is likely to run counter to international law regarding the extraterritorial application of domestic laws.”
  • Mexico. “Mexico emphasizes that [the embargo] has serious humanitarian consequences that are contrary to international law and, moreover, signify the abandonment of diplomacy and dialogue as the appropriate ways of settling disputes between States. . . . The Government of Mexico has also consistently opposed Cuba’s economic and political-diplomatic isolation. It has therefore firmly supported Cuba’s inclusion in all regional integration machinery in order to promote economic and commercial exchange, cooperation and development.”

This is the twentieth straight year the General Assembly overwhelmingly has adopted a resolution condemning the U.S. embargo. In 2010, for example, a resolution that called upon the U.S. to repeal the embargo was approved by 187-2, again with only Israel joining the U.S. in opposition and the same three Pacific island nations abstaining.

Here are some of the reasons why the U.S. should end the embargo:

  1. The embargo undermines U.S. foreign policy interests. It undermines the empowerment of Cuban citizens, harming them economically and depriving them of choices that could emerge from greater U.S. engagement with Cuba. (Steve Clemons, Washington Editor-at-Large, The Atlantic and Senior Fellow & Founder, American Strategy Program, New America Foundation.)
  2. The embargo hurts U.S. national security interests . It prevents normal trade and travel between our two countries. It prevents cooperation with Cuba on common security issues such as crime and terrorism. It hurts U.S. standing throughout the world by highlighting our aggression against a neighboring country that poses no threat. (John Adams, Brigadier General US Army (Retired).)
  3. The Cuba embargo runs counter to our experiences with China and Viet Nam. Both countries have Communist systems, and we fought a war with Viet Nam. Yet we trade with both. (John R. Block, Secretary of Agriculture under President Ronald Reagan and officer with Olsson Frank Weeda Terman Bode Matz PC0.)
  4. The embargo isolates the U.S. government and cuts off contact between Cubans and Americans . The embargo isolates and weakens U.S. policy makers and U.S. policies at a time of increasing integration between Latin America and the Caribbean and the global south. U.S. citizens are denied ready access to highly praised Cuban achievements in the arts and culture, education, medical and technological advances, and deprived of sustained engagements with Cuban citizens and the Cuban government to share our national virtues. (James Early,Trustee, Institute for Policy Studies, and Director of Cultural Heritage Policy, Smithsonian Center for Folklife and Cultural Heritage.)
  5. The embargo undermines the image of the United States throughout the world. The embargo is senseless and irredeemable. It is the act of a bully, based on pique. It is an abysmal moral and political failure, diminishing not Cuba but the U.S. in world opinion and respect. It has achieved the opposite of what it has sought, hurting both the Cuban people as well as U.S. interests. The embargo is opposed by virtually the entire world as well as large domestic majorities, even Cuban exiles and dissidents; yet, the U.S. government persists with its petty punitive policy, not out of reasoned principle but for internal political posturing. (Rubén G. Rumbaut, ENCASA/US-CUBA, University of California, Irvine.)
  6. The embargo imposes great suffering on Cubans . The embargo continues to inflict gratuitous and pointless suffering on the Cuban people. Children dying from cancer are denied access to potentially life-saving drugs, heart patients cannot get U.S. manufactured pace-makers, and Cuba’s cutting-edge biotechnology institutes that provide important drugs at an affordable price to the rest of the world are denied the U.S. substrates they need. (Peter Bourne, Chairman of the Board, Medical Education Cooperation with Cuba (MEDICC).)
  7. The embargo hobbles our ability to protect the environment . Oil drilling in Cuban waters creates an unprecedented urgency to rethink U.S. policy toward Cuba. An oil spill in Cuba could be disastrous to shorelines, marine life, coastal communities and livelihoods in both countries. The U.S. should eliminate political and legal obstacles that hinder its ability to share expertise if an emergency occurs in shared waters. The Obama Administration has taken some positive steps to promote scientific exchange and dialogue on environmental protection with Cuba. Environmental diplomacy-done right and carried out in good faith-can lay a foundation for real and lasting improvement in Cuba-U.S. relations. (Daniel Whittle, Senior Attorney and Cuba Program Director, Environmental Defense Fund.)
  8. The embargo is not about principle; it’s about politics . The embargo is an international embarrassment to a country that continues to claim leadership in the realm of human rights. An unnecessary and sickening relic of the Cold War, the embargo has become a political football proving that elections – and electoral votes – mean more to American politicians than fairness, justice, the human needs of the Cuban people or the lives, health and education of Cuban children. (Mike Farrell, Actor and human rights advocate.)
  9. Ending the embargo would be doing the right thing. It is time for President Obama and Congress to do the right thing, cast off the failed embargo of Cuba, and embrace a policy of engagement that will provide economic opportunities for U.S. farmers and businesses as well the workers they employ. Doing the right thing will improve economic conditions in both the U.S. and Cuba and will also over time contribute to greater social stability in the Caribbean region. (Cal Dooley, President and CEO, American Chemistry Council.)
  10. 10.   Ending the embargo is long overdue . Lifting the U.S. embargo against Cuba is long overdue. (Katrin Hansing, Associate Professor of Black and Hispanic Studies at Baruch College (CUNY).)

[1] Assoc. Press, UN Condemns US Embargo of Cuba–Again, N.Y. Times (Oct. 25, 2011); Latin America Working Group, UN Cuba Vote–Happy 20th Anniversary (Oct. 25, 2011); CubaCentral Newsblast (Oct. 21, 2011). See also Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 2011); Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011); Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots for Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011); Comment: Obama and Romney Out of Touch on Cuba Oct. 15, 2011); Post: U.S. and Cuba Discuss Exchange of Prisoners (Oct. 14, 2011); Comment: Cuban-Americans in Congress Criticize U.S. Willingness To Discuss Issues with Cuba (Oct. 15, 2011).

[2] U.N. Gen. Assembly Res. 65/6 (Nov. 23, 2010).

[3] Report of U.N. Secretary-General, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba (Aug. 16, 2011).

International Criminal Court: Potential Arrests of Three Libyan Suspects

As previously reported, the International Criminal Court (ICC), pursuant to U.N. Security Council authorization, has been investigating the situation in Libya and already has issued three arrest warrants, including Muammar Gaddafi.[1]

Recent gains by Libyan rebels have reportedly resulted in the arrest of one of the three suspects wanted by the ICC, Saif Al-Islam Gaddafi. Today the ICC Prosecutor spoke with officials of the Libyan Transitional National Council (TNC) and emphasized his mandate to investigate and prosecute those charged with crimes by the ICC. They discussed the possibility of the apprehension and surrender to the ICC of the three suspects as well as the possibility of their being prosecuted and tried in Libya.[2]

The ICC seeks to encourage national judicial systems’ investigating and prosecuting individuals accused of genocide, crimes against humanity and war crimes under what is known as the principle of complementarity. For this principle to be invoked in the Libyan situation, the ICC itself would have to conclude, under Article 17 of its Rome Statute, that Libya had a functioning national judicial system that was able to provide principles of due process recognized by international law and that any proceedings against the three or other suspects were not undertaken to shield them from criminal responsibility or with the intent not to bring them to justice.

In this still developing situation, it is conceivable that the U.N. Security Council, pursuant to Article 16 of the Rome Statute, could adopt a resolution under Chapter VII of the U.N. Charter directing the ICC to suspend proceedings for renewable periods of 12 months. This scenario seems unlikely at this time.

The United States could play an important role in urging the relevant officials to transfer any Libyan suspects to the ICC. While President Obama did not mention the ICC in his statement released earlier today, he did indicate that “we will continue to work with our allies and partners in the international community to protect the people of Libya, and to support a peaceful transition to democracy.” [3] The unanimous referral of the Libya situation to the ICC by the Security Council, including the United States, was an important action by the international community to protect the people of Libya and one which the U.S. has continued to support since the referral.

I, therefore, urge others to sign a petition asking President Obama to assist the ICC arrests of Col. Gaddafi and the Libya suspects: http://www.change.org/petitions/ask-president-obama-to-help-the-international-criminal-court-arrest-gaddafi. Hearing from the U.S. supporters of the ICC will help President Obama understand the importance of international justice for the serious alleged crimes in Libya and to build international support for ensuring that no suspects escape justice.

[1] See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: The International Criminal Court: Investigation of Gand-Rape in Libya (May 17, 2011); Post: The International Criminal Court: Issuance of Three Libyan Arrest Warrants and Other Developments (June27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011).

 

[2] ICC Press Release, ICC Prosecutor Talks to Transitional National Council in Libya (Aug. 22, 2011), http://www.icc-cpi.int.

 

[3] Statement of President Barack Obama on Libya (Aug. 22, 2011), http://www.whitehouse.gov/the-press-office/2011/08/22/statement-president-barack-obama-libya.

Refugee and Asylum Law: Office of the United Nations High Commissioner for Refugees

 
In the modern era, the principal U.N. agency responsible for refugees is the Office of the United Nations High Commissioner for Refugees (UNHCR) in Geneva, Switzerland.[1]

The UNHCR was established by U.N. General Assembly Resolution 28(v), December 14, 1950 (after the Universal Declaration of Human Rights, but before the signing of Convention Relating to Status of Refugees). This Resolution adopted the Statute for the UNHCR that charges the agency with “providing international protection . . . to refugees . . . and . . . seeking permanent solutions for the problem of refugees by assisting Governments and . . . private organizations to facilitate         the voluntary repatriation of such refugees, or their assimilation within new national communities.” The Statute also contained a definition of “refugee” that was similar to the one set forth in the subsequent Convention Relating to the Status of Refugees. This definition states a “refugee” is

  • “Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reason other than personal convenience, is unwilling to avail himself of the protection of that country . . . .”

To fulfill this mandate UNHCR “strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, and to return home voluntarily. By assisting refugees to return to their own country or to settle permanently in another country, UNHCR also seeks lasting solutions to their plight.” It also publishes a handbook on procedures and criteria for determining refugee status and guidelines on common issues that have arisen in such determinations.[2]

The UNHCR now is concerned with refugees, 80% of whom are in poorer, developing countries,  and certain other individuals in the world. As of January 2010, it was concerned with the welfare of the following people:

Category Number
Refugees 10,397,000
Asylum seekers      983,000
Returned refugees      251,000
Internally Displaced People 15,628,000
Returned IDPs   2,230,000
Stateless persons   6,560,000
Other       412,000
TOTAL  36,460,000

 

[1] This post is based upon the UNHCR website: http://www.unhcr.org/cgi-bin/texis/vtx/home.

[2]  One example of these publications is UNHCR Guidelines on International Protection No. 1: “Gender-Related Persecution,”  (May 7, 2002), http://www.unhcr.org/3d58ddef4.html.

 

Refugee and Asylum Law: The Modern Era

As previously indicated, the history of refugees and asylum, in my opinion, may be divided into two major periods: the pre-modern era (before the adoption of the Universal Declaration of Human Rights in 1948) and the modern era (after that adoption).[1] We now examine that Declaration and its implementation in the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.

Universal Declaration of Human Rights

The United Nations Charter, which entered into force on October 24, 1945, created the Economic and Social Council in Chapter X. Under Article 68 of the Charter, this Council was to establish a commission for the promotion of human rights.[2]

In early 1946 this Council created a committee to make recommendations on the structure and functions of such a commission. Eleanor Roosevelt, the widow of U.S. President Franklin D. Roosevelt, and eight others were appointed to this committee, and she was elected its chair. It recommended that the first project of the new commission should be the writing a bill of human rights. Thereafter, in June 1946, the Council created the U.N. Human Rights Commission and directed it to prepare an international bill of human rights.[3]

In January 1947 the Human Rights Commission held its first meeting and elected Eleanor Roosevelt as its chair.[4]

At the Commission’s June 1947 meeting Great Britain proposed preparing a covenant or treaty of human rights, rather than a declaration full of high-sounding generalities. The U.S., however, favored a broad declaration followed by treaties. The U.S. position appears to have been a strategy to avoid the U.S. Senate ratification process that constitutionally was necessary for ratification of treaties, but was not required for U.S. voting in the U.N. General Assembly. Remember that President Truman was heading into the 1948 presidential election and did not want to provoke a Senate vote he might lose. In any event, the Commission decided to work on both a declaration and covenants.[5]

In December 1948 (only one month after Truman won the presidential election), the U.N. General Assembly adopted the Universal Declaration: 48 in favor (including the U.S.); 0 against; 8 abstentions (the USSR and its allies, South Africa and Saudi Arabia); and 2 absences.[6]

Eleanor Roosevelt & UDHR

The Declaration had two important provisions relevant to refugees and asylum. Its Article 13(2) stated, “Everyone has the right to leave any country, including his own, and to return to his country.” Article  14(1) went on to say, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Emphasis added.)[7]

Even though the Declaration was not a treaty that created legal obligations for subscribing states, its declaring that every individual human being had a right to asylum was a historic departure from the pre-modern era where asylum was a matter of discretion for the protecting state. This provision also set an objective for the treaty on refugees then being formulated. These provisions of the Universal Declaration, in my opinion, also constitute an atonement for the failure of the civilized world in the 1930’s to protect German Jewish refugees.

In any event, ever since its adoption, the Universal Declaration has set the agenda for the subsequent development of international human rights treaties. The Declaration also continues to act as an inspirational and aspirational document throughout the world, as I discovered on my first visit to El Salvador in April 1989.[8]

Convention Relating to the Status of Refugees

 

On July 2, 1951, an international conference in Geneva, Switzerland concluded with the signing of the Convention Relating to the Status of Refugees by the conference attendees and the opening of the treaty for accession or ratification by nation states.[9] By its Article 43(1) it was to enter into force or become a binding treaty 90 days after the sixth state had acceded or ratified the treaty. That happened on April 22, 1954.[10]

Its preamble noted that the U.N. had “manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of . . . fundamental rights and freedoms.” The preamble also stated, “the grant of asylum may place unduly heavy burdens on certain countries, and . . . a satisfactory solution of a problem . . . [of] international scope and nature cannot therefore be achieved without international cooperation.”

This treaty adopted the following definition of “refugee” in Article 1(A)(2) as any person who:

  • “[As a result of events occurring before 1 January 1951] and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The bracketed phrase [“As a result of events occurring before 1 January 1951”] was the provision that limited the coverage of the Convention to the problems still being faced by many World War II refugees still scattered across Europe. This limiting phrase was eliminated in the Protocol Relating to the Status of Refugees discussed below.

Excluded from the definition of “refugee” in Article 1(F) was “any person . . . [who] (a) . . . has committed a crime against peace, a war crime or a crime against humanity . . . ; (b) . . . has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [and] (c) . . . has been guilty of acts contrary to the purposes and principles of the [U.N.].”[11]

The Convention granted refugees certain rights within a country of refuge as well as imposing on them certain obligations. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their “illegal entry or presence.” This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.

Importantly, the Convention contains various safeguards against the expulsion of refugees. Its Article 33(1) states, “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Protocol Relating to the Status of Refugees

By 1966, it had become apparent that new refugee situations had arisen since the Refugee Convention had been adopted and that all refugees should enjoy equal status. As a result, a new treaty was prepared to eliminate the previously mentioned limitation of the Convention to those refugees created by pre-1951 events. This was the Protocol Relating to the Status of Refugees that went into force on October 4, 1967.[12]

Parties to the Convention or Protocol

As of April 1, 2011, there were 145 nation states (and the Holy See) that were parties to the Convention and Protocol or the latter, including the U.S. That represents 76.2% of the U.N. members (plus the Holy See).[13]

Conclusion

In subsequent posts we will review (a) the work of the principal U.N. agency concerned with refugees (the Office of the United Nations High Commissioner for Refugees); (b) U.S. law and procedures for refugees; and (c) U.S. law and procedures for asylum.

[1]  See Post: Refugees and Asylum Law: The Pre-Modern Era (July 7, 2011).

[3] See Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House 2002)(fascinating history of the development of the Universal Declaration).

[4] Id.

[5] Id.

[6]  Id.

[8]  See Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

[9] UNHCR, 1951 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, http://www.unhcr.org/cgi-bin/texis/vtx/search/?page=&comid=3c07a8642&cid=49aea9390&scid=49aea9398.

[10]  UNHCR, Convention and Protocol Relating to the Status of Refugees, http://www.unhcr.org/3b66c2aa10.html; UNHCR, The 1951 Refugee Convention: Questions and Answers (2007), http://www.unhcr.org/3c0f495f4.html.

[11] There are certain other stated exclusions from the definition of “refugee” in Article 1(C), (D), (E).

[12] Id.

[13]  UNHCR, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol,        http://www.unhcr.org/3b73b0d63.html. In addition Madagascar and St. Kitts & Nevis are parties only to the Convention with its now outmoded temporal limitations. (Id.)

 

International Criminal Justice: Libya, Sudan, Kenya, Rwanda and Serbia Developments

Over the last several weeks there have been important developments regarding the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).

ICTR.

As we already have seen, the ICTR is winding down to complete its work by July 1, 2012, and one of the ways it is doing so is referring some cases to national judicial systems.[1] On June 26th, the ICTR referred one of its cases to the Rwandan national courts, the first time it had ever done so. It did so because there was evidence that Rwanda had made material changes to its laws and now had the capacity and intention to prosecute such cases in accordance with international standards of fair trial and human rights. The ICTR suggested that the African Commission on Human and Peoples Rights monitor the proceedings and notify the ICTR of any problems for its possible revocation of the referral.[2]

On June 24th the ICTR announced the conviction of six defendants in the Butare case for genocide and related crimes. They received sentences from 25 years to life.[3]

Finally the recently arrested Bernard Munyagishari made his initial appearance before the ICTR and pleaded not guilty to charges of genocide, conspiracy to commit genocide and crimes against humanity (murder and rape) of Tutsi women.[4]

ICTY.

On June 29th the U.N. Security Council unanimously adopted Resolution 1993 to extend the terms of office of the ICTY judges until December 31, 2012. It did so to facilitate the ICTY’s completing the trial of all of its pending prosecutions. The resolution also called for all States, especially the States of the former Yugoslavia, to intensify cooperation with, and assistance to, the ICTY, including the arrest of Goran Hadzic.[5]

On July 4th Ratko Mladic made his initial appearance before the ICTY and refused to enter pleas  because he said he was not represented by lawyers of his choice. After he had repeatedly and loudly interrupted the proceedings, the judges ordered him removed from the courtroom and thereafter entered pleas of not guilty on his behalf. He faces charges of genocide and war crimes.[6]

ICC

There have been significant developments regarding the Libyan, Sudan (Darfur) and Kenyan  investigations and prosecutions by the ICC. Many of these developments involve the ICC’s tense relations with the African Union (AU) as will be seen below.

Libya. As previously reported, the ICC on June 27th authorized the issuance of arrest warrants for Colonel Muammar Gadhafi and two others for crimes against humanity in Libya since February 15, 2011. The ICC Prosecutor has emphasized the importance and difficulty of making the actual arrests of these three individuals.[7]

On July 2nd the execution of these ICC arrest warrants was made even more difficult by a resolution adopted by the AU. It recommended that its 53 member-states “not cooperate in the execution of the arrest warrant” for Colonel Gadhafi.  This warrant, the AU said, “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation.” This decision increases the chances for Gadhafi to avoid ICC prosecution by obtaining refuge in another African country. The AU also requested the U.N. Security Council to exercise its authority under Article 16 of the ICC’s Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Libya for one year.[8]

This AU resolution conflicts with the obligations of the 32 African states that are parties to the ICC’s Rome Statute. Its Article 86 obligates them to “cooperate fully with the Court in its investigation and prosecution of crimes within [its] jurisdiction.”

Sudan. Pursuant to U.N. Security Council referral, the ICC Prosecutor has been conducting investigations and prosecutions regarding the Sudan (Darfur). One of the prosecutions has been of the Sudanese President Bashir.[9]

The just noted inherent difficulties of enforcing ICC arrest warrants has also been in the news with respect to the recent trip to China by President Bashir.[10] His earlier trips to other African countries (Chad, Kenya and Djibouti) that are ICC States Parties have been defended by the AU as consistent with these countries’ obligations under the AU’s Constitutive Act and Article 98 of the Rome Statute as well as their efforts to promote peace and stability in their regions.[11]

In the meantime, violence continues in Sudan.[12] The AU Summit issued nice-sounding words about the need for a peaceful transition in Sudan. This included a more general request to the U.N. Security Council to defer all ICC investigations and prosecutions regarding Sudan for one year. [13]

Kenya. As previously reported, the ICC Pre-Trial Chamber on March 31, 2010, authorized the Prosecutor to commence an investigation of post-election violence in Kenya in 2007-2008, and on March 8, 2011, that Chamber authorized the issuance of six arrest summonses.[14]

At its recent Summit, the AU stressed the need to pursue all efforts to have the U.N. Security Council use its authority under Article 16 of the Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Kenya for one year. Such a deferral, the AU stated, would enable an investigation and prosecution by a reformed Kenyan judiciary in accordance with the ICC’s principle of complementarity. [15]

U.N. Security Council.

As we have just seen, all of the current ICC investigations and prosecutions come from Africa, two upon referrals by the U.N. Security Council and all of which potentially are subject to deferral by the Council. Thus, it is not surprising that the AU at its recent Summit meeting re-emphasized its desire for reform of the U.N. Security Council in order “to correct . . . the historical injustice done to the [African] continent, which continues to be unrepresented in the permanent category and under-represented in the non-permanent category of the . . . [Council].”[16]

To this end, the AU reaffirmed its Ezulwini Consensus on proposed U.N. reforms. With respect to the Security Council, this Consensus called for Africa to have two permanent and five non-permanent members on a reformed Council as chosen by the AU.[17]

[1] Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[2] ICTR Press Release, Case of Jean Uwinkindi Referred for Trial to the Republic of Rwanda (June 28, 2011); Reuters, U.N. Court Refers Genocide Case to Rwanda, N.Y. Times (June 28, 2011). Uwinkindi is a former Pentecostal pastor who has been accused of genocide, conspiracy to commit genocide and crimes against humanity (extermination) against the Tutsi people. (Id.)

[3] ICTR Press Release, Butare Judgment Released (June 24, 2011)

[4] ICTR Press Release, Bernard Munyagishari Pleads Not Guilty (June 20, 2011).

[5]  U.N. Security Council Press Release, Terms of 17 Judges with [ICTY] Extended (June 29, 2011); ICTY Press Release, Security Council extends Terms of ICTY Judges and Calls for Increased Cooperation with the Tribunal (June 30, 2011).

[6] Reuters, Mladic to ‘boycott war crimes hearing,’ Guardian (July 4, 2011); Simons & Cowell, Hague Judge Orders Mladic Removed From Courtroom, N.Y. Times (July 4, 2011). See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011); Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[7]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: The International  Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International  Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011); Post: The International  Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Stephen, Muammar Gaddafi war crimes files revealed, Guardian (June 18, 2011); Fahim, Claims of Wartime Rapes Unsettle and Divide Libyans, N.Y. Times (June 19, 2011).

[8]  Associated Press, AU Members Agree to Disregard ICC Gadhafi Warrant, N.Y. Times (July 2, 2011); Associated Press, African Union calls on member states to disregard ICC arrest warrant against Libya’s Gadhafi, Wash. Post (July 2, 2011); Amann, AU v. ICC, yet another round (July 3, 2011), http://intlawgrrls.blogspot.com/2011/07/au-v-icc-yet-another-round.html; AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news. Less than three weeks earlier the AU told the U.N. Security Council that the AU will not hide from its responsibility to help resolve the Libyan conflict. (U.N. Security Council, Press Release: African Union Will Never Hide from Responsibilities in Resolving Libyan Conflict (June 15, 2011).

[9]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[10] Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Higgins, Oil interests tie China to Sudan leader Bashir, even as he faces genocide charges, Wash. Post (June 22, 2011); Associated Press, Embattled Sudan president visits chief diplomatic backer, China, Wash. Post (June 29, 2011); Wines, Sudanese Leader Is Welcomed in Visit to China (June 29, 2011); Associated Press, UN: China Should Have Arrested Al-Bashir, N.Y. Times (June 30, 2011) (U.N. High Commissioner for Human Rights).

[11] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[12]  Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Gettleman, Sudan to Pull Troops From Abyei and Allow Peacekeepers, N.Y. Times (June 20, 2011); Kron, Ethnic Killings by Army Reported in Sudanese Mountains, N.Y. Times (June 20, 2011); Gettleman, As Secesssion Nears, Sudan Steps Up Drive to Stop Rebels, N.Y. Times (June 20, 2011); Bilefsky, U.N. Approves Troop Deployment in Sudan, N.Y. Times (June 27, 2011); Gettleman, Sudan Signs Pact With Opposition Forces, N.Y. Times (June 28, 2011); Reuters, Two Sudans to Create a Buffer Zone, N.Y. Times (June 29, 2011); Kristof, Yet Again in Sudan (June 29, 2011)(Sudanese government conducting vicious campaign of ethnic cleansing, murder and rape in Nuba Mountains); Gettleman, Another Area Girds for Revolt as Sudan Approaches a Split, N.Y. Times (June 30, 2011); Reuters, Sudan President [Bashir] vows to Fight, N.Y. Times (July 1, 2011); Gettleman, Sudanese Struggle to Survive Endless Bombings Aimed to Quell Rebels, N.Y. Times (July 3, 2011); Fagotto, Sudan partition leaves rebel Nuba region feeling betrayed, Guardian (July 3, 2011); Reuters, North and South Sudan Delay Talks Until After Split, N.Y. Times (July 4, 2011); Associated Press, Sudan President to Speak at S. Sudan Independence, N.Y. times (July 4, 2011).

[13] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[14]  Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[15] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[16]  Id.

[17] Au, Elzwini Consensus  (March 8, 2005).