United States of America – Page 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Thoughts About Mexican and U.S. Legal Issues in the Pending U.S. Lawsuit Against Ernesto Zedillo, Former President of Mexico

In September 2011 Ernesto Zedillo, a former president of Mexico, was sued in the federal court in Connecticut for money damages for his alleged complicity in a massacre in the Mexican village of Acteal in 1997. In September 2012, the U.S. government asked the court to grant immunity to Zedillo and dismiss the case based upon the Mexican government’s request to that effect and the subsequent similar request by the U.S. Department of State. These matters were covered in prior posts (here and here).

The U.S. court has not yet resolved the immunity or any other preliminary issues in the case, and the latest dockets sheets reveal no activities whatsoever since early February this year.

In March 2013 a Mexican court decided that the Mexican request to the U.S. State Department requesting such immunity was legally insufficient, as discussed in a prior post.

Subsequently a Mexican lawyer and friend, Juan Carlos Arjona Estévez, has provided me with additional comments about the Mexican court decision that prompt these additional thoughts about Mexican and U.S. legal issues in the case.[1]

The Mexican Court Decision

The Mexican court said the Mexican Ambassador’s letter to the U.S. Department of State requesting such immunity was legally deficient.[2] First, it was a letter from the Ambassador in his diplomatic capacity, not an official communication of Mexican government policy. Second, the letter did not cite to all the Mexican legal provisions relevant to the case. Third, the letter did not explain why immunity for Zedillo in the U.S. case was appropriate under those Mexican legal authorities and why such immunity would not affect Mexican ethnic groups’ right to access justice.

Moreover, there is no basis in the Mexican constitution for immunity for a former president or other government officials. Such immunity under Mexican law applies only when such individuals are in office.

This court decision could be appealed in Mexico by the Mexican Minister of Foreign Affairs, but reversal does not seem likely because the defense in the Mexican case is that the action of the Ambassador was not an “authorized act” that can affect the human rights of Mexicans, but only a diplomatic action.

If the decision is appealed, the three-magistrate appellate tribunal could affirm the decision and also refer to the provision in the Mexican Constitution stating that Mexican foreign policy has to promote human rights and that the request for Zedillo immunity for alleged human rights violations is contrary to such promotion.

Another possible outcome is for the Mexican Ambassador to rescind his request for immunity and to send a new letter to the U.S. Department of State saying that Senor Zedillo has not been sued in Mexico for the same claims and that Mexican courts should have the first opportunity to deal with these issues.

Related U.S. Legal Issues

These developments in Mexico raise at least two issues for U.S. law.

1. With or without a rescission of the original Ambassador’s letter, should the U.S. court grant immunity to Zedillo?

The original September 2012 letter from the U.S. State Department to the U.S. Department of Justice said “a sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all of his actions.” (Emphasis added.)

On the other hand, the State Department letter went on, the “residual immunity of a former official . . . is based upon the character of that official’s conduct and extends only to acts taken in an official capacity. . . . [The] Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity. This . . . is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.” (Emphasis added.)

The State Department letter mentioned the Mexican Ambassador’s request for immunity based upon his assertion that “any actions [by Zedillo] . . . in connection with the events alleged in the complaint were taken in the course of his official duties as head of state.” This Mexican government assertion, the State Department letter says, corroborates its assessment to the same effect. In addition, the plaintiffs have not rebutted this assessment.

Therefore, the State Department’s letter concluded that Zedillo’s “alleged actions were taken in an official capacity, and he enjoys immunity from this lawsuit.”

This letter, taken by itself, might suggest that immunity might still be open even if the Mexican Ambassador’s letter were rescinded as it only corroborated that Zedillo was acting in his official capacity.

However, when the State Department in another case declined to request immunity for a former Somali official, it said any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, as was the case for Somali at the time, there was no one that could assert such a claim or make such a waiver. As a result, the State Department concluded that the former official did not enjoy immunity, and the court endorsed that conclusion and rejected the immunity claim.

Thus, if the Mexican Ambassador’s letter to the State Department is rescinded and not replaced by another request for immunity, the principles enunciated in the Somali case suggests that Zedillo would not be entitled to immunity.

2. Failure To Exhaust Mexican Remedies.

Another U.S. issue is whether the plaintiffs have failed to exhaust whatever remedies they have in Mexico.

Some of the claims in the U.S. case are asserted under the Torture Victims Protection Act (28 U.S.C. § 2350 note), which provides, in part, “A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” There is no similar provision in the Alien Tort Statute, under which some of the claims are also asserted, but the U.S. Supreme Court in Sosa v. Alverez-Machain suggested that failure to exhaust remedies in the other country could be a limitation on ATS claims.

Thus, the issue for the U.S. court in such a hypothetical situation would be whether the claims under Mexican law are “adequate and available” and whether the plaintiffs had exhausted whatever Mexican remedies they had. [3]

Conclusion

I would anticipate that the plaintiffs’ lawyers in the U.S. case will advise the court in Connecticut of the Mexican court decision;[4] that the U.S. court will wait until there is a final resolution of the Mexican case before doing anything, and if the recent Mexican decision is not reversed, request the views of the State Department on the significance of the former; and thereafter the U.S. court will make a decision on whether or not to grant immunity to Zedillo.

[1] The Yale Daily News and ctlatinonews also have articles about the Mexican court decision.

[2] Because of the significance of the Mexican Ambassador’s letter, its text is attached at the conclusion of this post.

[3] There also should be a U.S. procedural problem if Zedillo now tries to raise the plaintiffs’ alleged failure to exhaust Mexican remedies as a defense in the U.S. case. The original U.S. complaint anticipated such a defense with the allegation that the plaintiffs do not have adequate remedies in Mexico and that they have exhausted their available Mexican remedies. Zedillo’s U.S. motion to dismiss the complaint only asserted immunity, and Rule 12(g) of the Federal Rules of Civil Procedure should prevent him from now raising this affirmative defense by motion.

[4] One of the plaintiffs’ attorneys has said they would so advise the U.S. court and ask it to request the State Department for reconsideration of the immunity issue.

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EMBASSY OF MEXICO

07654

Washington, DC, on November 4, 2011.

Madam Secretary:

On behalf of my Government, I have the honor to refer to the case v Doe et al. Zedillo Ponce de León, filed with the U.S. District Court for the District of Connecticut as No. 3:11-cv-01433, in place of the former President of Mexico, Ernesto Zedillo Ponce de León.

In this regard, I wish to express my Government’s rejection of any internal process that violates the sovereignty of Mexico, to exercise jurisdiction over alleged acts occurred in territory in which he allegedly spoke the President in his official capacity. In this regard it should be noted that any other act performed by former President Ernesto Zedillo regard to the facts in the lawsuit that gave rise to the case of history, took place in the course of his official duties as head of state and is Therefore, to rule in some sense, the Court would be deciding on actions the government of Mexico sovereign within their own territory.

In light of the above, I would sincerely request the intervention of the Department of State through the Department of Justice before the U.S. District Court for the District of Connecticut, by a suggestion of immunity to former senses of Mexico. In this regard, I note that the recognition of immunity enjoyed by foreign officials for acts performed in their official capacity is largely rooted in a principle of customary international law, whose application has been confirmed many times by the U.S. government, particularly in situations involving heads of state. There are also precedents in American jurisprudence that confirmed the practice.

In this regard, I quote Gemisen v cases. De la Madrid v Habyarimana. Kagame, Giraldo v. Drummond Co., Wei Ye v. Jiang Zemin and Lafontant v. Aristide, as a sign of the instances in which the State Department has intervened in the past the U.S. courts to reaffirm its position on immunity accompanying heads of state, even after completing your order. Enclosed is a legal memorandum that contains more elements on those precedents.

Similarly, I wish to present it as a process which aims to substantiate against former President of Mexico affect the bilateral relationship between Mexico and the United States, in dismissing the action of various national authorities in response to the event that occurred in the village of Acteal, Chiapas in December 1997, the Government made strongly condemned in turn, immediately abocándose research and presentation of those responsible to the law enforcement bodies.

In thanking Your Excellency in advance for your valuable support for the State Department’s intervention in the case of history, I do own the opportunity to renew the assurances of my highest consideration.

Ambassador Arturo Sarukhan

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.

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.

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

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

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

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

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

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

Organization of American States Strengthens the Inter-American System of Human Rights [1]

OAS General Assembly, 3/22/13 (Photo: OEA OAS Photostream [2])

On March 22, 2013, the Extraordinary General Assembly of the Organization of American States (OAS)[3] adopted by acclamation a resolution strengthening the Inter-American System of Human Rights (“the System”).[4] The resolution had the following provisions:

Requested the Inter-American Commission on Human Rights (“Commission”), an autonomous OAS organ that promotes and protects human rights in the American hemisphere, to continue to move forward with application of its responses to suggestions for reform by a special working group and the Commission’s March 18, 2013, reform of its rules.
Instructed OAS’ Permanent Council[5] to continue the dialogue on the “core aspects for strengthening” the System.
Urged the Commission to put into practice pending recommendations for reform.
Encouraged the Commission “to strengthen its efforts in the promotion of human rights, including through its support to national systems.”
Reaffirmed the OAS General Assembly’s commitment to obtain full financing of the
System through OAS’ Regular Fund “without prejudice to the financing of the other mandates” of the OAS.
Requested the OAS Secretary General to submit to the OAS Permanent Council “a detailed, up-to-date analysis of the full operating costs” of the System.
Proposed that the Commission “strengthen all its rapporteurships, including by giving consideration to granting special status to all existing rapporteurships, based on adequate financing, without prejudice to its other responsibilities.”[6]
Urged “OAS member states [i.e., U.S., Canada and seven others] to ratify or accede to . . . all inter-American human rights instruments, especially the American Convention on Human Rights,” and for the U.S., Canada and eight other states “to accept . . . the contentious jurisdiction of the Inter-American Court of Human Rights.”[7]

Understanding the significance of this resolution requires elaboration.

1.1. Recommendations of the Special Working Group. In its December 2011 report the Special Working Group proposed changes to the Commission’s rules regarding individual petitions and cases; precautionary measures; monitoring of human rights in member states; promotion of human rights; a permanent presidency; financing and allocation of resources; and dissemination of criteria and jurisprudence.[8] The most controversial ones that were seen by many as efforts to muzzle the Commission were these:

Restrict the Commission’s discretion in granting “precautionary measures,” by, among other things, setting forth “precise objective criteria” for granting same and determining whether the situation was “serious and urgent.” The addition of such criteria would help states as well as alleged victims who are affected by such measures.
Require its annual report to cover human rights conditions in all OAS members, not just those with the most pressing problems.
Reduce the activities and funding of the Special Rapporteur on Freedom of Expression by eliminating its separate funding and instead requiring balanced funding of all rapporteurs as well as eliminating this one’s special report.
Require the Commission to devote more time and resources to the general promotion of human rights and thereby reduce its time and resources to deciding individual complaints.
Impose restrictions on the Commission’s decisions regarding individual complaints.

1.2. Commission’s Responses to Recommendations of Special Working Group. On October 23, 2012, the Commission issued its second response expressing agreement with most of these recommendations.

However, the Commission did disagree with the recommendation to assign balanced resources to all of its rapporteurships. It pointed out that the first source of funds for the Commission is the OAS Regular Fund, which covers only 54% of the Commission’s financial needs. This necessitates soliciting outside funds, some of which are designated for specific purposes (one of which implicitly is for the Freedom of Expression Rapporteurship). “[P]rohibitting or impeding any of [these] . . . funding sources would lead to the immediate structural weakening of the thematic rapporteurships and units, as well as [their] . . . important promotional and technical assistance activities.”

Moreover, the request for balanced or equal allocation of resources legitimately was seen as a back-door way to reduce the funding for the Rapporteurship for Free Expression and hence its work, an objective of those states that had been criticized for retaliation against journalists and media for criticism of the governments.

1.3. Commission’s Recent Changes in Its Rules and Policies. On March 18, 2013 (only four days before the OAS General Assembly was to consider the whole subject of reforming the System), the Commission adopted a resolution amending its rules and adopting certain institutional policies, effective August 1, 2013.

The rules that were changed were Rule 25 (Precautionary Measures); 28 (Requirements for the Consideration of Petitions); 29 (Initial Processing); 30 (Admissibility Procedure); 36 (Decision on Admissibility); 37 (Procedure on the Merits); 42 (Archiving of Petitions and Cases); 44 (Report on the Merits); 46 (Suspension of Time Limit to Refer the Case to the Court; 59 (Annual Report); 72 (Experts); 76 (Provisional Measures); and 79 (Amendment of the Rules of Procedure).

These changes adopted many of the suggestions made by the Special Working Group.

For example, one of the more signficant changes was to Rule 25 covering precautionary measures, which are actions the Commission requests a state to take to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case before its final resolution on the merits, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case. The amended rules more precisely identifies the situations for same as “serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or case before the organs of the inter-American system” and provides definitions of “serious situation,” “urgent situation” and “irreparable harm.” It also provides that decisions granting, extending, modifying such measures shall contain certain elements.

Similar changes were made to Rule 76 covering provisional measures, which are actions the Commission requests the Inter-American Court to take in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons. The amended rule provides for the first time the following criteria for deciding upon a request for such measures: (a) ” when the State concerned has not implemented the precautionary measures granted by the Commission;” (b) “when the precautionary measures have not been effective; ” (c) “when there is a precautionary measure connected to a case submitted to the jurisdiction of the Court;” or (d) “when the Commission considers it pertinent for the efficacy of the requested measures, to which end it shall provide its reasons.”

Foremost among the new institutional policies was the establishment of the following priorities: promotion of universal ratification of the American Convention on Human Rights and other similar instruments; promotion of economic, social and cultural rights; and development of a plan for a permanent presidency. Other adopted policies generally concerned measures to increase public transparency of the Commission’s activities.

2. Permanent Council’s Continuing Dialogue on Core Aspects of Reforming the System. Although most states and their representatives were ready to end the reform process with the adoption of the March 22nd resolution, they accepted this “open door” for further dialogue as a way to keep those states less friendly to the Commission (especially Ecuador, Venezuela, Bolivia and Nicaragua) involved in the Human Rights System and not renounce the American Convention on Human Rights and other treaties.

3. Commission’s Implementing Pending Reform Recommendations. I do not know what is meant by “pending [reform] recommendations,” and I solicit comments explaining this point. Presumably this refers to the Commission’s March 18th adoption of amended rules and of policy priorities.

4. Commission’s Strengthening Promotion of Human Rights. This is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates. In my opinion, such promotion should not come at the expense of reducing efforts on resolving specific complaints about alleged violations of human rights.

5. OAS’ Obtaining Full Financing of the System. This too is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates.

6. Analysis of Full Operating Costs of the System. This sounds like a straight-forward cost analysis of the Commission and the Inter-American Court of Human Rights (“the Court”).

7. Commission’s Strengthening of Rapporteurships. There now are the following Rapporteurships on the Rights of (i) Indigenous Peoples, (ii) Woman; (iii) Migrant Workers and Their Families; (iv) the Child; (v) Human Rights Defenders; (vi) Persons Deprived of Liberty; and (vii) Afro-Descendants and Against Racial Discrimination.

There also is a Special Rapporteurship on Freedom of Expression, which has a “general mandate to carry out activities for the protection and promotion of the right to freedom of thought and expression.”

Subject to the qualification about outside funding designated for specific purposes, there is no quarrel with the objective of strengthening all of the rapporteurships.

8. Obtaining Universality of Ratification/Accession of the American Convention on Human Rights and Acceptance of Contentious Jurisdiction of the Inter-American Court of Human Rights.

Of the 34 members of the OAS, only 9 have not ratified or acceded to the American Convention on Human Rights with the U.S. and Canada being the major exceptions. Nor have the U.S. and Canada and 10 other states accepted the jurisdiction of the Inter-American Court of Human Rights to decide cases of their alleged violations of that Convention.[9]

The desire for universality expressed in this resolution, in my opinion, is appropriate even though I suspect it is motivated in part by the understandable resentment of the U.S. for not accepting the Convention and the Court’s jurisdiction while simultaneously criticizing other states in the Hemisphere for their violations of human rights.

Conclusion

The previously mentioned controversial recommendations by the Special Working Group were promoted by states that had been targets of individual complaints and of criticisms by the Special Rapporteur on Freedom of Expression. Foremost among these states was Ecuador, which has become notorious for its legal claims against the media for criticism of its government and by states that understandably resent the U.S.’ not being a party to the American Convention on Human Rights and not consenting to the contentious jurisdiction of the Court. This background will be discussed in a subsequent post.

[1] The author would like to thank Mexican attorney, Juan Carlos Arjona Estevez, for his assistance in preparing this post. Muchas gracias, amigo!

[2] This photo is subject to license with OAS.

[3] The OAS was established in 1951 to achieve among its member states “an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.” Its supreme organ is the General Assembly, which is composed of delegations of the member states.

[4] The OAS Human Rights System includes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. A chronology of the Human Rights System reform process is available on the Commission’s website. Some of the work of the Commission has been discussed in prior posts.

[5] The OAS Permanent Council under Chapter XII of the OAS Charter is the organ that is in overall charge of its activities pursuant to delegations by the OAS General Assembly or other organs.

[6] Starting in 1990, the Commission began creating thematic rapporteurships under the leadership of an individual who is an expert in the area in order to devote attention to certain groups, communities, and peoples that are particularly at risk of human rights violations due to their state of vulnerability and the discrimination they have faced historically. The aim of creating a thematic rapporteurship is to strengthen, promote, and systematize the Commission’s own work on the issue.

[7] In footnotes to the consensus resolution, Guatemala urged the Commission to (i) move its headquarters from Washington, D.C. to San Jose, Costa Rica (which hosts the Court and the Inter-American Institute for Human Rights); (ii) draft a proposed protocol to the American Convention on Human Rights to establish standards for precautionary measures (akin to preliminary injunctions in U.S. law); (iii) limit the Commission’s commissioners and special/thematic rapporteurs to a single term; (iv) set 2015 as the date for attaining full financing of the System; and (v) placing all rapporteurships under the leadership of the commissioners.

[8] The Special Working Group’s report with 53 recommendations for the Commission was adopted by the OAS Permanent Council on January 25, 2012 and ratified by the OAS General Assembly on June 5, 2012.

[9] The Court’s Statute’s Article 2(1) provides that its “adjudicatory jurisdiction shall be governed by . . . Articles 61, 62 and 63 of the Convention,” and the latter’s Article 62 requires a state’s declaration “unconditionally, or on the condition of reciprocity, for a specified period, or for specific cases” that it “recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.”

Further Reflections on “The Book of Negroes” Novel

A prior post summarized Lawrence Hill’s novel The Book of Negroes while another post provided a brief look at the relevant historical background of the novel–the fate of the Black British Loyalists in the American colonies during and after the American Revolutionary War.

Now we examine Hill’s own reflections about his novel and how his biography has influenced this novel and his other books. [1]

He first heard about the historical Book of Negroes in 1980 when he read The Black Loyalists: The Search for a Promised Land in Nova Scotia and Sierra Leone, a scholarly book by Canadian historian James W. St. G. Walker.

Hill immediately knew from reading the Walker book that one day he would write the fictional story of a woman who had to have her name entered into the Book of Negroes. But it took at least 15 years before he felt he was ready to tackle such a large project. In 2002 when he began to research and write the novel, he examined for the first time reproductions of the actual Book of Negroes. Another topic of his research was the activities of the British abolitionists. The size of this project is indicated by the five years it took to research and write the novel.

His greatest surprise from his research was discovering that among the Black Loyalists who left Nova Scotia for Sierra Leone in 1792 were some who had been born in Africa and thus were returning home. This back-to-Africa exodus took place 30 years before American slaves went to Africa to found Liberia and more than a century before Jamaican Marcus Garvey urged blacks in the Diaspora to return to the motherland.

From the moment of his conception of the novel, Hill said, it was a woman’s story. As a writer, he locates stories in the lives of the people who have the most to lose, and Aminata as a mother had the most to lose.

A constant question for him in all of his writing, he said, was how does someone survive horrible events in life. Every book or story requires an overarching theme, which for him is what does the main protagonist want. For Aminata in The Book of Negroes it is “I want to go home to Africa.”

Lawrence Hill’s parents — a black father and a white mother —were U.S. citizens who emigrated to Canada the day after they married in 1953 in Washington, D.C.in order to escape racial discrimination and anti-miscegenation laws. Both of them were involved in the human rights movement, an influence Hill readily acknowledges.

Born in Canada in 1957, Hill was raised in a predominantly white Toronto suburb. He has a B.A. in economics from Laval University in Quebec City and an M.S. in writing from Johns Hopkins University in Baltimore.

Although Hill always wanted to be a creative writer, he immediately recognized that he needed to have some kind of gainful employment to support himself financially as he was starting his writing career. These sidelines, he acknowledges, helped his creative writing.

He spent three years as a journalist with Toronto’s The Globe and Mail and The Winnipeg Free Press and learned how to write quickly on short deadlines and to recognize that his words could be changed by editors. He then spent a year in Spain writing short stories, but realized that his quickly written letters from Spain to friends were more lively and better written. For the next 15 years he was a free-lance speech writer for Canadian politicians and in the process learned how to write for different voices.

Hill’s international travels have also influenced his writing, especially his volunteer trips to West Africa. While in Mali, for example, he met a midwife by the name of “Aminata,” which he used as the name of the main character in The Book of Negroes.

Now Hill is an accomplished and recognized author. In addition to The Book of Negroes, he has published two other novels, a memoir, three other non-fiction books and the script for a film.

He is a member of the Council of Patrons of the Black Loyalist Heritage Society. Hill has received the Diamond Jubilee Medal from Queen Elizabeth II, the Medal of Distinction from Huron University College, the Freedom To Read Award from the Writers Union of Canada, the Award of Excellence from the Canadian Civil Liberties Association, and the Rev. John C. Holland Award of Merit from the Hamilton Black History Committee. Hill also holds honorary doctorates from the University of Toronto, Wilfrid Laurier University and the University of Waterloo.

This coming fall Hill will be Canada’s Massey Lecturer and has said the lecture’s theme will be “how beliefs, traditions, rituals, phobias, and obsessions about blood influence how we see ourselves individually and societally.”

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[1] This post is based primarily upon materials on Hill’s own website and his recent remarks at the San Miguel Writers’ Conference.

The Black British Loyalists Through the Eyes of Novelist Lawrence Hill

As mentioned in a prior post, the amazing saga of the Black Loyalists in the American Revolutionary War is not widely known. Helping to make it better known is the novel, The Book of Negroes, by Canadian novelist, Lawrence Hill.

The novel takes the form of a memoir written in the early 19th century by a West African woman, Aminata Diallo.

She starts with her mid-18th century abduction as an 11-year-old girl from her West African village and being forced to walk for months to the coast of the Atlantic Ocean. There she is put on a slave ship that takes her to South Carolina, where she begins a new life as a slave.

Aminata is intelligent and as a slave learns midwifery skills and how to read and write. Nevertheless, her life as a slave is not easy.

Her story begins to intersect with that of the Black Loyalists near the end of the American Revolutionary War when she goes to New York City. Because she is literate, she is hired by the British to prepare the Book of Negroes, which provides identifying information for Black Loyalists to be evacuated from the City to go to Nova Scotia for a new and promised better life as free people. In Hill’s words, it was like a group passport or visa. Aminata is one of those so evacuated.

Life in Nova Scotia, however, is not as easy or as great as the British had promised, as demonstrated in the historical record and in the novel, for Aminata and the other Black Loyalists.

Eventually some of the Black Loyalists leave Nova Scotia to go to Sierra Leone in western Africa, as documented in the historical record. In the novel, Aminata is one of those Black Loyalists returning to Africa.

Aminata’s fictional life, however, also includes a trip to London, where she is used in the early 19th century by the British abolitionists to support their arguments for ending the slave trade. To her consternation, abolition of slavery itself is not part of the abolitionists’ agenda.

Guides for the novel for teachers and readers are available on Hill’s website.The novel is now being made into a TV series.

The novel won the overall Commonwealth Writers’ Prize for Best Book, the Rogers Writers’ Trust Fiction Prize, the Ontario Library Association’s Evergreen Award and CBC Radio’s Canada Reads. The book was a finalist for the Hurston/Wright LEGACY Award and long-listed for both the Giller Prize and the IMPAC Award.

When my best friend from college who lives in Toronto gave me a copy of this novel several years ago, I had never heard of it and was startled by the title, “The Book of Negroes.” Was this some racist tract? I wondered, but my friend quickly disabused me of that notion.

I found it hard to believe that any male writer, much less an assumed white man, could write so beautifully and convincingly in the first person of an African woman. It was only much later that I discovered that Hill is biracial and that his personal history coupled with his writing skills clearly helped him to write this wonderful book.

A subsequent post will explore Hill’s comments about the novel and his biography.

Cuban Blogger Obtains Cuban Passport and Plans Trip to Latin America, North America and Europe

From her home in Havana, Cuba, Yoani Sanchez has been courageously blogging her critical comments on many aspects of life in her country as noted in a prior post.

In January 2013, under Cuban’s new law granting Cubans increased ability to obtain passports, she received her Cuban passport. She was overjoyed by this development after she had been denied a passport 20 times over the last five years.

Upon receiving the great news that she would obtain a passport, she bravely said in her blog:

She intends to “continue ‘pushing the limits’ of reform, to experience first hand how far the willingness to change really goes. To transcend national frontiers I will make no concessions. If the Yoani Sánchez that I am cannot travel, I am not going to metamorphose myself into someone else to do it. Nor, once abroad, will I disguise my opinions so they will let me ‘leave again’ or to please certain ears, nor will I take refuge in silence about that for which they can refuse to let me return. I will say what I think of my country and of the absence of freedoms we Cubans suffer. No passport will function as a gag for me, no trip as bait.”
“These particulars clarified, I am preparing the itinerary for my stay outside of Cuba. I hope to be able to participate in numerous events that will help me grow professionally and civically, to answer questions, to clarify details of the smear campaigns that have been launched against me… and in my absence. I will visit those places that once invited me, when the will of a few wouldn’t let me come; I will navigate the Internet like one obsessed, and once again climb mountains I haven’t seen for nearly ten years. But what I am most passionate about is that I am going to meet many of you, my readers. I have the first symptoms of this anxiety; the butterflies in my stomach provoked by the proximity of the unknown, and the waking up in the middle of the night asking myself, what will you look like, sound like? And me? Will I be as you imagine me?”

On February 17th she plans a worldwide tour visiting Latin American (Brazil, Argentina, Chile, Peru, Colombia and Mexico), North America (U.S. and Canada) and Europe (Italy, Czech Republic, Poland, Switzerland and Germany).

I pray that there will not be any last minute move by the Cuban government to block her leaving the island. I look forward to her comments on Cuba during her visits to these countries.

Yoani, congratulations and God Speed on your journey!