'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The Court was explicit in explaining what is required to ensure indigenous and tribal peoples’ right to consultation. The Court stated that the obligation to consult is the responsibility of the state; therefore, planning and conducting the consultation process cannot be delegated to a private company or a third party. The Court also considered that the consultation process should entail a “genuine dialogue as part of a participatory process in order to reach an agreement,” and it should be conceived as “a true instrument of participation,” done in “good faith,” with “mutual trust” and with the goal of reaching a consensus.'

–  Lisl Brunner, a human rights specialist with the Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, and Karla Quintana, a human rights specialist with the Commission's Litigation Group, in an ASIL Insight entitled "The Duty to Consult in the Inter-American System: Legal Standards after Sarayaku." The co-authors set forth the reasoning in Caso del Pueblo Indígena Kichwa de Sarayaku v. Ecuador (June 27, 2012), in which the Inter-American Court of Human Rights held that the respondent state was liable for failing to discharge its duty to consult with the indigenous Sarayaku people in connection with an oil project, undertaken in 1996, that destroyed part of a rainforest in the people's traditional lands.
As Brunner (right) and Quintana (left) explain, although the decision arose within the inter-American human rights system, it is likely to have impact on actors brought before other regimes as well; for example, those that consider: the International Labour Organization Convention No. 169, titled the Indigenous and Tribal Peoples Convention; the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the African Charter on Human and Peoples' Rights.

How to "fix that" United States elections process

(Final part of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 2 is here; Part 3 is here.)

President Lyndon Johnson & Dr. Martin Luther King Jr., 1965

In the United States, citizens must continue to advocate vigorously to hold on to landmark historic voting rights protections and inclusionary guarantees.
For example, consider a controversial case soon to be argued before the U.S. Supreme Court. Entitled Shelby County v. Holder, the case, arising out of the U.S. Court of Appeals for the District of Columbia Circuit, represents a challenge to the constitutionality of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 – provisions that require jurisdictions with a documented history of discrimination to obtain approval from the federal government before changing their election procedures.
For over 40 years, the Voting Rights Act has been upheld as constitutional. The Act worked to ensure historically disenfranchised minorities' increased participation in U.S. elections, and was reauthorized in 1970, 1975, 1982, and again, unanimously by a Republican Congress in 2006, during the administration of President George W. Bush.
Now, the most effective civil rights law in U.S. history faces an unprecedented challenge with Shelby County, which puts at stake the constitutionality of the VRA under the Tenth Amendment and Article IV of the U.S. Constitution.
As Corey Dade of NPR has recalled, the preclearance provisions are still quite relevant in 2012, given that federal courts applied the preclearance provisions to block voter identification requirements in Texas, and other procedural electoral changes, ahead of the U.S. general election on November 6.
Similarly, California-Irvine Law Professor Rick Hasen, an election law expert, said :

'There is still evidence of unconstitutional conduct as found this year in the Texas redistricting case ... There certainly is some evidence of continued racial discrimination in voting, although it is far less common than in the 1960s. And when it occurs, it is more subtle. Section 5 has served to be an important bargaining chip.'

Indeed, many voting rights advocates point to the support that U.N. Under-Secretary-General Ralph Bunche provided Dr. Martin Luther King, Jr. and the civil rights movement during the 1960s, which ultimately turned up the pressure on President Lyndon Baines Johnson to sign the Voting Rights Act of 1965. Bunche, winner of the 1950 Nobel Peace Prize  on account of his diplomatic efforts in the Middle East, had participated in the 1963 March on Washington. In a public statement at the Montgomery Statehouse during the 1965 march from Selma to Montgomery, he said that the United Nations supported the civil rights movement in the United States:

'In the UN, we have known from the beginning that secure foundations for peace in the world can be built only upon the principle and practice of equal rights and status for all peoples, respect and dignity for all.'

This resonated for me during my October service as an elections observer in Venezuela. While there, as depicted at left, I had the opportunity to meet the 1992 Nobel Peace Prize recipient, Rigoberta Menchú Tum. An indomitable indigenous rights advocate, she too was part of the International Accompaniment that observed voter access and participation. (photo courtesy of CUNY Professor Ron Hayduk) Menchú’s lifework reminded me of why it is so important to stay vigilant in the protection of these civil rights both at home and abroad.
Much work remains to be done.
 As I posted in Part 1 of this series, the 2009 Nobel Peace Prizewinner, U.S. President Barack Obama, said of U.S. voting-rights issues during his November 6 victory speech:

'We have to fix that.'

Voting access & participation in Venezuela's indigenous & Afrodiasporic communities

(Part 3 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 2 is here; Part 4 is here.)

October 7, the general Election Day in Venezuela, falls on a Sunday. That day, in my capacity as an international election accompañamiento, or "accompaniment," I traveled to many sites in Venezuela. Specifically, I visited eleven precincts across the eastern state of Monagas, along with two domestic observers, a Swiss human rights advocate, a Brazilian professor of international law, and two journalists from Chile and Uruguay.
When we arrived at the remote indigenous Warao community of Mosú at 8:40 in the morning, we observed that 60% of the people in the community had already exercised their right to vote.

Our delegation spoke with Santo Garcia, the elected administrator of the indigenous school in the town of Mosú. Garcia stated:

'Every person who wants to exercise their vote has been able to do so…. As it says in the Constitution approved in 1999, every indigenous community needs to elect their representatives.'

No outsiders – other than the staff of Consejo Nacional Electoral, also known as the National Electoral Council or CNE, as well as officials, observers, and international accompaniers – were allowed to enter the community, under the local regulations regarding indigenous autonomy.
CNE is an independent, fourth branch of government. It derives from the power of the people as set forth in Articles 136 and 296 of the 1999 Venezuelan Constitution, and works affirmatively to create spaces for indigenous and afrodiasporic minority voters to exercise the franchise. (credit for photo by Uruguay Delegation, CNE Accompañamiento Internacional de las Elecciones del 7 de octubre, 2012, Comunidad Indigena Mosú, Caripito, Bolívar, Estado de Monagas, Venezuela)
Professor Esther G. Pineda (left), a sociologist at the Universidad Central de Venezuela, writes:

'In creating new electoral centers in remote communities that historically had been forgotten as afrodescendent and low-income communities, the initiatives of the Consejo Nacional Electoral (CNE) create a system that prioritizes security and confidence in the voters, as a massive investment in the education and formation of voters who respect the procedures to exercise the right to vote. This investment has clearly had a return, and a significant impact on reducing the numbers of abstentions and null votes. In a highly politicized and polarized society such as Venezuelan society, in which the population has become a part of the political process every day – this has become an evolving process in the participatory and active exercise of one’s citizenship.

(photo source)

'As a result, there has been a major consolidation of spaces for debate in a society in which diverse opinions and thoughts were formerly silenced; now afrodescendent men and women have the opportunity to express themselves and reflect on their own situation and experiences, specifically those which have resulted in the massive formulation of policy proposals and projects by and for diverse afrodescendent groups and communities.'

In my view, as an observer this autumn of both the U.S. and the Venezuelan elections, the clarity of the national standards, technical audits and accountability measures built into Venezuela’s electoral process stand in stark contrast to the lack of transparency and struggles with voter ID requirements and other forms of suppression in the United States.

Electoral participation: Venezuela & United States

(Part 2 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 3 is here; Part 4 is here.)

An unprecedented 80.48% of Venezuela’s over 18 million registered voters participated in the presidential elections that took place on October 7 – elections at which, as I posted yesterday, I served as an international observer.
Fifteen years ago in Venezuela, a country with a population of around 27.1 million, only about 13 million voters were registered and eligible to vote. (Photo Credit: Swiss Delegation, CNE Accompañamiento Internacional de las Elecciones del 7 de octubre, 2012, Estado de Monagas, Venezuela)
Dr. Tibisay Lucena, current President of Venezuela's Consejo Nacional Electoral, the election council known as CNE, has engaged in some analysis of the massive shift in levels of participation in her essay, The Venezuelan Experience. Lucena and other members of the CNE, including Vice President Sandra Oblitas, attribute much of the increased participation to the massive investment of the CNE in electoral inclusion in historically disenfranchised urban and rural communities.

Tibisay Lucena

Earlier in 2012, before the registration process closed in April, Tamara Pearson of Venezuelanalysis.com reported that

Sandra Oblitas Ruzza

'CNE set up 1,300 registration tents around the country and in overseas consulates, and 1,360,598 people registered to vote for the first time, while 4,512,000 changed their voting address, according to CNE director Sandra Oblitas.'

Pearson reported that 89% of the new registrations were among youth aged 18 to 25; other new registrations included individuals who had since been granted Venezuelan nationality, people who were unable to register due to rural isolation or perhaps a disability, and people who chose not to register prior to 2012. Only individuals with Venezuelan nationality could vote in the October presidential elections; residents can vote in the upcoming December 16 regional elections.
Oblitas has stated that the gap between those able to vote and those registered had been reduced to 3.5%, a statistic she interpreted as a great advance and a direct result of a broader policy of participatory inclusion. The CNE employs over 400,000 people to staff the electoral mesas, provide on the ground digital technology support, and directly administer the electoral process, and maintains an independent budget of over Bs 2,273,000,000 (US$ 494 million) to carry out both the October 7 and upcoming December 16 regional electoral processes.
In contrast, consider that the highest participation rate in recent years in the United States was estimated at only 61.6% of registered voters, comprising only 57.47% of the entire U.S. voting-age population. That was in the 2008 presidential elections.
Amid reports of lower registered-voter turnout this year – an estimated 57.5% – the popular image of the United States as a leader in the development of open, participatory, democratic institutions is not exactly in alignment with current realities on the ground.
In fact, according to data compiled by the international Institute for Democracy and Electoral Assistance, the United States trails behind 16 Latin American nations in terms of voter turnout, besting only Colombia (45%) and Honduras (53%), two countries that are not well-regarded for any laudable transparency in the electoral process.
The perennial confusion over voter registration in the United States, which may depress registration and participation levels, could be clarified by uniform national standards regarding voter registration. Reforms might take into consideration similar systemic electoral reforms in Latin America.
Along with observations from the Center for Economic and Policy Studies, the National Lawyers Guild International Committee's observations of Venezuelan popular democracy in action – observations in which I took part – stand in marked contrast with media depictions of Venezuela’s government as autocratic.

“We Have to Fix That”: The ICCPR, U.S. voting rights & lessons learned from Venezuela's process

(Part 1 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 2 is here; Part 3 is here; Part 4 is here.)

'I want to thank every American who participated in this election, whether you voted for the very first time or waited in line for a very long time. By the way, we have to fix that.'

- President Barack Obama, Chicago, Illinois, United States, November 6, 2012

President Obama’s remarks came on the heels of an election he won, despite persistent problems with:
►Restrictions on early voting, voter registration drives, and voter ID legislation, and
►In some cases, third-party voter intimidation in the United States.
What seemed to be an ad-lib in Obama’s victory speech resonated deeply with my observations in the field on Election Day in the United States. And as a captain with the volunteer nonpartisan National Election Protection Coalition Field Program, I heard reports of third-party voter intimidation in southern and central California, and of other forms of voter suppression in Ohio and Arizona.
The statement that "we have to fix that" placed in some contrast my observations this fall in the field in Venezuela – another country that, like the United States, bears the burden of a racially discriminatory past and historical problems with access to a free and fair vote.
On October 7, along with 7 other members of the National Lawyers Guild International Committee delegation and over 200 international parliamentarians, election officials, academics, journalists, and judges, I had the opportunity to observe Venezuela's 2012 Presidential Elections. I was able to get a glimpse as to how Venezuela's democratic process functions on a procedural, technical level. And I saw the International Covenant on Civil and Political Rights in action. In the 4-part series that I begin with this post, I will set forth my own observations and comparisons of the 2012 elections processes in Venezuela and the United States – observations informed by the guarantees of the international civil rights covenant.

Photo Credit: NLG International Committee Delegation 

from the U.S., CNE Accompañamiento Internacional 

de las Elecciones Venezolanas del 7 de octubre, 2012

Article 25 of the ICCPR requires that every citizen shall have the right and opportunity without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives; “to vote and to be elected at genuine periodic elections…by universal and equal suffrage and…by secret ballot, guaranteeing the free expression of the will of the electors;” and “to have access, on general terms of equality, to public service.”
After reviewing the Carter Center’s pre-electoral report examining Venezuela’s electoral process and procedural guarantees, former President Jimmy Carter stated:

International context for affirmative action argument

'The University of Texas’ race-conscious admissions policy comports with international human rights standards guaranteeing the full freedom from racial discrimination for all and furthers the United States’ compliance with its international treaty commitments. Furthermore, the University of Texas’ program comports with the law of other jurisdictions upholding and endorsing race-conscious measures in admissions in higher education. This international context should inform the Court’s analysis of the constitutionality of the University of Texas’s consideration of race in its admissions process.'

– So concludes IntLawGrrl Connie de la Vega (left), University of San Francisco Law Professor, in her capacity as counsel of record for the Brief of Amici Curiae Human Rights Advocates, et al., in Support of Respondents in Fisher v.  University of Texas. In that case, to be argued before the U.S. Supreme Court tomorrow morning, petitioner Abigail Noel Fisher, a Texan denied admission to the university, seeks to overturn a 2011 decision in which the U.S. Court of Appeals for the 5th Circuit, relying on the supreme Court's judgment in Grutter v. Bollinger (2003), upheld the university's race-conscious admissions program. (A preview of the argument is here.)
Connie's brief argues in favor of the program by showing it to be in accord with:
► 2 treaties to which the United States is a party, the 1966 International Covenant on Civil and Political Rights and the 1965 Convention on the Elimination of All Forms of Racial Discrimination;
► The views of  the U.N. Working Group of Experts on People of African Descent, a panel of independent human rights experts
► Rulings in the European Court of Justice; and
► National rulings and laws in Australia, Brazil, Canada, India, New Zealand, and South Africa.
A look at the titles of briefs filed in Fisher suggests that hers is one of the few to invoke international context – scarcely a surprise given that the Court's been rather reticent on this topic in the last few years. Kudos to Connie and her colleagues for adding this perspective to the Court's deliberations.

U.S. adjusts view on human rights law in wartime

In its recent submission to the Human Rights Committee, the United States has backed off a long-standing position: that international human rights law does not apply in a time of armed conflict when international humanitarian law applies.
The change occurs in the Fourth Periodic Report of the United States to the U.N. committee, which monitors states parties' compliance with the International Covenant on Civil and Political Rights.
As noted Saturday in our first post on the Fourth Report, the United States appeared in its submission to soften its stance vis-à-vis the question of whether a state’s human rights obligations apply when that state is operating extraterritorially.
With regard to applicability of human rights law in time of armed conflict, the change of U.S. views was express. In particular, the United States stated in the Fourth Report, at ¶ 506:

With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.

The United States stated that “typically” it is international humanitarian law that regulates the conduct of states in armed conflict situations, according to the doctrine of lex specialis. In the next breath, however, the U.S. submission stated at ¶ 507:

In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections [such as the prohibition against torture].

Later, the submission noted that the choice of law question is fact-specific:

Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

These passages suggest both a more relaxed understanding of the relationship between these two bodies of law and an imperative to harmonize legal obligations when there is no direct contradiction between them.
In addition, this language suggests that it is the United States' view that there may be aspects of a state's conduct that are, in fact, governed by human rights law, even in a state of armed conflict.

U.S. ICCPR report coy on extraterritoriality

Over the holidays, the United States released its Fourth Periodic Report to the Human Rights Committee, which is charged with monitoring the 1966 International Covenant on Civil and Political Rights, to which the United States became a party in 1992. (Prior filings from the United States are available here.)
Needless-to-say, there is lots of interest in this 693-paragraph report. This and a subsequent post will focus the United States' vision of the applicability of human rights norms:
► Extraterritorially; and
► In time of armed conflict.
The first question, dealt with in this post, is the extraterritorial application of the ICCPR, and presumably other human rights obligations governed by similar scope-of-application language. (As an example, see IntLawGrrl Diane Marie Amann's 2006 ASIL Insight on the U.S. claim to this effect made before the Committee Against Torture.)
The interpretive question turns on the meaning of the second “and” in ICCPR Article 2(1), italicized below:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,without distinction of any kind…

The United States has historically interpreted this provision to mean that the U.S. owes duties only to those individuals who are both within its territory and its jurisdiction. Thus, in its 2005 Periodic Report (which actually encompassed both the Second and Third Reports, as we were in arrears), the United States insisted at ¶ 130:

[T]he obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party.

This position stayed consistent through at least 2007.
A more expansive interpretation yields the conclusion that the Convention applies to two classes:
► Persons within U.S. territory; and
► Persons within U.S. jurisdiction.
The latter would include,at a minimum, individuals within the effective but extraterritorial control of the United States. A difficulty of this position is envisioning examples of persons who would be within a state's territory, but not its jurisdiction. One option would include individuals on a portion of the territory of the state that is controlled by a rebel or insurrectionist party in a non-international armed conflict.
In ¶ 505 of its Fourth Report, the United States coyly acknowledges its prior position on this point, but also takes notice of three important legal sources setting forth the contrary view. The paragraph states in full:

Why every human rights advocate should know a little international law

(Thank you to IntLawGrrls, and in particular to Beth Van Schaack, for the opportunity to contribute this guest post, Part 1 of a 2-part series on effective human rights advocacy; Part 2 is here)

International law is a powerful tool for the protection of human rights. The law and the bodies that enforce it can provide real redress for victims of human rights abuses, build bridges between communities facing similar harms, bolster arguments for accountability, and mandate reforms. Though the regional and thematic treaty-based nature of human rights mechanisms may lead to some fragmentation or inconsistencies in the development of substantive rights, individuals and nongovernmental organizations’ thoughtful engagement with such mechanisms can yield profound results; for example:
► Vindication for the individual, as in this judgment from the European Court of Human Rights;
► A new beginning for the individual's community, as in this case from the Inter-American Court of Human Rights; and
► Landmark policy change for the individual's country, as in this matter before the Inter-American Commission on Human Rights.
In January of this year, I founded the International Justice Resource Center, a nongovernmental organization aimed at furthering such achievements -- in particular, helping human rights advocates know more about, and thus make better use of, international law.
IJRC is a global, user-oriented platform aimed at connecting grassroots human rights advocates with an underutilized, but powerful set of tools: international law and supranational human rights mechanisms. IJRC administers an online hub, tailored trainings and advocacy support, with the goal of democratizing understanding of and access to the range of international human rights norms and the bodies charged with their promotion and protection.
Based in Boston, Massachusetts, IJRC already has trained advocates working in various regions of the world, and responded to requests for advice from California to Kyrgyzstan. IJRC is also building an online platform where visitors can seek assistance, engage with one another, and access practical, user-friendly resources, such as instructional videos and manuals. No matter the issue they are facing or the country in which they work, advocates will be able to gain actionable knowledge of the standards and bodies relevant to their litigation, reporting, advocacy, or public education campaigns.
This past Wednesday, IJRC hosted Boston Human Rights Night, which brought together members of the academic, social justice, and legal communities to learn about one another’s work and explore the opportunities that international law presents for enhanced human rights promotion. The evening was also the culminating celebration of Campaign 501, which wraps up tomorrow.
At the Human Rights Night, an expert panel provided concrete examples from their work in the United States and abroad, allowing participants to take away a fuller understanding of the relevance of international law to social justice advocacy in the United States.
As panelists detailed, persons seeking improvement of – or accountability for – human rights conditions in the United States can:
► Prepare shadow reports for the expert bodies monitoring compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment;
► Engage with the Human Rights Council thematic special procedures’ factfinding and reporting activities or seek the body's intervention on specific human rights violations;
► Submit information for consideration by the U.N. Human Rights Council as part of its Universal Periodic Review process;
► Make specific allegations of human rights violations through the Human Rights Council complaints procedure; and
► Submit individual complaints to the Inter-American Commission on Human Rights, and furthermore, participate in that body’s thematic hearings and rapporteurs’ activities.
In addition, many international bodies are empowered to intervene and urge or order state action where the life or security of a person or the object of the litigation is at immediate risk of irreparable harm. These means of engagement do not include still another avenue: advocacy around and engagement with the work of the political organs of intergovernmental organizations.
Unfotunately, as I will discuss in Part 2, the post that will appear tomorrow, Human Rights Day 2011, there remains a gap between the availability and use of such international law resources.

Civil unrest in Egypt & the United States

News outlets have released a number of distressing reports and disturbing images over the past week from protests in the United States and Egypt.
► In the past several days, police in California and New York have allegedly beaten protesters participating in the Occupy Wall Street movement and doused them in pepper spray. (photo credit)
► In Egypt, where citizens have taken to Tahrir Square to demand a return to civilian rule, army soldiers and policy have allegedly fired teargas, rubber-coated steel bullets, and "birdshot" pellet cartridges into crowds.
In October of last year, following a similar wave of civil unrest throughout the Middle East and North Africa, the UN Human Rights Council passed Resolution 15/21 on the rights to freedom of peaceful assembly and of association. The resolution recalls that provisions in numerous international human rights instruments provide for freedom of assembly and of association. These include but are not limited to:

• Universal Declaration on Human Rights, art. 20(1);
  
• International Covenant on Civil and Political Rights, arts. 21 and 22;
  
• International Convention on the Elimination of All Forms of Racial Discrimination , art. 5(d); and
  
• African Charter on Human and Peoples' Rights, art. 10(1).

The Human Rights Council used Resolution 15/21 to call on

'States to respect and fully protect the rights of all individuals to assemble peacefully and associate freely'

and to

'take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.'

While the resolution recognizes that the freedom of peaceful assembly and of association

'can be subject to certain restrictions, which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others,'

these limitations on the freedom of assembly have been strictly interpreted.
For example, on several occasions, the U.N. Human Rights Committee has interpreted ordinances that require advance notice of public meetings, as well as the dispersal of peaceful demonstrations with excessive force, as restrictions on the freedom of assembly guaranteed under the ICCPR.
In addition to affirming the freedom of assembly and of association, Resolution 15/21 also called for the creation of a position of a new special rapporteur who, among other tasks, is charged with investigating violations of the rights of association and of assembly and reporting on such violations to the Council and to the U.N. High Commissioner on Human Rights. In a statement applauding the creation of this position, U.S. Secretary of State Hillary Rodham Clinton said:

'An active and vibrant civil society is one of the essential elements of a free nation, and I applaud the action by the international community today to take up the President’s call to stand firmly on the side of human rights and civil society and strengthen the ability of civil society activists around the world to bring about change in their countries. The United States will continue our leading effort to expand respect for this fundamental freedom for civil society members and other individuals all over the world.'

In March 2011, the former Chairman of Kenya’s National Human Rights Commission, Maina Kiai, was appointed the United Nations' Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. Special Rapporteur Kiai has already requested that he be invited to visit Egypt to examine in detail the enjoyment of the rights to freedom of peaceful assembly and of association, to identify any problems and to make recommendations on how these could be resolved.
As of yet, no such request has been made to visit the United States.

The sweetest place on Earth?

Many readers likely followed the news in mid-August of an unusual labor action a Hershey plant in Pennsylvania: a strike by foreign students, many in engineering and medicine, visiting the U.S. on the J-1 summer student work-travel visa program. Recruited with the promise of cultural exchange and lucrative employment, many of these students were forced to work the night shift at a chocolate factory under back-breaking and unsafe conditions -- not exactly the "Charlie and the Chocolate Factory" scenario that one foreign student had envisioned.
Last week, the August 2011 Human Rights Delegation to Hershey, Pennsylvania released a comprehensive report situating the experience of these students in an international human rights framework. The delegation was composed of a clinical teaching fellow, a labor professor, and two law professors, Colleen Breslin, Stephanie Luce, Beth Lyon (pictured near right), and Sarah Paoletti (pictured far right), who interviewed several students and reviewed background materials relating to their work situation. Though the U.S. Department of Labor and the U.S. Department of State are also investigating the treatment of these foreign students, this "shadow" report seems a creative and powerful use of human rights law in the domestic context.
The Human Rights Delegation report contextualizes the ill-treatment of the foreign students, linking their situation with that of domestic laborers. The authors describe a "national narrative in which employers are increasingly relying on layers of contracting and subcontracting to shield themselves from their moral and legal obligations to their workforce" and "increasingly treat workers as disposable labor commodities" rather than human beings possessing fundamental human rights. The parallels with the treatment of undocumented migrant workers in the United States are difficult to dismiss.
The report describes various violations of human rights law, including the right to freedom of association awarded to "everyone", without regard to nationality or immigration status, under Article 22 of the International Covenant on Civil and Political Rights.
At every turn, by the student exchange program that brought them over, by their employer in the United States, and by agencies from their home countries, the students were told that they could not participate in a strike or other activity at the worksite. Varying sanctions were threatened, ranging from termination from the program to deportation and a bar from returning to the US for five years.
The report exposes the dangerous potential for abusive labor practices under the J-1 visa. The program creates a highly unequal relationship between the students and their employers. The students are far from home, in a new cultural and social context, and have been brought in to work for just a few months. Many students and their families take on significant debt in order to participate in a J-1 program. The employer has the power to single-handedly terminate the student's immigration status, which would in turn make it impossible for the student to repay these debts. Given that there are no avenues offering students independent information about their rights, it would be unsurprising if many suffer exploitative work situations in silence.
Indeed, the surprising part of the story is that these students, from countries as varied as China, Kazahkstan, Moldova, Mongolia, Poland, Romania, Turkey, and the Ukraine, had the courage to stand up against the treatment to which they were subjected.
Sadly, the story of the J-1 visa -- of excessive discretion around immigration status given to individuals with incentives to abuse that power -- is one that appears throughout the immigration realm.
Apart from the need to fix the structural flaws of the program as the report recommends, this story demonstrates how the creation of a human rights culture in the immigration bureaucracy and beyond is vital when it comes to protecting immigrants in America today.

Will tribunal bring Bangladesh justice?

(Part 2 of a 2-part series; Part 1 is here)

Having outlined the background and nature of the International Criminal Tribunal (ICT) in Bangladesh (flag at right) in yesterday's post, today I will discuss specific concerns raised n the international community, most particularly by nongovernmental organizations such as Human Rights Watch and by Stephen J. Rapp (below, second from left), U.S.Ambassador-at-Large for War Crimes Issues.

Issues of Concern
As a preliminary matter, one must wonder why Rapp and others are so exceptionally concerned with what goes on in Bangladesh’s domestic courts and why the Bangladesh government has shown itself to be at all receptive to outside intervention.
After all, the victims and the alleged perpetrators of crimes committed during the 1971 War of Liberation are Bangladesh citizens. The majority of crimes occurred in Bangladesh (East Pakistan at the time), and the trials and post-conviction incarceration will occur in Bangladesh courts and prisons. Moreover, as noted in a position paper by the International Crimes Strategy Forum, a coalition working toward accountability relating to the 1971 conflict,

'the legitimacy of the International Crimes (Tribunals) Act is dependent not upon any international instrument of law, irrespective of Bangladesh being or not being a party to it, but on an overwhelming decision of the Bangladesh Parliament, a democratically elected body of representatives constitutionally mandated to enact legislation. As such, the ICT can only be interpreted in light of the framework set by by the ICTA and not any other legal instruments of international nature.'

However, as Rapp has pointed out, the ICT was established specifically to prosecute international crimes, such as genocide and war crimes, which are crimes defined under international law and recognized as violations of international law.
Despite the fact that the ICT proceedings will occur in domestic courts pursuant to domestic statute, there is justifiable interest in seeing that “international law” is followed according to international standards.
Since the promulgation of the 1973 Act, there has been considerable development in international criminal law, and much can be gained by looking at other international forums, such as the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, the Special Court of Sierra Leone, and the International Criminal Court.
Finally, as a state party since 2000 to the International Covenant on Civil and Political Rights, Bangladesh is obligated at all times to honor the treaty -- most especially when it purports to be enforcing international law.

Fundamental Constitutional Rights
By far, the most troubling concern is that related to the constitutional amendments (Articles 47(3) and 47A), which deny a number of constitutional protections to Bangladesh citizens who are being detained or prosecuted under the ICTA.
For example, Article 47(3) prohibits such individuals from challenging any law, including the amendments themselves, on the ground that it is unconstitutional. Article 47A of the Bangladesh Constitution further strips individuals detained or prosecuted under the ICTA of specific constitutional rights that are guaranteed to all other persons in Bangladesh, such as the right to protection of the law (Article 31), protection from ex post facto (retroactive) laws and the right to a speedy and public trial (Article 33), and the ability to enforce guaranteed rights (Article 44).
These are fundamental due process rights, and are guaranteed not only in international law, but also to all other suspected criminals in Bangladesh. Withholding such rights from suspected war criminals who have not even been convicted does not engender faith in the fairness of the process or outcome.

Rights of the Accused
There are a number of worrisome provisions in the ICTA and the Rules of Procedure and practices of the Tribunal. They have have been set forth and discussed in detail, with specific reference to other tribunals’ rules and procedures for point of comparison, in a 10-page letter that Rapp sent the Bangladesh government, as well as in letters by Human Rights and other international organizations. The following are some of the many concerns going to provisions affecting the rights of the accused:
► Individuals can be arrested and questioned before formal charges are brought, they can challenge their detention only once, and they have no right of appeal. Currently, at least five individuals have been in detention for over six months, some as long as ten or more months. They can expect no possibility of release until after their trial, given that they have already lost their initial applications for bail.
► The rules also allow for the interrogation of the (informally) accused without counsel present. There is no procedure for informing questioned individuals of their privileges or rights or that they are entitled to counsel. Already, several detainees have been interrogated without counsel present based on the prosecution’s request to the Tribunal. During the interrogations, which lasted all day, the detainees were denied the opportunity to have private conversations with their counsel during breaks, and were prohibited from discussing the interrogations with counsel altogether.
► There has been no investigation into claims of torture and abuse of individuals in detention.
► There is no procedure for challenging the jurisdiction of the Tribunal or making constitutional challenges to the ICTA or Rules of Procedure.
► There is no requirement that the prosecution disclose exculpatory evidence (“unused evidence”) to defendants or their counsel, nor are there any provisions that enable a defendant to request discovery. Additionally, the prosecution is only required to disclose the evidence upon which it will rely three weeks in advance of the trial to the Tribunal; rules do not specifically require disclosure to defendants or their counsel.
► The Act specifically provides that the Bangladesh Evidence Act and the Code of Criminal Procedure, both of which apply in all criminal proceedings in Bangladesh domestic courts, do not apply to proceedings under the ICTA. Further, the Act provides that

'the Tribunal shall not be bound by the technical rules of evidence.'

► Though the burden of proof is on the prosecution, there is no presumption of innocence. Additionally, the burden of proof is reversed to the defendant in an alibi defense.
It could be argued that some of these inadequacies, standing alone, are not enough to evince a lack of due process. However, allowing all of them in the same proceeding -- especially when considered together with the constitutional amendments, which deny fundamental protections to the defendants --the ICT, as it now stands, falls far short of the international standards of due process that are evident in the rules and procedures in the ICTY, ITCR, and the ICC.
Moreover, the ICT rules and procedures, together with the constitutional amendments, clearly violate the guarantees under Article 14 of the ICCPR. In short, Bangladesh would be violating its international law obligations were the ICT to proceed without modification.

Motions and Appeals
There is no appellate chamber within the ICT, and the Rules of Procedure only allow for appeal on matters of law to the Appellate Division of the Supreme Court -- after the conviction of an accused. No procedures allow both parties to file motions for appropriate rulings and relief and to seek interlocutory appeal of key adverse decisions. Allowing parties to appeal decisions on evidence and other significant issues during the course of the trial, particularly given the complexity of international crimes, is more efficient and fair, and avoids waiting until an acquittal or conviction in the event error occurs during trial.

Neutrality and Equality of Arms
While an estimated 1,600 people took part in the atrocities, it is clear that the Tribunal will not be prosecuting soldiers in the Pakistani army or the Bengali freedom fighters.
Instead, the government appears to be targeting only Bangladesh citizens accused of collaborating with West Pakistan and committing certain crimes. Five of the seven alleged collaborators are members of the Jamaat-e-Islami party, Bangladesh’s biggest Islamic party and a partner in the main opposition alliance against the party now in control, the Awami League. The other two accused are from another opposition group, the Bangladesh National Party. This has led to criticism that the Tribunal is merely a vehicle to repress political opposition. To exacerbate the problem, there is no process in the ICTA or Rules of Procedure to challenge the Tribunal judges.
Equality of arms is a fundamental component of a fair trial, as every party must have the opportunity to present its case under conditions that do not place either party at a substantial disadvantage.
The Tribunal could enhance both the fairness of the process and the perception of fairness by establishing a Defense Office, which could play an important role in protecting the rights of the accused by ensuring that defense counsel have adequate support to prepare and present cases and by providing training on investigative techniques and access to jurisprudence and developments in international criminal law. Further, a Defense Office could maintain a list of qualified lawyers who can be assigned in the event that a defendant cannot afford legal counsel. Cases involving allegations of war crimes, crimes against humanity, and genocide are already complex, and the crimes here date back decades. It is important for a fair and just outcome that the attorneys for both sides have the knowledge, the expertise, and the ability to effectively bring their case or defend their clients.

Protection of Witnesses
The ICTA does not contain any provisions for the protection of witnesses whose testimony may be necessary in the trials.
It is the experience of other international crimes tribunals, particularly those involving war crimes and genocide, that witnesses have legitimate concerns about being subjected to intimidation, threats, and actual violence -- concerns that may keep them from testifying. The ability to ensure the attendance and safety of witnesses is an essential component of a successfully functioning tribunal process.
Accordingly, at a minimum, there should be resources and a process in place to protect witnesses, victims and family members before, during, and after court appearances, and to provide secure transportation to and from the court, as well as address the protection of personal information in a manner that will not deny the right of defendants to see the evidence against them.

Will Justice Prevail?
Just a few weeks after his second visit to Bangladesh, Rapp spoke at a briefing on the International Crimes Tribunal of Bangladesh, which was sponsored by the American Society for International Law, the Center for Human Rights & Humanitarian Law at American University’s Washington College of Law, and The Crimes of War Education Project. (credit for photo of, from left, Caitlin Reiger, Director of International Policy Relations for the International Center for Transitional Justice, Rapp, yours truly Kristine A. Huskey, and international criminal lawyer John Cammegh, panelists at ASIL event)
During the discussion, Rapp made clear that he would be returning to Bangladesh to continue his involvement and to provide assistance to the ICT.
Interestingly, at the end of the briefing, Bangladesh’s top diplomat to the United States, Ambassador Akramul Qader, passionately defended the Bangladesh justice system and Parliament. He took the opportunity to point out that nobody on the ASIL panel was from Bangladesh, resulting in a “one side of the fence” discussion.
Perhaps mirroring the political tension in Dhaka over the ICT, several Bangladesh citizens were quick to respond.
Among them was Zakir Hafez, an adjunct international law professor in the School of International Service at American University. He remarked that everyone in Bangladesh wants to see the perpetrators prosecuted, but said that he could not see “truth and independent justice” in the composition of the Tribunal judges or its rules. Hafez then summed up one reason why it is important that the ICT be fair:

'If the Tribunal is not in accordance with international justice and the rule of law, it will not be a good legacy for Bangladesh.'

As for why the ICT matters beyond Bangladesh, retired U.S. Air Force Colonel Morris Davis concluded the ASIL briefing with this compelling and poignant remark:

'I can tell you as a career military officer that war is hell. The law of war makes it a little less hellish and as this Tribunal contributes to that body of law – international humanitarian law and the law of war — every little bit contributes to that body of law and it is important, to all of us.'

As America was celebrating its freedoms over the July 4th holiday weekend, it was reported that the ICT issued additional amendments to its rules of procedure. The tribunal registrar stated that the amendments would ensure that the war crimes trials would take place under

'universally recognised standards of due process and justice,'

but conceded that the Rules of Procedure may not be up to international standards yet.
While the amendments may be designed to meet the concerns of Ambassador Rapp, who has yet to comment on the recent changes, they still fall short of securing full due process protections for the accused and fail to bring applicable laws into compliance with international standards, as pointed out by Human Rights Watch in a recent press release. The more significant amendments:
► Change the bail scheme and strong likelihood of indefinite detention, by requiring the release on conditional bail of an accused who has been detained for more than a year pending investigation of offenses. In exceptional circumstances, detention may be extended for a further period of six months.
►Allow counsel of an accused to be present if the accused is making a confessional statement. Counsel would still be prohibited from participating, making statements, or engaging in conversation with his or client during the interrogation.
► Allow both defense and prosecution to request the Tribunal to review any orders issued. Even with the changes, there is still no review of pre-conviction orders from an appellate court,nor the ability to challenge the jurisdiction of the Tribunal.
► Explicitly state that a defendant is presumed innocent until found guilty, that the prosecution must prove its case beyond reasonable doubt, and that the mere failure by the defense to prove a plea of alibi does not render the defendant guilty.
The new rules also give more power to the tribunal to ensure the protection of witnesses and victims, such as regarding security during transportation and accommodations.
The amendments, however, do not respond to a number of suggestions by Ambassador Rapp and international organizations
Most significantly, defendants are still denied their full rights under the constitution by way of a constitutional amendment.
Moreover, there is no reference to the possibility of using the ICC as a guide either procedurally or substantively, an addition that Rapp maintained could help resolve many concerns without requiring an overhaul of the applicable laws, including the Bangladesh Constitution, and rules entirely.
It remains to be seen whether justice for international crimes will finally prevail in Bangladesh.