American University Washington College of Law Volume 14, Issue 1 (Fall 2006)

Human
RightsBrief Center for Human Rights and Humanitarian Law
A Legal Resource for the International Human Rights Community

In This Issue
2 | The “War on Terror” and the Erosion of the Rule of Law: Mark W. Vorkink &
The U.S. Hearings of the ICJ Eminent Jurist Panel Erin M. Scheick

7 | A Developing Trend: Laws and Policies on Internal Displacement Jessica Wyndham

13 | Advancing the Right to Adequate Housing of Desperately Poor

People: City of Johannesburg v. Rand Properties Lilian Chenwi

17 | Persecution of Homosexuals: The Egyptian Government’s

Trojan Horse Against Religious Groups Hassan El Menyawi

21 | Reinterpreting Torture: Presidential Signing Statements

and the Circumvention of U.S. and International Law Erin Louise Palmer

26 | Israel, Hezbollah, and the Conflict in Lebanon:

An Act of Aggression or Self-Defense? Victor Kattan

Columns
31 | International Legal Updates
38 | Updates from the International Criminal Courts
44 | Updates from the Regional Human Rights Systems
47 | United Nations Update
48 | Legislative Watch
49 | NGO Update
51 | Book Reviews
52 | Center News/Faculty and Staff Updates
56 | Alumni Profile

Directors of the Center for Human Rights and Humanitarian Law | Hadar Harris, Executive Director
Robert Goldman | Claudio Grossman | Diane Orentlicher | Herman Schwartz | Richard J. Wilson
 Letter from the Editors

H
uman rights activists, academics, and practition-
ers have always faced obstacles in their work; such is The Human Rights Brief is a publication of the Center for Human Rights
the nature of the field. What is new, however, is the and Humanitarian Law at the American University Washington College
of Law. No portion of this publication may be reprinted without the
gradual attack, and persistent erosion, of the lan- express written permission of the Human Rights Brief. All correspondence,
guage of human rights; countries that, at least in their rhetoric, reprinting, and subscription requests, as well as articles submitted for
once spoke of human rights and the rule of law, now seek to under- publication, may be sent to: Human Rights Brief, Washington College of
Law, American University, 4801 Massachusetts Avenue, N.W.,
mine the legal instruments they fought to create. The lasting Washington, D.C. 20016. Telephone: (202) 274-4023. Fax: (202) 274-
effects of this remain to be seen. 4028. Email: hrbrief@wcl.american.edu. Website: www.wcl.american.edu/-
hrbrief. The views expressed in this publication are those of the writers
and are not necessarily those of the editors, the Center, or American
These and other issues were addressed by the International University. Copyright Human Rights Brief, 2006. ISSN 1533-6808.
Commission of Jurists Eminent Jurists Panel on Terrorism,
Counter-terrorism, and Human Rights at its U.S. hearings, held at Cite as 14 No. 1 Hum. Rts. Brief.
American University Washington College of Law. Meeting on the An equal opportunity, affirmative action university.
eve of the fifth anniversary of the September 11th attacks,
the Panel raised critical questions about the Bush Administration’s
Co-Editors-in-Chief
tactics in waging the “war on terror,” and the effect of these on Erin M. Scheick Mark W. Vorkink
human rights. Many of the issues raised concerned the legal scope
of presidential power, a topic closely linked to the proliferation Senior Articles Editors
in the U.S. of presidential signing statements. By including two J. Patrick Burns Kate Rakoczy
articles on these subjects, the Human Rights Brief aims to invite
Managing Editor
debate and to critically assess the long-term impact of these poli-
Jessica Farb
cies on human rights.
Publications Editor
In a series of articles published last year, the Human Rights Amy Tai
Brief considered the broad international implications of social and
economic rights. An article by Richard J. Goldstone analyzed a Articles Editors
South African constitutional claim to the right to housing in Marisa R. Bassett Nasseem Ramin
Gwyneth Hesser Rosemarie Salguero
Government of the RSA v. Grootboom. Consideration of the right to Zeenat Iqbal Leslie Thompson
housing in South Africa continues in this issue in an article by Brian Israel
Lilian Chenwi that examines the recent decision of the High Court
of South Africa, City of Johannesburg v. Rand Properties. Staff Writers
Huwaida Arraf Mihir Mankad
Edward Babayan Courtney Nicolaisen
The Israeli incursion in Lebanon this past summer brought Jessica Anna Cabot Elizabeth J. Rushing
home the reality and the limitations of international humanitarian Miya Saika Chen Suzanne Shams
law. With more than 1000 civilian causalities, and the continued Angela Edman Solomon Shinerock
Jerald Hess Bjorn Sorenson
threat of unexploded munitions (most notably, Israeli cluster Natalie Huls Art Steele
bombs), the debate continues on how the human rights community
should respond. Victor Kattan’s article provides another perspec- Founders Board
tive on this contentious issue. Vanessa Allen, Gillian Brady, Michelle Donme, Gabriel Eckstein,
Robert Guitteau Jr., Fernando González-Martín, Claudia Martín,
Mair McCafferty, Rochus Pronk, Ayesha Qayyum, Diego Rodríguez-
Finally, in a precedent-setting opinion, the Inter-American Pinzón, Brian Tittemore, and Shashikala Warrier.
Court of Human Rights recognized the affirmative duty of States
Parties to uphold a higher standard of care for vulnerable people Alumni Committee
including, in particular, those with mental disabilities. Featured in Anebi Adoga, David Baluarte, Anne Briggs, Fernando González-Martín,
Jennifer M. Hentz, Richard H. Kamm, Sarah Paoletti, Alejandro Ponce-
the Brief, this progressive decision highlights the continued growth Villacís, Amy Stern, Jaime Underwood, and Kristi Severance.
of the human rights community and the protections available
under a system bounded by the rule of law. HRB

1
 The “War on Terror” and the Erosion of the Rule of Law:
The U.S. Hearings of the ICJ Eminent Jurist Panel
by Mark W. Vorkink & Erin M. Scheick*

it, have remained divisive issues. A former legal advisor to the Bush

T
he lasting viability of human rights instruments
and their supporting legal framework is best tested dur- Administration, Bradford Berenson, framed the current conflict as
ing periods of conflict and political upheaval. “akin to the Goth’s sacking of Rome,” which threatened “the pos-
Terrorism,1 and the methods of its prevention, offers a sible emergence of another 1,000 years of religious obscurantism
litmus test for the sustainability of these instruments and for the and the destruction of our liberal values.” Such hyperbolic descrip-
rule of law as a whole. Government action to identify, apprehend, tions are indicative of two central propositions underlying the Bush
and prosecute those responsible necessarily strains the exercise of Administration’s counterterrorism policy: (1) the uniqueness of the
individual rights and freedoms. How this tension is resolved deter- terrorist threat and (2) the importance of interpretation in defining
mines how and to what extent such rights may be realized. the reach of human rights, humanitarian, and constitutional law.
In recognition of the conflict between individual rights and
counterterrorism measures, in August 2004 the International
Commission of Jurists2 brought together more than 160 interna-
tional jurists who adopted the Berlin Declaration on Upholding
Human Rights and the Rule of Law in Combating Terrorism. The

Courtesy of the Washington College of Law

Declaration’s 11 principles mediate the relationship between coun-
terterrorism measures and human rights, and identify a core set of
principles that states should adhere to in executing counterterrorism
policies. To further explore this intersection, the ICJ established the
Eminent Jurists Panel on Terrorism, Counter-terrorism and
Human Rights, whose eight members3 are tasked with exploring
the scope of modern terrorism and the effect of government coun-
terterrorism efforts on human rights. Chaired by Justice Arthur
Chaskalson, the Panel will conduct hearings and invite submis-
sions from NGOs, lawyers, academics, and experts in ten countries
and six geographic regions over the next 18 months. Ultimately,
The Eminent Panel of Jurists, from left: Robert K. Goldman; Hina Jilani;
the Panel will issue a final report documenting their findings. Arthur Chaskalson; Mary Robinson; Georges Abi-Saab; and Vitit Muntarbhorn.
On September 6th–8th, 2006, the Panel conducted its U.S.
hearings at American University Washington College of Law in
Washington, D.C. Activists, lawyers, members of civil society, and Conceptualizing modern terrorism as historically unprece-
government officials testified on the ramifications of the U.S. dented is a common rhetorical-framing technique used to justify
“War on Terror” and the effects of recently enacted Administration controversial counterterrorism measures. The Panel heard from a
policies on human rights and the rule of law. This article docu- number of persons who stressed that the “War on Terror” was
ments the topics covered by these hearings and provides an different from other conflicts. Efforts to combat this “new” threat
overview of the salient issues raised. These include: (1) the political must then, so the argument goes, be equally novel, and should nei-
and legal framework of the “War on Terror”; (2) the impact of post- ther be judged nor constrained by adhering to existing legal norms.
9/11 programs on human rights and the rule of law; and (3) the This conceptualization is particularly evident in the use of a war or
use of military versus criminal approaches to combating terrorism. military paradigm as opposed to a law enforcement approach.
Above all, the testimony given before the Panel evidenced an emerg- That the current conflict is different, unconventional, or
ing consensus that the Bush Administration’s “War on Terror” has asymmetrical in no way validates Administration calls for a carte
resulted not only in an assault on individual human rights but, blancé in mounting a U.S. response. Comparing the present con-
more broadly, in an erosion of the rule of law that threatens the flict to the U.K.’s experience in Northern Ireland, ICJ President
continued strength of domestic and international legal systems. Arthur Chaskalson noted that:
There was almost complete acceptance by everyone we spoke
The Framework of the Bush Administration’s to … [in the U.K.] that they had really made a mistake in
Counterterrorism Measures Northern Ireland. Their policies … didn’t stop terrorism, they
There is little doubt that the events of September 11th fun- provoked it: people who might not have become involved [with
the IRA] became involved …. The Irish experience had been
damentally altered U.S. approaches to security, intelligence, and
that the harsh measures that were taken were counterproduc-
counterterrorism. Yet while the attacks on the World Trade Center
tive, and that progress was made only when they [the U.K.]
and the Pentagon confirmed the material nature of a terrorist changed their policies.4
threat, the scope of this threat, and the force necessary to counter
Emphasis on the uniqueness of the terrorist threat nonetheless
remains a fundamental rhetorical device of the Bush Administration
* Mark W. Vorkink and Erin M. Scheick are J.D. candidates at the Washington in arguments supporting its counterterrorism policies. There is as
College of Law and Co-Editors-in-Chief of the Human Rights Brief.

2
yet little or no recognition by the administration that documented
abuses and legal violations committed pursuant to these policies
frustrate effective counterterrorism efforts.5 Testimony before the
Panel, focusing in large part on the “shades of gray” inherent in
U.S. counterterrorism efforts, belies the Bush Administration’s
approach to the rule of law, which is predicated on an insistence on
interpretation and the recognition of the limits of traditional legal
standards. “We do not engage in torture” is a persistent refrain.
Little analysis is made, however, on the subjective definition of
“torture” and how, if construed so narrowly, any and all interroga-
tion methods would be permissible.
Parsing the definition of torture is but one example of how
careful use of interpretation functions to circumvent clearly estab-
lished legal principles. Officials sympathetic to the Administration’s
position cautioned the Panel that its investigation of alleged abuses
ignored the more fundamental issue of the underlying legal frame-
work supporting Administration policies. “The debate exists one
“You can’t just look at this as a few people who are affected;
it’s actually a whole legal structure. You must look at
the cumulative effect of what has happened.”
step prior to that,” Berenson argued, “that is, whether the
Administration is acting in violation of [its subjective interpretation
of ] the law.” Given the response of the majority of the witnesses,
and the questions raised by the Jurists themselves, this position is
far from tenable. The extreme nature of the violations documented
refutes any suggestion that such abuses fall short of torture, regard-
less of the administration’s definition. Testimony before the Panel
revealed that, to the contrary, these abuses represent an affirmative
administrative policy to circumvent and disregard fundamental
principles of U.S. and international law.
The Impact of Post–9/11 Administration
Counterterrorism Policies
Much of the discussion presented during the three days of
hearings focused on the immediate and potentially lasting effect
of Bush Administration counterterrorism measures. Speaking on
behalf of victims of torture, prisoners in indefinite detention, and
citizens with constitutional claims, witnesses described how post-
9/11 programs have inflicted direct and cognizable harm to individ-
uals and the administration of justice. Testimony revolved around
documented abuses, the weakening of judicial processes, and the
global impact of U.S. policies, all of which are mutually reinforcing.
“You can’t just look at this as a few people who are affected,” Justice
Chaskalson urged, “it’s actually a whole legal structure …. You
must look at the cumulative effect of what has happened.”6 As will
be shown, the continual erosion of judicial safeguards within the
United States could precipitate an international decline in the
strength of human rights and humanitarian law.
Documented Abuses
Research from the Center for Victims of Torture debunks many
common myths about torture.7 Contrary to the Administration’s
3
opinion, torture does not reveal quick, reliable information.
Information obtained by torture is used to imprison the guilty and
innocent alike. Torture corrupts the perpetrator, and its applica-
tion is never narrowly tailored. Stress, duress, and psychological
pressure are all forms of torture, prohibited by Common Article 3
of the Geneva Conventions. Finally, torture is incongruous with
international standards of morality.
In the five years since 9/11, there have been numerous allega-
tions and extensive evidence of torture and cruel, inhuman and
degrading treatment in detention and prison facilities run by the
United States. Beginning in 2003, allegations of abuse of prisoners
held in the Abu Ghraib prison in Iraq surfaced, and by early 2004,
the media released lurid, disturbing photos depicting U.S. military
personnel abusing prisoners. “Practices of forced nudity, taunting,
waterboarding, and other practices have been held by the court to
be violations of U.S. law,” declared Eric L. Lewis, member of the
board of directors of the human rights advocacy group Global
Rights. Even so, “these practices have been shown to be a direct
result of decisions and orders given by the administration and
specifically, the Secretary of Defense.”
Though reports of secret CIA prisons surfaced nearly a year
ago,8 it was not until early September 2006 that President George
W. Bush confirmed the existence of the secret facilities. The presi-
dent denied allegations of torture, but admitted the use of “tough”
interrogation tactics aimed at obtaining information for national
security or prosecution purposes.9 Fourteen high-profile detainees
were recently transferred from the secret prisons to the U.S. army
base in Guantánamo Bay, Cuba. However, allegations of prisoner
maltreatment and abuse at the base are rampant, and three
detainees committed suicide in June 2006. Furthermore, detainees
at Guantánamo are frequently declared “enemy combatants” and
face arbitrary and indefinite detention.
Finally, the U.S. has been complicit in suspected torture and
cruel, inhuman, and degrading treatment through the reliance on
extraordinary rendition. The Convention Against Torture, to
which the U.S. is a party, expressly forbids the extradition of any
person to a country where there are “substantial grounds” for
believing that there is a danger of torture. Known as the principle
of “non-refoulement,” States Parties should consider both historic
and current patterns of gross, flagrant, or mass human rights
violations as one factor when evaluating the risk of torture in a
receiving country.10
International obligations, however, have not kept the U.S.
from extraditing terrorist suspects to countries where there are
“substantial grounds” for believing that there is a danger of torture
or cruel, inhuman, and degrading treatment. Without any sem-
blance of a judicial process, the U.S. has relied upon “extraordinary
renditions” to send terrorist suspects to Syria, Egypt, and other
countries in the Middle East and Asia where human rights abuses
are well documented.11 The Bush Administration defends these
renditions by claiming that, in all instances, diplomatic “assur-
ances” are secured from the receiving country. However, these
“assurances” bear no legal weight and thus present no legitimate
protection to the extradited person. As it is difficult to document
torture, which is generally practiced in secret, it is likewise difficult
to challenge the breach of a diplomatic assurance. In practice,
extraordinary renditions allow the U.S. to turn a blind eye to mal-
treatment and abuse of detainees in the name of national security.
Weakening of Judicial Processes
Between August 2004 and March 2005, 558 detainees held at
Guantánamo Bay were assessed before an ex parte Combatant
Status Review Tribunal, which found 520 to be “enemy combatants.”
According to the U.S., these “enemy combatants” could be held
indefinitely (or until the end of the “war on terrorism”), without
the right to speak with a lawyer or challenge their detention before
a judicial body.12 As of June 2006, only 14 “enemy combatants”
had been charged with a crime triable before a newly established
military commission. The nearly 500 detainees remaining
at Guantánamo have not been charged with any crime and thus
cannot expect to be brought before any court of justice.13
In Hamdan v. Rumsfeld,14 the U.S. Supreme Court held that
the military commissions established by the Bush Administration
to try Guantánamo detainees violated both the Uniform Code
of Military Justice and the Geneva Conventions. The proposed
military commission would permit the use of hearsay, unsworn tes-
timony, and evidence obtained through torture, and could forbid
the defendant and the defendant’s attorney from viewing the evi-
dence to be used against the defendant at trial. The government
maintained that the Geneva Conventions did not apply as the
detainees were not prisoners of war. But the Supreme Court
disagred, maintaining that at the very least, Common Article 3
(the prevention of torture and cruel, inhuman, and degrading
treatment) was applicable to the detainees held at Guantánamo.
Prior to adjourning for the mid-term election season, both
houses of the U.S. Congress passed the controversial Military
Commissions Act of 2006. The Act establishes Military
Commissions, redefines U.S. obligations under Common Article 3
of the Geneva Conventions, strips detainees of their right to file
habeas corpus pleadings, allows for evidence obtained by coercion
or hearsay, and limits a defendant’s right to examine government
evidence.15 In effect, the Military Commissions Act codifies the
incremental erosion of defendant judicial rights that has occurred
since September 11, 2001.
Global Impact
The global impact of the U.S.-led “War on Terror” and the
subsequent procedures employed by the Administration to capture
and detain suspected terrorists must not be understated. When
asked whether U.S. actions in the fight against terrorism could
erode the international human rights framework, Justice
Chaskalson responded:
I think this does pose a threat to it. So far, at the international
level, there has been an insistence on compliance with interna-
tional human rights and humanitarian law standards, but I do
think we are seeing as we move around the world, we are seeing
practices that are quite questionable in relation to those stan-
dards. And it does have an impact because this network is inter-
dependent, and you start tinkering with it, it is potentially
4
dangerous because it could start unraveling and that would be
a very serious thing.16
In light of the Military Commissions Act of 2006, which
redefines Common Article 3 and grants the president the power
to issue Executive Orders further interpreting the meaning of the
article, Justice Chaskalson’s warning of the “unraveling” of the
international human rights system rings true. The president’s rein-
terpretation of a 50-year old instrument of international law
threatens the foundation of worldwide consensus on the laws of
war. Furthermore, the Administration’s disregard for the protec-
tions enshrined by Common Article 3 — what can be viewed as
the heart of the Geneva Conventions — will jeopardize prohibi-
tions of torture worldwide. Jumana Musa, of Amnesty
International, highlighted this fact:
What is more worrisome is that there are several countries that
have done similar things in setting up military commissions. In
the past we have influenced these countries, and now the U.S.
is losing its ability to influence other countries. Hosni
Mubarak, president of Egypt, declared that this movement of
the U.S. to military commissions validates the historic use of
military commissions elsewhere.
The Administration’s clampdown on other civil liberties and
fundamental freedoms reinforces Musa’s sentiment. Though the
U.S. is a beacon of “freedom of the press,” the increasing secrecy
within the Administration and the fear of espionage is threatening
the freedom of journalists throughout the country. Warrantless
wiretapping programs and the targeting of Arab and Muslim-
Americans for suspected terrorist activity likewise threaten civil
liberties within the U.S., and the implications of these policies are
far-reaching. The ironic impact the fight against terrorism is having
on U.S. domestic policy is profound, even as the U.S. continues to
advocate for expanding democracy and freedom around the world.
The Implications of the “War on Terror”
Political discourse reveals the Bush Administration’s success
in framing the present conflict as a “war on terror” — whether or
not such a description is legally appropriate. In many respects, the
government’s invocation of a military paradigm is a leading cause
of the abuses documented above; the language of war serving,
above all, as a justification for the use of so-called “emergency” pro-
cedures. But as one witness noted, “The problem is that it is part
metaphor and part reality. The constant use of the word ‘war’ is a
debater’s trick to persuade the audience that anything goes, and
that executive power is supreme over either legislative or judicial
[power].” Testimony before the Panel showed that one of the great-
est obstacles to the maintenance of human rights today is this
struggle against the pervasiveness of this military paradigm.
The administration contends that use of a war framework is
warranted in light of the potential magnitude of harm and the
undeterable nature of the belligerents. In support of this argument,
administration officials cite to Osama bin Ladin’s declaration of
war and to NATO’s invocation of Article 5 immediately following
the 9/11 attacks. With specific regards to the latter, it has often
been stated that “If there was one lesson of 9/11, it was that this
was not simply a criminal act, and that the war being waged
against us was really a war, not metaphorically or abstractly.” Yet
this position is untenable. That the orchestration of the 9/11 plot
was as unorthodox as it was abominable does not warrant the inven-
tion of an equally aberrant response. “There is a tendency to say
that because terrorism is different, the [existing] structure doesn’t
apply,” Justice Chaskalson noted. Testimony given on behalf of the
administration clearly showed that it is this presumed uniqueness
of the threat that operates as the primary rhetorical ammunition
for the government’s “War on Terror.” When pressed by the Panel,
however, this justification failed.
In her testimony before the Panel, Gabor Rona, International
Legal Director at Human Rights First, reiterated that International
Humanitarian Law (IHL) conceives of only two “states” of armed
conflict: (1) international armed conflict — conflicts between sov-
ereign states; and (2) non-international armed conflict — insurrec-
tions, civil wars, or guerilla operations that are fundamentally
domestic in both their scope and objective. Temporarily setting
aside the more problematic issue of defining the United States’
“enemy,” the paradox presented by the “War on Terror” is that
while waged globally, the belligerent identified by the U.S. is
“The war on terror has been
as much tactical as political.
Even if you can classify it as
a war, if we accept that, we
should accept the totality of
the rule of law, rather than
selectively using the rules of
war for political purposes.”
unquestionably a non-state actor. This situation is prohibited by
IHL. Armed conflicts must either be international, with exclusive
state participation, or non-international, involving one of many
non-state actors. Clearly, the “War on Terror” falls outside estab-
lished legal understandings of IHL.
That this “war” is incongruous with international law has not,
however, deterred the government from its military approach. One
of the primary reasons for its continued use is the administration’s
admitted refusal to employ a law enforcement (or criminal) model.
As Professor Baher Azmy of Seton Hall Law School argues, U.S.
adoption of a criminal law paradigm akin to that successfully
implemented by many European countries would proscribe,
among other things, secret prisons, indefinite detentions, and tar-
geted killings of individuals affiliated with various organizations.
The ubiquitous use of these rights-abusive techniques makes clear
the administration’s reluctance to criminally prosecute suspects.
Not wanting to resort to criminal law, and recognizing the con-
straints of universally accepted laws of war, the administration has
devised a legal strategy to wage its “War on Terror” that is unprece-
dented in its arbitrary (and unsupported) interpretation of domestic
and international law. The most shocking examples of this new
legal framework include the enemy combatant designation, and
the undefined nature of the government’s military campaign.
5
Witnesses expressed grave concern regarding the implications
of designating individuals as “enemy combatants.” Pursuant to
the law supporting the “War on Terror,” an enemy combatant is
legally an unprivileged belligerent, and retains none of the rights
traditionally afforded military personnel in international armed
conflicts — including mandated detention schemes, POW status,
and freedom from torture and cruel, inhuman, or degrading treat-
ment or punishment. Lacking these protections, the administration’s
“notion of a global war … suggests that if I can identify an Al-Qaeda
member [or one affiliated with an organization linked to Al-Qaeda],
I should be able to directly attack that person and that would not
constitute a violation of either the law of war or human rights law.”
In more precise terms, Executive Director of Human Rights Watch
Kenneth Roth noted that once you are designated an enemy com-
batant, “the administration could simply shoot you and not even
resort to detention.” This conclusion is all the more shocking when
one considers the complete absence of procedural safeguards of the
Combatant Status Review Tribunals used to determine whether an
individual is an enemy combatant.
It is clear that the legal framework of the “War on Terror” has
resulted in numerous violations of human rights and humanitarian
law. What is less understood, and what many witnesses articulated,
is that the scope of this conflict and its undefined objective presents
a significant obstacle to any foreseeable solution. Witnesses for the
administration were asked repeatedly to define the terms of this
new conflict, and to identify both the nature of the “enemy” and a
timeline for the hostilities. No clear answers were given. Berenson
argued that contrary to the suggestions of the Panel, this war was
being waged against a readily identifiable enemy: Al-Qaeda.
But his inclusion of other groups who “use the same means” as
Al-Qaeda lends support to arguments made by opposing witnesses
that, in actuality, the “war on terror” lacks any real meaning because
“one cannot engage in a war against a method [or means] of war.”
Moreover, in addition to lacking a clearly defined “enemy,” a
deficiency that has allowed for the easy manipulation of military
objectives (the Iraq invasion a clear case in point), the Panel
expressed concern over the seemingly endless nature of the “War
on Terror.” The effect of this on human rights is most apparent
with respect to the detention of enemy combatants. Under U.S.
interpretation of the law of war, those designated as enemy com-
batants can be held until the cessation of hostilities. With no end
in sight, this designation is, in effect, a mandatory life sentence for
any detainee, executed pursuant to a determination hearing lack-
ing even a bare minimum of procedural protections.
In the end, whether the U.S. is engaged in a “war” under
established principles of international law is less important to the
protection of human rights than whether the U.S. is strictly adhering
to fundamental procedural guarantees in whatever counterterror-
ism policy it adopts. As ICJ Jurist Hani Jilani stressed, even if the
U.S. succeeds in its argument that a state of war exists between it
and Al-Qaeda or another organization, war, like law enforcement,
must be conducted pursuant to clearly established rules. The
Supreme Court’s recent decision in Hamdan v. Rumsfeld 17 revealed
that, at least in terms of Common Article 3, the administration’s
capricious and deficient procedures were legally impermissible.
Ultimately, testimony on the applicability of a military framework
suggests that “the war on terror has been as much tactical as polit-
ical. Even if you can classify it as a war, if we accept that, we should
accept the totality of the rule of law, rather than selectively using
the rules of war for political purposes.”
 Conclusion
At the close of their testimony, many witnesses stressed that
while individual violations were deplorable, their aggregate effect
on human rights and the rule of law was most detrimental. When
combined with the rhetoric of U.S. foreign policy, the “War on
Terror” has significantly reduced the global capacity of a human
rights discourse.
Speaking on behalf of the Carter Center, Senior Advisor for
Human Rights Karin Ryan argued that the rhetorical linkage
between terrorism and democracy has ill-served an already battered
human rights community. Terrorism is too often juxtaposed with
democracy, with the latter serving as a cure-all for the myriad
social, political, and economic factors that can precipitate terrorist
activities. U.S. advancement of democracy, then, as a fundamental
element of its foreign policy strategy in the “War on Terror” has led
in some cases to a backlash against democratic movements that are
viewed with suspicion as agents for U.S. hegemony. “This confla-
tion of democracy and the fight against terrorism,” Ryan noted, “is
a problem for human rights activists who are cast in a pro-Western
light in their [advocacy] for democratic reforms.” Responding to
this comment, ICJ Jurist Hina Jilani asserted that democracy, or its
absence, is not the problem. Instead, disenchantment with the
conduct of so-called democratic governments poses the greatest
threat to the viability of democratic institutions. If the United
States and others want to speak in the language of democracy and
human rights, their policies must reflect these values, particularly
those linked to counterterrorism measures.
Beyond the criticisms and the deficiencies of current coun-
terterrorism measures, there remain a number of persistent ques-
tions that have not yet been addressed by either the U.S. or the
human rights community. Foremost among these is the status of
detainees. Morton Halperin, Director of U.S. Advocacy for the
Open Society Institute, openly admitted that “what you can do
with people of whom you have evidence of terrorism is a difficult
question.” That some individuals at Guantánamo Bay might, if
given the opportunity, commit acts of violence against civilian tar-
gets is not disputed. The problem lies in the government’s inabili-
ty (or unwillingness) to normalize their legal status. “Democratic
countries need to sit down and figure out what to do about
detainees because, undoubtedly, there are some people who can’t
be convicted but who might still be a threat.” Whether or not one
agrees with the administration’s framing of the “War on Terror,”
there is little argument that, in its wake, a legal vacuum was creat-
ed. How long will this “war” last? Who can be prosecuted? Where
should detainees go after their release? These were questions raised
during the hearings to which there are no clear answers. Only over
time, and through careful and sustained negotiation among civil
society groups, national governments, and international organiza-
tions, can a resolution be achieved.
Upon completing their 18-months of international hearings,
the ICJ Eminent Jurists will issue a report in 2007, documenting
the intersection between terrorism, counterterrorism, and human
rights. While it is unlikely to contain explicit recommendations for
how countries should model their counterterrorism programs,
there is a good chance it will identify those procedures legally per-
missible under international law. Testimony before the Panel
revealed that counterterrorism measures often fall far short of these
legal benchmarks. Nonetheless, there is cause for some optimism.
6
Witnesses noted that the U.S. has proceeded in this direction
before, most notably in the passage of the Alien and Sedition Acts
of 1798. Yet the inherent checks and balances within U.S. law and
government functioned over time to redirect national policies
towards a rights-protective framework. More importantly, the
strong showing of the NGO community at the ICJ hearings illus-
trates the extent to which U.S. and international civil society are
mobilized. Private law firms, reluctant at first to defend detainees,
are now getting involved at increasing levels because of the overall
threat to the rule of law.
In the end, Justice Chaskalson noted that in the face of these
strong-arm policies:
There needs to be an awareness of the importance of these
rights — why we have these rights. They come out of long
struggles in the history of unfair procedures …. Over the years,
these protections have been brought to try to promote a more
open and democratic society. They lie at the core of democracy
because to achieve such a society, you must comply with the
rule of law, impose certain constraints on the exercise of govern-
ment power, and ensure vigorous public debate. As soon as you
start encroaching upon these rights, you start to damage the
pillars upon which a democratic society is built.18 HRB
ENDNOTES: The “War on Terror”
1 There is no official legal definition of terrorism, and it is not the intention of
this paper to offer one. The ongoing dialogue over the meaning of this term is
nonetheless inseparable from the debate concerning methods for its prevention.
2 The International Commission of Jurists is an international non-governmental
organization founded in Berlin in 1952 and dedicated to the implementation
and promotion of international law and the advancement of human rights. The
Commission is composed of sixty eminent jurists who collectively represent the
range of international legal systems.
3 These include: Justice Arthur Chaskalson, President of the ICJ and Chair of
the Panel, and former President of the Constitutional Court of South Africa;
George Abi-Saab, a leading expert in public international law and former judge
at the Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia and for Rwanda; Robert K. Goldman, Professor of Law at American
University Washington College of Law and former UN Human Rights Com-
mission expert on Counter-Terrorism and Human Rights; Hina Jilani, Lawyer
of the Supreme Court of Pakistan and former UN expert on human rights
defenders; Vitit Muntarbhorn, Professor of Law at Chulalongkorn University,
Bangkok, and current UN expert on human rights in North Korea; Mary
Robinson, former UN High Commissioner for Human Rights and the first
female President of Ireland; Stefan Trechsel, expert in criminal law and former
President and member of the European Commission on Human Rights; and
Judge E. Raúl Zaffaroni, current judge of the Supreme Court of Argentina and
an expert on Latin American and international criminal law.
4 Interview with Justice Arthur Chaskalson, President, ICJ Panel on Terrorism,
Counter-terrorism, and Human Rights, in Washington, D.C. (Sept. 13, 2006).
5 This is most clearly illustrated in the recently declassified portions of the
National Intelligence Estimate. Declassified Key Judgments of the National
Intelligence Estimate on Global Terrorism, The New York Times, September
26, 2006 at A16, http://www.nytimes.com/2006/09/27/world/middleeast/-
27itext.html. (accessed Oct. 3, 2006).
6 Chaskalson, supra note 4.
7 Center for Victims of Torture, Eight Lessons of Torture, http://www.cvt.org/-
main.php/Advocacy/TheCampaigntoStopTorture/WhatCVTknowsaboutTor-
ture (accessed Oct. 10, 2006).
8 Dana Priest, CIA Holds Terror Suspects in Secret Prisons, The Washington
Post, Nov. 2, 2005 at A1, http://www.washingtonpost.com/wpdyn/content/-
article/2005/11/01/AR2005110101644.html.
endnotes continued on page 30
 A Developing Trend: Laws and Policies on Internal Displacement
by Jessica Wyndham*

Freedom,” urged Member States to accept the Guiding Principles

I
nternally displaced persons (IDPs) are those who have
been forced from their home but, unlike refugees, remain as “the basic international norm for protection” of IDPs.5 Similarly,
within the borders of their own countries. Around the world, heads of state and governments assembled at the World Summit in
there are currently some 23.7 million women, men, and chil- New York in September 2005 recognized the Guiding Principles as
dren uprooted by conflict, communal violence, and civil strife.1 “an important international framework for the protection of inter-
Many millions more have been displaced as a result of natural nally displaced persons.”6
disasters and development projects. Cut off from their homes,
communities, and livelihoods, IDPs are often in destitute condi-
tions and vulnerable to human rights abuse.
For many years, the plight of IDPs remained largely ignored
both by national authorities and international organizations.
However, the 1992 appointment of a Representative of the Secretary-
General on Internally Displaced Persons, Francis Deng, marked the
commencement of sustained attention to developing solutions to the

Courtesy of Globalsecurity.org
challenge of internal displacement. Among the many activities pur-
sued by Deng and his successor, Walter Kälin,2 has been the devel-
opment of international standards for IDPs — the Guiding
Principles on Internal Displacement (Guiding Principles)3 — and
their incorporation into domestic legal and policy frameworks.
First introduced into the United Nations in 1998, the Guiding
Principles have become the basis for laws and policies in at least 16
countries. Indeed, the development of laws and policies on internal
displacement is becoming a trend in all regions of the world. From
Colombia to Sri Lanka, Uganda to Turkey, national authorities are
developing legislation aimed at translating sometimes abstract
provisions of the Guiding Principles into directives at the national
level. This is a welcome development, reflecting the primary
responsibility of national authorities for the protection of IDPs.
This article takes stock of the laws and policies that have been
developed, examines the different models that have been created,
draws attention to challenging issues that need to be addressed,
and identifies tools to assist legislators and policymakers in
enhancing protection for IDPs.
Guiding Principles on Internal Displacement
Thirty in number, the guiding principles are based on inter-
national humanitarian law, human rights law, and refugee law by
analogy. They set forth the rights of IDPs and explain the obliga-
tions of national authorities and non-state actors towards these
populations. They identify the various causes of internal displace-
ment, including natural disasters, human-made disasters, conflict,
and violations of human rights. In addition they cover all phases of
displacement: the pre-displacement phase, displacement itself, and
the return or resettlement and reintegration phase.
The Representative of the Secretary-General developed the
Guiding Principles to improve protection and assistance for IDPs.
Over the years, they have gained substantial international accept-
ance and moral authority. Resolutions of the Commission on
Human Rights and General Assembly describe the Guiding
Principles as “an important tool” and “standard.”4 In March 2005
the United Nations Secretary-General’s report, “In Larger
* Jessica Wyndham is the Legal Advisor on IDP issues for the Brookings-Bern Project
on Internal Displacement at the Brookings Institution.
7
IDPs collecting food rations in Ardamata Camp, West Darfur.
The Representative of the Secretary-General also intended
the Guiding Principles to “serve as useful points of reference in
drafting national legislation relevant to the internally displaced.”7
The Guiding Principles reflect and are consistent with international
human rights law and international humanitarian law, but they are
not binding upon states. The most effective way to ensure state
compliance with the Guiding Principles, therefore, is for states to
incorporate the principles into their domestic legislative framework.
National Responsibility
According to Principle 3(1) of the Guiding Principles, “national
authorities have the primary duty and responsibility to provide
protection and humanitarian assistance to IDPs within their juris-
diction.” The development of a national legal framework uphold-
ing the rights of IDPs and the adoption of a national policy or plan
of action on internal displacement are considered part of the
national responsibility of all states.8
The Representative of the Secretary-General has emphasized
the importance of developing a national legal framework based on
the Guiding Principles in all aspects of his work, including in his
reports to the General Assembly9 and to the Commission on
Human Rights,10 in his country missions,11 and in his statements
before international fora.12 The call for national legislation has
been echoed by Secretary-General Kofi Annan who in 2005 called
on Member States to “promote the adoption of [the Guiding
Principles] through national legislation.”13
From the outset following the dissemination of the Guiding
Principles, a small but growing number of national governments
and multilateral governmental organizations began to express their
commitment to implementing the Guiding Principles through
 national legislation.14 Countries that have developed laws, policies,
plans, decrees, frameworks and protocols aimed at regulating some
or all aspects of internal displacement include Angola, Burundi,
Liberia, and Uganda in Africa; India and Sri Lanka in Asia;
Azerbaijan, Bosnia and Herzegovina, Georgia, Russia, Serbia, and
Turkey in Europe; and Colombia and Peru in the Americas. Only
Courtesy of Eskinder Debebe, UN/DPI
IDPs in Maslakh Camp, Afghanistan prepare a meal.
the laws of Azerbaijan, Colombia, and Georgia pre-date the
Guiding Principles. The remainder have been developed and
adopted since 1998. Afghanistan, Nepal, Nigeria, and the
Philippines are in the process of drafting laws and policies.
Existing Models of Laws and Policies
An analysis of existing laws and policies on internal displacement
reveals that there are four principal models: 1) a brief instrument
adopting the Guiding Principles; 2) a law or policy developed to
address a specific cause or stage of displacement; 3) a law or policy
developed to protect a specific right of the internally displaced; and
4) a comprehensive law or policy addressing all causes and stages
of internal displacement.
The first model is exemplified by the one page Instrument of
Adoption of Liberia. Dated November 2004, this instrument adopts
the Guiding Principles “as a source of ongoing guidance and refer-
ence for the protection, dignity and rights of internally displaced per-
sons.”15 The wholesale incorporation of the Guiding Principles may,
at first glance, appear an effective way of ensuring the implementa-
tion of all provisions of the principles, suggesting absolute agreement
with the principles and ensuring against the dilution of its provisions.
However, such an approach denies national authorities, relevant gov-
ernmental bodies, civil society, and IDPs themselves opportunities
that the development of a more tailored law would present. These
opportunities relate both to the process of developing a comprehen-
sive law or policy and to the substance of that law or policy.
The Guiding Principles contain abstract general principles of
international law that, in order to be effectively implemented in a
national context, should be translated into concrete action on the
ground that reflect each country’s situation. The process of devel-
oping a comprehensive law or policy presents an opportunity for
all relevant stakeholders to share perspectives on the best practices
for addressing internal displacement. This process would necessar-
ily involve issues unique to each country such as the governmental
bodies that need to be engaged in providing assistance and protect-
ing the rights of IDPs; the vulnerable groups that could be adverse-
ly affected if displaced, for example, ethnic or linguistic minorities,
8
agriculturalists, the disabled, orphaned children, and women heads
of household; the potential causes of internal displacement,
including conflict, and natural and human-made disaster; and the
diverse means of preventing or mitigating the effects of such con-
flicts and disasters.
A wholesale adoption of the Guiding Principles results in
many unanswered questions, including: How are the rights of
IDPs to be protected? By whom? With what funds? Is there a
penalty for failing to protect the rights of IDPs? Who is monitoring
compliance with the instrument?
The second model, the most common among existing instru-
ments, is a law or policy that addresses a specific cause or specific
stage of displacement. The National Policy on Resettlement and
Rehabilitation for Project Affected Families of 200316 of India, for
example, addresses displacement only as a result of development
projects. The Angolan Norms on the Resettlement of the Internally
Displaced Populations17 address only the stage of return and resettle-
ment. Laws and policies that address only return and resettlement
have also been adopted in Azerbaijan, Bosnia and Herzegovina,
Colombia, Nepal, and Serbia.18
“Laws seeking to deal jointly
with refugees and IDPs may
fail in adequately addressing
the specific needs of each
group. The lack of a logical
and conceptual boundary
could result in IDPs becoming
‘lost among other categories
of forced migrants.’”
Most instruments in this category share two common charac-
teristics. First, with the exception of the Indian policy, they all
address return and resettlement, specifically in situations of conflict-
induced displacement. Secondly, these instruments have all been
developed in response to already existing situations of displacement.
The third model, like the second, is most often developed in
relation to an existing situation of internal displacement. Yet
instead of addressing a specific cause or stage of displacement,
instruments representative of the third model address a specific
right of IDPs. The Turkish Law on the Compensation of Damages
that Occurred due to Terror and the Fight Against Terrorism19 is one
such law. It was developed specifically to facilitate the provision of
compensation to those affected by on-going civil strife within
Turkey, many of whom are IDPs. Another example is the United
States Hurricane Education Recovery Act,20 which was developed
following Hurricane Katrina and addresses, among other issues,
the needs of displaced students and teachers.
The benefit of both the second and third models is that,
because they were developed in response to existing situations of
internal displacement, they reflect — to a greater or lesser extent
— the particular institutional, procedural, and regulatory challenges
faced by authorities, civil society, and the internally displaced in pro-
tecting IDPs’ rights. However, their scope is also limited, which leaves
broader issues concerning IDPs unattended. Moreover, in practice,
many of these laws and policies fail to address key substantive issues
that would contribute to their effective implementation. For exam-
ple, they may not provide a description of an IDP, identify funding
sources, or provide a mechanism to monitor responsibilities.21
The fourth model, and one which is not yet common, is that
of a comprehensive law or policy addressing all causes and stages of
internal displacement. The Colombian Law 38722 most closely
approximates a comprehensive law on internal displacement.
Although developed in the specific context of an on-going internal
conflict, the law addresses all stages of displacement, from preven-
tion of further displacement to creating durable solutions for
return or resettlement and reintegration. The law also addresses a
variety of causes of displacement, including internal armed con-
flict, civil tension, general violence, and violations of international
humanitarian law. However, it does not address displacement as a
result of natural disasters or development projects. The Ugandan
National Policy for Internally Displaced Persons23 also approximates a
comprehensive policy, addressing all causes of internal displacement.
Yet the policy does not specifically address prevention or solutions
aimed at the long-term durability of return or resettlement.
Issues of Concern
While a variety of models exist for addressing internal dis-
placement at the national level, an analysis of existing laws and
policies reveals recurring gaps that require particular attention
when developing a national legal framework. These include adher-
ence to the Guiding Principles, in particular the definition of an
IDP; identification of institutional responsibilities for implementing
and monitoring the instrument; and inclusion of consultation and
participation mechanisms for IDPs.
Definition of an IDP
The Guiding Principles on Internal Displacement are referred
to with approval in many existing laws and policies.24 Central to
the Guiding Principles is the definition of an “internally displaced
person,” as set out in the second paragraph of the introduction,
which states that:
[I]nternally displaced persons are persons or groups of persons
who have been forced or obliged to flee or to leave their homes
or places of habitual residence, in particular as a result of or in
order to avoid the effects of armed conflict, situations of gener-
alized violence, violations of human rights or natural or human-
made disasters, and who have not crossed an internationally
recognized State border.
Many laws and policies on internal displacement do not include
a definition of an IDP.25 Of those that do include a definition, sever-
al quote directly or closely reflect the Guiding Principles.26 In some
cases, however, the definition of an IDP has been drafted to incorpo-
rate refugees and concepts borrowed from the Refugee Convention of
1951.27 In the case of the Russian law relating to forced migrants, for
example, the definition is not limited to those displaced within the
9
“IDPs are citizens or residents
of their own country. They
retain all the rights and
freedoms under international
and domestic law that all other
citizens enjoy. The state of being
displaced is a factual situation;
it is not a legal status.”
country but includes those who have been forced to leave the coun-
try for reasons including “persecution for reasons of race, nationality
… or membership of some particular social group.”28 This reference
to “persecution” on certain grounds is a direct reference to the defini-
tion of a “refugee” found in the Refugee Convention.29
Laws that seek to deal jointly with refugees and IDPs run the
risk of failing to adequately address the specific needs of both.
Particularly in relation to the Russian law on forced migrants, the lack
of a logical and conceptual boundary between refugees and IDPs has
been highlighted as an issue of concern.30 The definition of “forced
migrant” includes Russian citizens and non-citizens, persons residing
outside of the Russian Federation and within it, and persons who
crossed international borders and persons who did not. Specifically
for the IDPs, this situation is said to have resulted in them becoming
“lost among the other categories of forced migrants.”31
Laws that apply refugee concepts to IDPs are also problematic.
The Bosnia and Herzegovina law contains separate definitions for
“displaced persons” (those who have remained within the country)
and “returnees” (those returning from outside the country), but it
applies the refugee concept of exclusion to IDPs.32 This concept
excludes certain individuals from being legally recognized as
refugees, such as individuals who have committed certain crimes.
This makes sense in the case of refugees, who seek a legal status
from a host state where they are not citizens. Exclusion, however,
is not a concept that can be applied to the internally displaced.
IDPs are citizens (or residents) of their own country. They retain
all the rights and freedoms under international and domestic law
that all other persons in their country enjoy. Thus, the commission
of a crime cannot affect whether a person is internally displaced.
The state of being displaced is a factual situation; it is not a legal
status. According to the Guiding Principles, the provision of a def-
inition of internal displacement is not meant to create or limit new
rights or entitlements, but rather to acknowledge a factual situation.
The definition contained in the Guiding Principles most
accurately describes IDPs and should be used as the basis for any
definition of an IDP contained in national laws and policies. The
definition is broad and can be adapted as appropriate, for example
in the case where the law or policy seeks to address only one cause
of displacement. The integrity of the definition should be retained
and refugee concepts such as “exclusion” should not be introduced.
Implementation and Monitoring of Laws and Policies
As noted above, the process of developing a law or policy on
internal displacement is an opportunity to bring together all relevant
stakeholders to consider the role that each should play in protecting the
rights of IDPs. Also essential is the identification of specific institutions
and organizations to oversee the implementation of policies and laws,
ensure effective coordination, and guard against duplication or gaps in
activities. Indeed, the National Responsibility Framework developed by
the Brookings-Bern Project on Internal Displacement identifies the
appointment of a national institutional focal point for IDPs as essen-
tial to carrying out the provisions of laws and policies.33 A failure to
identify the actors responsible for particular activities leaves IDPs and
their advocates without any effective recourse for complaints.
Azerbaijan’s law on forcibly displaced persons34 does not pro-
vide details on the institutional arrangements to implement the
Courtesy of Eskinder Debebe, UN/DPI
law, nor does it indicate who is to fund the measures identified in
the law and who is to monitor its implementation. This law, how-
ever, is not representative of most laws and policies, the majority of
which identify, with varying degrees of specificity, the institutional
responsibilities of the government, and establish planning, moni-
toring, and coordinating mechanisms.
For example, the Georgian Law on Forcibly Displaced Persons
contains a general statement about the responsibility of the
Ministry of Refugees and Accommodation to coordinate the
actions of other ministries and governmental offices in the realiza-
tion of the rights of “persecuted persons.”35 The more comprehen-
sive Ugandan policy contains an entire chapter dedicated to
“Institutional Arrangements, Roles and Responsibilities.” It iden-
tifies the lead agency for the protection and assistance of IDPs and
incorporates all key ministries in various advisory capacities.
The Ugandan policy also provides a useful example of how to
promote effective monitoring. The Ugandan Human Rights
Commission is identified as the institution with primary responsibil-
ity for monitoring the protection of the human rights of IDPs.36 The
Commission is a national human rights institution (NHRI). These
are quasi-independent organizations particularly well placed to mon-
itor the implementation of laws and policies on internal displace-
ment. Not all countries with NHRIs use them in this way, however.
In Nepal for example, governmental monitoring systems are preferred
over the more independent NHRI. The Nepalese Relief Program
for Internally Displaced People Due to Conflict for FY 2004/05 gives
monitoring and evaluation responsibilities to government commit-
tees identified at the central, regional, and district levels.37
Consultation and Participation of IDPs
The importance of including consultation and participation
mechanisms for IDPs in any law or policy affecting their interests
is derived from the Guiding Principles. The principles emphasize
the importance of IDP participation in programs and decision-
making processes that involve their interests. Guiding Principle
18(3), for example, requires that “special efforts be made to ensure
the full participation of women in the planning and distribution
of … basic supplies.” Principle 29(2) stipulates that “special efforts
should be made to ensure the full participation of internally dis-
placed persons in the planning and management of their return or
resettlement and reintegration.”
10
The general importance of consultation and participation in
contributing to the effectiveness of humanitarian assistance is
highlighted in the report of the Representative of the Secretary-
General entitled “Protection of Internally Displaced Persons in
Situations of Natural Disaster.” 38 The report notes the tendency of
governments to centralize decision-making in the interest of effi-
cient management, with the effect that IDPs are excluded from
planning the location and layout of camps and settlements, the
type of food and other items selected, the manner in which aid is
distributed, and other matters central to their daily lives. This can
heighten IDPs’ sense of helplessness, undermine the effectiveness
of humanitarian assistance, and even put at risk IDPs’ physical
security, especially that of women.39
IDPs in Maslakh Camp, Afghanistan.
A handful of existing laws and policies contain consultation and
participation provisions. The Angolan Norms on Resettlement of the
Internally Displaced Populations, for example, requires that the
provincial government ensure the active participation of displaced
populations in the resettlement or return process.40 The norms, how-
ever, do not elaborate on how such participation is to be facilitated
and whether displaced populations will be able to participate in all,
or only some, aspects of resettlement and return. The Ugandan pol-
icy is more detailed in its provisions inviting the participation of
IDPs. Section 2.3.1(iii) requires the Human Rights Promotion and
Protection Sub Committee to work in collaboration with IDP repre-
sentatives to find ways to promote respect for and protect the human
rights of IDPs. Section 2.4(v) states that representatives of displaced
women shall be consulted and may be invited to participate in meet-
ings of the District Disaster Management Committees.
Both the Angolan and Ugandan examples are rare among
existing laws and policies, most of which do not contain any con-
sultation or participation provisions. This omission from existing
instruments threatens to undermine the effectiveness of these
instruments and ultimately the likelihood of achieving durable
solutions for the internally displaced.
In addition to the issues identified above, many other issues are
often absent from existing laws and policies. Among these are meas-
ures for addressing the long-term sustainability of return and resettle-
ment programs; provisions for supporting host communities and
families, which often bear a large burden in assisting IDPs; and means
for combating discrimination against IDPs (for example, IDPs
uprooted by natural disaster often receive more assistance than those
displaced by conflict, and IDPs of particular minorities or indigenous
groups often face discrimination). Some of these issues depend not
only on political will but on donor priorities and practical considera-
tions such as easy access to the IDPs. Nonetheless, if national author-
ities are sincere about developing a comprehensive legal or policy
framework on internal displacement, they must address these ques-
tions. The process of developing the framework can then be used to
garner support, both from national authorities and organizations, as
well as from international donor and aid agencies.
Tools to Assist Legislators
In order to meet the challenge posed by creating a compre-
hensive legal framework for IDPs, the Representative of the
Secretary-General proposed in 2005 “to convene a series of consul-
tative meetings … with experts, lawmakers, and IDP advocates,
with the goal of clarifying in detail how domestic law should con-
tribute to the protection of IDPs.”41 The outcome of these consul-
tations will be the publication of a manual that will assist legisla-
tors and policymakers in drafting laws and policies. It will be com-
pleted in 2007.
The manual will address a broad range of issues from movement-
related rights to documentation and education to humanitarian access.
Substantive, procedural, and institutional elements of state regulation
will be discussed as well as the international role relevant to each issue.
Another tool that will assist legislators and policymakers is the
database of existing laws and policies now available on the website
of the Brookings-Bern Project on Internal Displacement.42 This
database will be expanded, in collaboration with Georgetown
University, to include all documents and statements of international,
regional, and national authorities that refer to the Guiding
Principles and the individual rights upon which they are based.
Conclusion
Internal displacement affects millions of people, both directly
and indirectly. Until recently the issue received limited attention
by the international community and equally limited attention by
states. The creation of the position of Representative of the
Secretary-General on Internally Displaced Persons led to increased
international awareness of the phenomenon of internal displace-
ment and a growing consensus that national authorities have the
responsibility to respect and protect the rights of IDPs.
The presentation of the Guiding Principles on Internal
Displacement to the Commission on Human Rights in 1998 pro-
vided the catalyst for states to develop laws and policies on internal
displacement. The legal and policy frameworks that currently exist
reflect a diversity of approaches, ranging from a wholesale adoption
of the Guiding Principles without details about implementation to
a detailed adaptation of the Guiding Principles to address specific
national circumstances. Some approaches are more effective than
others in protecting IDPs.
The laws and policies also reveal the challenges inherent in
translating international standards on IDPs into concrete legal or
policy provisions at the national level. Problems have arisen over
definitional issues while there have been gaps when it comes to set-
ting up procedural and institutional mechanisms for implementing
the substantive provisions of laws and policies. The participation of
IDPs also requires greater attention.
The initiative of the Representative of the Secretary-General
to develop a legislators’ manual should assist national authorities in
drafting laws and policies on internal displacement. Most impor-
tantly it will provide clear guidance on how to translate the
Guiding Principles into concrete legal and policy directives.
However, there is one ingredient that is vital in the development and
implementation of an instrument on internal displacement that
neither the manual nor the Guiding Principles can provide: the polit-
ical will required to ensure an effective legal or policy framework and
its implementation. HRB

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11
ENDNOTES: A Developing Trend
1 Internal Displacement Monitoring Centre, Internal Displacement: Global
Overview of Trends and Developments in 2005, March 2006, p. 6.
2 The Commission on Human Rights, Resolution 2004/55, provided the
framework for a new mandate, that of Representative of the Secretary-General
on the Human Rights of Internally Displaced Persons (emphasis added). Giv-
ing a specific human rights focus to the mandate, it invited the Representative
to engage in coordinated international advocacy and action for improving pro-
tection and respect for the human rights of persons who have become inter-
nally displaced. In September 2004, Walter Kälin, a Swiss jurist, was appoint-
ed Representative.
3 Francis M. Deng, Guiding Principles on Internal Displacement: Report of the
Representative of the Secretary-General, U.N. Doc. E/CN.4/1998/53, (Feb. 11,
1998).
4 United Nations, Commission on Human Rights, ¶ 7, U.N. Doc.
E/CN.4/2005/L.60, (April 14, 2005). G.A. Res. 60/168, U.N. Doc.
A/RES/60/168, (March 7, 2006).
5 Secretary-General, In Larger Freedom: Towards Development, Security and
Human Rights for All, Report of the Secretary-General, ¶ 210, U.N. Doc.
A/59/2005, (March 21, 2005).
6 G.A. Res. 60/L.1, ¶ 132, U.N. Doc. A/60/L.1, (Sept. 15, 2005).
7 Guiding Principles on Internal Displacement, U.N.
Doc E/CN.4/1998/53 at ¶ 24.
8 Brookings Institution-University of Bern Project on Internal Displacement,
“Addressing Internal Displacement: A Framework for National Responsibili-
ty,” Washington D.C. 2005, p. 16-17. Also presented as Walter Kälin, Annual
Report of the Representative for the Secretary-General on Human Rights of Inter-
nally Displaced Persons, U.N. Doc. E/CN.4/2006/71, (Jan. 12, 2006).
9 See, e.g., Report of the Special Representative of the Secretary-General on Inter-
nally Displaced Persons, ¶ 20-21, U.N. Doc. A/58/393, (Sept. 26, 2003).
10 Francis M. Deng, Report of the Representative of the Secretary-General on
Internally Displaced Persons, ¶ 26, U.N. Doc. E/CN.4/1997/43, (Feb. 4,
1997); Francis M. Deng, Specific Groups and Individuals: Mass Exoduses and
Displaced Persons: Report of the Representative of the Secretary-General on inter-
nally displaced persons, ¶ 100, U.N. Doc. E/CN.4/2002/95, (Jan. 16, 2002);
Francis M. Deng, Specific Groups and Individuals: Mass Exoduses and Displaced
Persons: Report of the Representative of the Secretary-General on Internally Dis-
placed Persons, ¶ 69, U.N. Doc. E/CN.4/2003/86, (Jan. 21, 2003); Francis M.
Deng, Specific Groups and Individuals: Mass Exoduses and Displaced Persons:
Report of the Representative of the Secretary-General on Internally Displaced
Persons, ¶ 19, U.N. Doc. E/CN.4/2004/77, (March 4, 2004).
11 See, e.g., Walter Kälin, Annual report of the representative of the Secretary-
General on human rights of internally displaced persons, Mission to Nepal, ¶
67(a), U.N. Doc. E/CN.4/2006/71/Add.2, (Jan. 7, 2006); Francis M. Deng,
Specific Groups and Individuals: Mass Exoduses and Displaced Persons: Report of
the Representative of the Secretary-General on internally displaced persons, Profiles
in Displacement: the Russian Federation, ¶ 14-16, U.N. Doc.
E/CN.4/2004/77/Add.2, (Feb. 24, 2004).
12See, e.g., Opening Statement by Professor Walter Kälin, Representative of the
United Nations Secretary-General on the Human Rights of Internally Displaced
Persons, Workshop on the Implementation of Uganda’s National Policy for
Internally Displaced Persons, Kampala, Uganda, July 3-4, 2006.
13 In Larger Freedom, U.N. Doc. A/59/2005 at ¶ 210.
14 See, e.g., International Migration Policy Program, International Migration
Policy Seminar for West Africa: Report and Conclusions, Recommendation 1, p.
4; Council of Europe, Parliamentary Assembly, Recommendation 1631, ¶ 12,
(2003); Commonwealth Secretariat, Report of the Commonwealth Intergovern-
mental Group on Refugees and Displaced Persons, ¶ 22, 29, 34 (viii), (1997), as
cited in Francis M. Deng, Report of the Representative of the Secretary-General
on Internally Displaced Persons, ¶ 21, U.N. Doc. E/CN.4/1999/79, (Jan. 25,
1999). See also reference to comments of Ministry of Justice of Azerbaijan in
Report of the Representative of the Secretary-General, U.N. Doc.
E/CN.4/1999/79/Add.1, (Jan. 25, 1999).
15 Guiding Principles on Internally Displaced Persons, Instrument of
Adoption [of Liberia] (2004) available at http://www.brookings.edu/fp/
projects/idp/-Liberia_GPadoption.pdf.
12
16 National Policy on Resettlement and Rehabilitation for Project Affected
Families of 2003, Extraordinary Part-I, § 1, No-46 (2003), Gazette of India
(2004).
17 Norms on the Resettlement of the Internally Displaced Populations,
Decree Number 1/01 [of Angola] (2001), available at
http://www.brookings.edu/fp/-projects/idp/Angola_pre-policy_doc_Eng.pdf.
18 The Law of the Azerbaijan Republic “On social protection of forcibly dis-
placed persons and persons equated to them,” No. 669-1Q (1999), available
at http://www.brookings.edu/fp/projects/idp/Azerbaijan_protectionlaw.pdf;
Law on Displaced Persons and Returnees in the Federation of Bosnia and
Herzegovina and Refugees from Bosnia and Herzegovina (2005), Bosnia and
Herzegovina Official Gazette, (no. 15/05, 2005); Law 387 [of Colombia]
(1997), Diario Oficial (No. 43,091, 1997); Relief Program for Internally Dis-
placed People Due to Conflict for FY 2004/05 [of Nepal] (2004), available at
http://www.brookings.edu/fp/projects/idp/Nepal_IDPreliefprog.pdf; National
Strategy for Resolving the Problems of Refugees and Internally Displaced Per-
sons [of the Republic of Serbia] (2002), available at http://www.brook.edu/-
fp/projects/idp/Serbia-Montenegro_IDPstrategy.pdf.
19 Law No. 5233 [of Turkey] (2004), available at http://www.brookings.edu/-
fp/projects/idp/Turkey_CompensationLaw5233.pdf.
20 Department of Defense, Emergency Supplemental Appropriations to
Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act
(“Hurricane Education Recovery Act”), Pub. L. No. 109-148, 119 Stat. 2680
(2006).
21 See, e.g., Norms on the Resettlement of the Internally Displaced Popula-
tions, Decree Number 1/01 [of Angola] (2001); Relief Program for Internally
Displaced People Due to Conflict for FY 2004/05 [of Nepal] (2004).
22 Law 387 [of Colombia] (1997).
23 National Policy for Internally Displaced Persons [of Uganda] (2004), avail-
able at http://www.brookings.edu/fp/projects/idp/Uganda_IDPpolicy.pdf.
24 See, e.g., The Guiding Principles on Internally Displaced Persons, Instru-
ment of Adoption [of Liberia] (2004); National Framework for Relief, Reha-
bilitation and Reconciliation [of Sri Lanka] (2002), available at
http://www.brookings.edu/fp/projects/idp/Sri-Lanka_NationalFrame-
work2002.pdf.
25 See, e.g., Norms on the Resettlement of the Internally Displaced Popula-
tions, Decree Number 1/01 [of Angola] (2001).
26 See, e.g., National Policy for Internally Displaced Persons [of Uganda]
(2004), Glossary of terms (x).
27 Convention Relating to the Status of Refugees, opened for signature July 28,
1951, 198 U.N.T.S. 137, (entered into force April, 22 1954) [hereinafter,
Refugee Convention].
28 Federal Law on the Introduction of Amendments and Additions to the
Law of the Russian Federation on Forced Migrants Article 1(1) (1995), Offi-
cial Gazette (1995) cited in Roberta Cohen, Walter Kälin and Erin Mooney
(eds.), The Guiding Principles on Internal Displacement and the Law of the
South Caucasus, p. 215, AMERICAN SOCIETY OF INTERNATIONAL LAW, STUDIES
IN TRANSNATIONAL LEGAL POLICY, No. 34 2003.
29 Refugee Convention, Article 1.
30 Report of the Conference on Internal Displacement in the Russian Federation,
Moscow, Russia, April 25-26, 2002, p. 21.
31 Vladimir Shkolnikov, Office for Democratic Institutions and Human
Rights, Presentation to the Organization for Security and Cooperation in Europe,
International Conference on Internal Displacement in the Russian Federation,
Moscow, Russia, April 25-26, 2002, as cited in the Report of the Conference on
Internal Displacement in the Russian Federation, p.6.
32 See, e.g., Law on Displaced Persons and Returnees in the Federation of
Bosnia and Herzegovina and Refugees from Bosnia and Herzegovina, Article 9
(2005).
endnotes continued on page 37
 Advancing the Right to Adequate Housing of Desperately Poor People:
City of Johannesburg v. Rand Properties
by Lilian Chenwi*

Tenure Act 62 (ESTA), providing protection to unlawful occupiers

I
nadequate housing, the growth and overcrowding of
informal settlements, and the occupation of private land and
abandoned buildings are prevalent in South Africa. The result
is that many of the country’s most vulnerable — women, chil-
dren, the elderly, and those living with disabilities — are evicted
and left homeless.
In the inner city of Johannesburg, thousands of desperately
poor people are forced to illegally occupy unsafe buildings
(so-called “bad buildings”) because they cannot afford accommo-
dation on the private residential housing market nor access the
urban social housing units. A 2004 study by the Centre for
Applied Legal Studies (CALS) and the Centre on Housing Rights
and Evictions (COHRE) revealed that the occupiers of “bad build-
ings” are desperately poor people — most of them have either no
income whatsoever or earn less than R1000 per month (less than
US $150).1
In response to health and safety concerns, the City of
Johannesburg has increasingly evicted slum residents, despite evi-
dence that evicting the desperately poor from “bad buildings,”
without alternative accommodation, does nothing to reduce the
number of slum dwellings. Rather, the evictees usually move into
other slums or unoccupied “bad buildings” in the area.2
CALS and COHRE, together with inner city residents, have
repeatedly campaigned for the municipality to stop the evictions
and focus on alternative methods of regenerating buildings in the
inner city. Recently occupiers of “bad buildings” have challenged
several aspects of the City of Johannesburg’s practice of forced evic-
tions. The most recent case, City of Johannesburg v. Rand Properties
(Pty) Ltd and Others,3 affords additional protection to the desper-
ately poor people living in “bad buildings” in the inner city of
Johannesburg faced with eviction. In particular, the High Court of
South Africa’s interpretation that the right of access to adequate
housing implies the right to live in a location within reasonable
distance of employment opportunities intimately links the right to
adequate housing with other critical economic, cultural, and social
rights. This paper will examine the Rand Properties decision in the
context of existing constitutional jurisprudence and international
standards, highlighting this and other contributions made to the
advancement of the right to adequate housing of South Africa’s
desperately poor.
The Legal Framework:
Evictions and the Right to Adequate Housing
Section 26 of the 1996 South African Constitution
(Constitution) recognizes the right of access to adequate housing.4
Specifically, section 26(1) reaffirms the right of access to adequate
housing, while section 26(2) requires the state to take reasonable
legislative or other measures to achieve the progressive realization
of this right. Section 26(3) prohibits arbitrary evictions.
In 1997, the legislature passed the Extension of Security of
* Lilian Chenwi is a researcher in the Socio-Economic Rights Project of the
Community Law Centre, University of the Western Cape, South Africa.
who previously had some form of consent or right to occupy
the land in question. Under ESTA, a landowner must get a court
order before evicting unlawful occupiers.5 Occupiers who did not
previously have the right to occupy the land in question were not
protected under ESTA.
The Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act, No. 19 (PIE),6 passed in 1998, enforces
section 26(3) of the Constitution by prohibiting arbitrary evictions.
PIE affords greater protection to desperately poor unlawful occu-
piers by suggesting that mediation take place prior to the eviction
of individuals lacking security of tenure. Furthermore, section 4 of
“The facts of the present
matter reflect the plight of
thousands of people living in
the inner city, in deplorable
and inhuman conditions. Our
Constitution obliges the State
to act positively to ameliorate
these conditions.”
the PIE requires the court to consider all relevant circumstances
before granting an eviction order. Such circumstances include: the
rights and needs of the elderly, children, disabled persons, and
households headed by women; the duration of the occupation of
the land; and whether land can reasonably be made available by the
municipality or state for the relocation of the unlawful occupier.
While ESTA and PIE afford some protection to desperately
poor tenants, the National Building Regulations and Building
Standards Act, No. 103 of 1977 (NBRA) justifies evictions on the
basis of the occupier’s health and safety. The NBRA is an
apartheid-era law granting a municipality the statutory power and
duty to prevent dangerous living conditions within its jurisdiction.
Under section 12(4)(b),7 a municipality can order the occupiers to
vacate any building that it considers unsafe or unhealthy. This sec-
tion is regularly used in Johannesburg to clear inner city slums or
other “bad buildings.” Unlike the PIE, the NBRA provides no list
of relevant circumstances to be considered by the court before the
granting of an eviction order.

13
 In order to be valid, interpretation of section 12(4)(b) of the
NBRA must be consistent with section 26(3) of the Constitution,
the supreme law of South Africa.8 Section 26(3) encompasses both
procedural and substantive protections for people facing evictions
from their homes, such as the requirement that eviction orders may
only be issued after consideration of all relevant circumstances,
while NBRA provides for no such safeguards. In resolving issues of
constitutional law, South Africa’s Constitution requires the courts to
consider international law when interpreting constitutional rights.
In fact, the Constitutional Court of South Africa has stated that
public international law would include “non-binding” as well as
binding law, both of which provide a framework for interpretation.9
Courtesy of Georgia State University
A shantytown in Soweto, South Africa
Accordingly, the courts have referred to international law
when construing the right to adequate housing in eviction cases,
such as article 11 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR), which recognizes the right
to an adequate standard of living with regard to food, clothing,
housing, and the continuous improvement of living conditions.10
South Africa has yet to ratify the ICESCR, thus the weight of its
authority varies from case to case. Even so South Africa’s courts do
cite to aspects of the General Comments issued by the Committee
on Economic, Social and Cultural Rights (CESCR).11
The right to adequate housing is also implicit in articles 14
(right to property), 16 (right to the best attainable state of physi-
cal and mental health), and 18(1) (protection of the family) of the
African Charter on Human and People’s Rights (ACHPR), which
South Africa has ratified.12 The ACHPR therefore provides a valid
and useful tool for interpreting and applying the right to adequate
housing that is protected in the Constitution.
The Rand Properties Case
The Facts
Relying upon section 12(4)(b) of the NBRA, the City of
Johannesburg sought to evict over 300 people from six properties in
the inner city. The municipality contended that the evictions would
promote public health and safety and reverse inner city decay.13
The occupiers14 opposed the eviction for several reasons.
First, they claimed they were entitled to the protections of PIE,
which require the Court to consider the availability of alternative
accommodation in determining whether it would be just and equi-
table to issue the evictions. Second, they asserted that the NBRA
conflicted with section 26(3) of the Constitution by allowing for
summary evictions without including any protective provisions.
14
Third, the claimants argued that the municipality had not afforded
them a fair hearing.15
The occupiers urged the High Court to declare unconstitu-
tional the practice of securing evictions through the provisions of
section 12 of the NBRA. They also sought a declaration that the
municipality’s housing program fails to comply with its constitu-
tional and statutory obligations, as it does not provide for those in
desperate need. Lastly, the occupiers sought an interdict prevent-
ing the municipality from evicting them until suitable alternative
accommodations were provided, bringing the municipality into
compliance with constitutional obligations.16
The CALS and COHRE study of the municipality’s eviction
program and the socio-economic circumstances of the people liv-
ing in “bad buildings” was entered into evidence in this case.17
The Decision
Justice Mahomed Jajbhay presided over the case brought
before the Johannesburg High Court and handed down judgment
on March 3, 2006. The justice focused on the right of access to
adequate housing under section 26 of the Constitution, and
deemed it unnecessary to address the other arguments advanced by
the occupiers.18
Jajbhay dismissed the municipality’s eviction application and
held that the municipality’s housing program failed to comply with
its constitutional and statutory obligations of providing suitable
relief for those in desperate need of accommodation. Jajbhay further
directed the municipality to devise and implement a comprehensive
and coordinated program to progressively realize the right to ade-
quate housing for the desperately poor of Johannesburg. Finally, he
issued an interdict against the municipality from seeking to evict
the occupiers pending the implementation of the comprehensive
housing program, or until such time as suitable adequate accom-
modation could be provided.
The justice drew from international sources, such as the
United Nation’s Housing Rights Programme (UNHRP) and inter-
national human rights law, in drafting his opinion. Accordingly,
and at minimum, a state recognizing the right to adequate housing
is required to immediately address the housing needs of its popu-
lation, particularly those deprived of basic shelter. Failure to do so
is considered prima facie evidence of a violation of the right.19
In determining whether the municipality was meeting the
housing needs of South Africa’s population, Jajbhay relied on PIE
and previous constitutional jurisprudence, which always required
the consideration of multiple factors prior to issuing an eviction
order. Factors to be considered include the degree of emergency
and desperation of the people, the length of occupation, any form
of constructive consultation with the occupiers, and the availability
of adequate alternative accommodation.20 In sum, a municipality’s
declaration that the occupation of a particular building is
unhealthy or unsafe does not automatically require an eviction
order.21 Instead, Justice Jajbhay noted that the municipality had
failed to consult with the occupiers and had not made any provi-
sion for suitable alternative accommodation. Thus, the eviction
under these circumstances was unlawful.
Jajbhay’s reasoning echoes the standards elaborated in
General Comment No. 7 of the CESCR on the right to adequate
housing and the procedural safeguards to be followed before issuing
eviction orders.22 The procedural protections enumerated in
General Comment No. 7 include the need for genuine consultation
with those affected and adequate and reasonable notice for all
affected persons prior to the scheduled date of eviction. Also evic-
tions should not result in individuals being rendered homeless or
vulnerable to the violation of other human rights and should not
take place in particularly bad weather or at night unless the affect-
ed persons consent otherwise. The state should provide wherever
possible legal aid to persons who are in need of it to seek redress
from the courts.23
Jajbhay’s reasoning also clearly echoes the decisions of the
South African Constitutional Court. The Constitutional Court
strives to emphasize the need for mediation and the provision of
alternative accommodation prior to granting an eviction against
vulnerable groups. In Port Elizabeth Municipality v. Various
Occupiers, the Constitutional Court said that evictions should only
the form of municipal grants. Such grants would enable the munic-
ipality to respond to emergencies by providing secure access to land,
boosting infrastructure and basic services, and improving access to
shelter through voluntary relocation and resettlement.
Municipalities are encouraged to assess in advance the emergency
housing needs in their areas and take concrete steps to address them.
The City of Johannesburg failed to take these prescriptive steps.
Accordingly, the justice found that the municipality breached its
constitutional and statutory obligations to the occupiers.30 The
municipality was ordered to devise and implement a comprehensive
and coordinated program to progressively realize the right to ade-
quate housing for the desperately poor of Johannesburg.

“The absence of adequate housing [for the poor], and any

subsequent eviction, will drive them in a vicious circle, to the
deprivation of their employment, their livelihood, and therefore
their right to dignity, perhaps even their right to life.”
be granted against settled occupiers if reasonable alternative accom- Finally, in his legal opinion, Jajbhay situated the right to ade-
modation will be provided, even if only as an interim measure quate housing alongside the right to work and to livelihood, even
pending ultimate enrollment in a formal housing program.24 If the though the right to livelihood is not expressly guaranteed in the
municipality must evict poor tenants or occupiers, court orders to South African Constitution.31 He stated that the absence of ade-
evict must follow a mediation attempt to resolve the issue, which quate housing for the occupiers and any subsequent eviction will
will ensure the just and equitable application of eviction orders.25
Furthermore, Jajbhay applied the standard of “reasonableness
review,” noting that the municipality’s constitutional duty to pro-
mote a safe and healthy public environment must be balanced
against the state’s constitutional duty to ensure access to adequate
housing for all people.26 The “reasonableness” standard derives
from the state’s duty to take legislative and other measures to pro-
gressively realize socio-economic rights. In determining whether a
state or municipality’s actions are reasonable, the court will not
insist that the most desirable or favorable measure be adopted.
Rather, the court will assess whether state actions to progressively
Courtesy of Wade Hatler

realize access to adequate housing have adequately considered the

specific needs of the poor and destitute alongside the wider public
interest.27 Any measure instituted by the state can only be consid-
ered reasonable if it takes into account the needs of those in des-
perate circumstances or crisis situations, and whose ability to enjoy
all rights are therefore most in peril.28 Generally, the reasonable-
ness of the measures is evaluated according to certain criteria Residents of Soweto, South Africa
including proper conception and implementation; inclusiveness;
comprehensiveness; short-, medium- and long-term provisions for
those in desperate need; transparency; balance and flexibility; and lead to the deprivation of their employment, livelihood, and
financial and human resources availability. hence, their right to dignity, perhaps even their right to life.32 The
The City of Johannesburg’s municipal housing program did not right of access to adequate housing therefore implies a right to a
provide for the needs of the inner city’s desperately poor, despite the specific location within a reasonable distance of livelihood oppor-
2004 adoption of an Emergency Housing Programme following the tunities. This is the first time in South Africa’s constitutional
Government of the Republic of South Africa and Others v. Grootboom jurisprudence that the right to adequate housing is explicitly situ-
and Others judgment.29 The emergency program aimed to assist ated alongside other rights including the right to livelihood. This
groups of people faced with urgent housing problems, such as evic- finding echoes the concept of adequacy in General Comment No.
tions or threatened evictions, by providing temporary assistance in 4 of the CESCR.33

15
The Aftermath
Justice Jajbhay’s decision was not welcomed by the munici-
pality, as it clearly indicated that the municipality had to provide
alternative accommodation to poor people residing in “bad build-
ings” prior to evicting them. Immediately following the judgment,
the municipality applied for leave to appeal to the Supreme Court
of Appeal, which was granted on April 20, 2006. The municipali-
ty appealed against the judgment on 25 separate grounds with the
primary argument that according to the NBRA, the municipality
has the authority and power to issue the evictions in accordance
with public health and safety requirements.
As noted, the High Court did not rule on the request for a
structural interdict nor the constitutionality of section 12(4)(b) of
the NBRA, which allows for summary evictions. Hence, the occu-
piers applied for leave to cross-appeal on the basis of the above two
issues. This leave was also granted. The case will be heard in the
Supreme Court of Appeal next year.
The Community Law Centre (CLC), a research and educa-
tion organization committed to protecting and promoting human
rights, together with COHRE, have been granted leave to inter-
vene as amici curiae in the case. CLC and COHRE’s submission
will challenge the constitutionality of section 12(4)(b) of the
NBRA and claim it must be interpreted consistent with 26(3) of
the Constitution. The submission will also deal with the question
ENDNOTES: Advancing the Right
1 COHRE, Any Room for the Poor? Forced Evictions in Johannesburg, South Africa,
17 February 2005, available at http://www.cohre.org/view_page.php?page_id=120
(accessed Oct 1, 2006). The study captures the extent and nature of Johannes-
burg inner city evictions and the lives of people living in “bad buildings.”
2 Id. at 64-65.
3 City of Johannesburg v. Rand Properties (Pty) Ltd and Others [hereinafter Rand
Properties], 2006 (6) BLCR 728 (W), available at http://www.constitutional-
court.org.za/Archimages/5894.PDF (accessed Oct 1, 2006).
4 The Constitution of the Republic of South Africa Act 103 of 1996. Other rele-
vant provisions of the Constitution include section 28(1)(c), which guarantees
every child the right to basic shelter, and section 35(2)(e) that requires adequate
accommodation to be provided to detained persons, including sentenced prison-
ers at state expense, available at http://www.constitutionalcourt.org.za/site/the-
constitution/thetext.htm (accessed Oct 1, 2006).
5 Extension of Security of Tenure Act 62 of 1997 s.9, available at
http://www.parliament.gov.za/pls/portal/web_app.utl_output_doc?p_table=act
s&p_doc_col=act_doc&p_mime_col=mime_type&p_id=51088
(accessed Oct 1, 2006).
6 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998, available at http://www.parliament.gov.za/pls/portal/web_app.utl_out-
put_doc?p_table=acts&p_doc_col=act_doc&p_mime_col=mime_type&p_id=59
0880 (accessed Oct 1, 2006).
7 Section 12(4)(b), NBRA: “Demolition or alteration of certain buildings. (4) If
the local authority in question deems it necessary for the safety of any person, it
may by notice in writing, served by post or delivered – (b) order any person
occupying or working or being for any other purpose in any building, to vacate
such building immediately or within a period specified in such notice.”
8 While Justice Jajbhay did not determine the constitutionality of section
12(4)(b), he did clarify that the eviction notices sent to the occupiers pursuant to
section 12(1) would be subject to the due process requirements of the Constitu-
tion. See also section 2 of the Constitution.
9 Sections 39(1) and 233 of the Constitution. See also State v Makwanyane
1995 (6) BCLR 665 (CC) para 35, available at http://www.constitutional-
court.org.za/uhtbin/hyperion-image/J-CCT3-94.
10 International Convention on Economic, Social and Cultural Rights [here-
16
of the appropriate remedy, particularly whether a structural inter-
dict should be issued and the applicability and breadth of the PIE.
Conclusion
The Court’s Rand Properties decision is significant as it is not
only consistent with South African constitutional jurisprudence
and international standards on the right to adequate housing, but
also affords additional protection to the desperately poor living in
the inner city slums of Johannesburg. The conclusion that the state
has an obligation to provide access to adequate housing to people
unable to support themselves and their dependents34 is new and
significant since Jajbhay delineates a group of people that are enti-
tled access to adequate housing.
It is clear from the judgment that South African courts
increasingly view the provision of alternative accommodation as a
substantial factor in determining whether the eviction of the des-
perately poor is justifiable or if the eviction is even a valid solution
to the problem of slum dwelling. Hence, there is need for provin-
cial governments to assess the emergency housing needs in their
areas, especially as they regard desperately poor and vulnerable
people, and take steps to address them. Civil society organizations
and other institutions should advocate for and monitor the execu-
tion of such an assessment. HRB
inafter ICESCR], art. 11, opened for signature Dec. 16, 1966, available at
http://www.ohchr.org/english/law/cescr.htm (accessed Oct. 1, 2006).
11 See Jaftha v. Schoeman & Others, 2005 (1) BCLR 78 (CC). The Constitu-
tional Court acknowledges that since the ICESCR has dealt with the issues of
adequate housing, it must seek guidance from this international instrument,
pursuant to section 39(1)(b) of the South African Constitution.
12 African Charter on Human and Peoples’ Rights [hereinafter ACHPR], Art.
14,16,18, ratified by South Africa Sept. 7, 1996, available at
http://www.achpr.org/english/_info/charter_en.html (accessed Oct. 8, 2006).
13 Rand Properties, at para 5.
14 The occupiers of the inner city properties were defended by CALS, an inde-
pendent, non-governmental organization in South Africa committed to promot-
ing democracy, justice, equality, and peace through the realization of human
rights, the University of the Witwatersrand Law Clinic, and Webber Wentzel
Bowens Attorneys.
15 Rand Properties, at para 11.
16 Id. at para 12.
17 Id. at para 48.
18 Id. at para 25.
19 Id. at para 1.
20 Id. at paras 29, 38, 47, 57, 62 & 67.
21 Id. at para 29.
22 See General Comment No 7 (right to adequate housing: forced evictions)
20/05/97, UN doc. E/1998/22, annex IV.
23 Id. at paras 15 & 16.
24 See Port Elizabeth Municipality v. Various Occupiers [hereinafter PE Municipali-
ty], 2004 (12) BCLR 1268 (CC), at para 28. This case concerned an application
by the state for an eviction order against a number of people (including 23 chil-
dren) who had illegally occupied private undeveloped land within the Port Eliza-
beth Municipality jurisdiction. The Constitutional Court denied the eviction
order on the basis of, among other things, the length of occupation of the land,
the fact that the land will not be put into some other productive use, and the
lack of suitable alternative land.
endnotes continued on page 37
 Persecution of Homosexuals:
The Egyptian Government’s Trojan Horse against Religious Groups
by Hassan El Menyawi*
T
his article explores how the Egyptian government has
used the persecution of homosexuals to combat the ris-
ing popularity of religious fundamentalist groups such
as the Muslim Brotherhood (Ikhwan al-Musleemeen). In
Egypt, the government has used emergency courts to detain and
torture gay men. This policy has received wide support from the
Egyptian public and has allowed the Egyptian government to shore
up its Islamic credentials. The position of the Muslim Brotherhood,
for example, is that homosexuality is a violation of Islamic law; as
a result, the Brotherhood has supported the Egyptian government’s
attacks on gay men. Ironically, the Muslim Brotherhood’s outward
support of the Egyptian government’s attacks on gay men has legit-
imized the very courts that have been used to persecute religious
fundamentalists. In this way the fate of religious fundamentalists
and gays are inextricably linked. While it seems improbable that
the Muslim Brotherhood would strategically form an alliance with
gay men, the group should at least be cognizant that the govern-
ment is manipulating the Brotherhood’s own homophobia to legit-
imize a court system that also persecutes fundamentalists.1
On February 26, 2005, the Egyptian government pledged that
it would begin a process of democratization. In 2005, it allowed
multi-party elections at the presidential and parliamentary levels. But
while the government claims to have begun a process of democrati-
zation, it has also been fearful of the rising popularity of the Muslim
Brotherhood, the current regime’s most likely competitor for control
of parliament. Although the intense persecution of gays in Egypt
began in the late 1990s, it has intensified with the beginning of the
democratization process — fueled by the government’s need to assure
that the Brotherhood does not gain too much power and support.
To show how the persecution of gays is deployed as a means
to persecute religious fundamentalists, this article first describes
how religion, and the Muslim Brotherhood more specifically, have
become increasingly popular in Egypt. Then, the article provides a
brief overview of the court system in Egypt and the elements of the
system that have been deployed against gay men and religious fun-
damentalists. The article then turns to how gay men have been
attacked by the emergency security state courts and how such
attacks have been effective in allowing the Egyptian government to
continue its attacks on religious fundamentalists. The article ends
with some concluding thoughts about how gay men and religious
fundamentalists might strategize toward the institutionalization of
democratic reforms without necessarily uniting.
Rise in Popularity of Religion and the
Muslim Brotherhood
IN THE RECENT 2005 ELECTIONS, the Muslim Brotherhood — offi-
cially a banned religious fundamentalist political party — won an
unprecedented 88 out of 454 seats (20 percent) in Egypt’s nation-
* Hassan El Menyawi is an Assistant Professor of International Law and Human
Rights at the United Nations University for Peace, and a former Visiting Scholar at
Harvard Law School. The author extends his thanks to his students at the United
Nations University for Peace, and to the participants and colleagues in attendence at
his lectures at University of Melbourne Law School, Yale Law School and University
of London Birkbeck School of Law. He would also like to acknowledge insightful
conversations with Ben Francisco Maulbeck and Juan Amaya Castro.
17
al legislative body, the People’s Assembly. Even prior to the 2005
elections, the Muslim Brotherhood won a then all-time-high of 17
seats, pointing to an ascendant trend in favor of religious funda-
mentalist parties in Egypt. This has entrenched the public’s percep-
tion of the Muslim Brotherhood as both legitimate and strong.
And while Egypt’s President Hosni Mubarak’s political party has
held the majority of seats in the People’s Assembly since his rule
over Egypt began in 1981, he has never experienced such signifi-
cant political opposition.
© Scott Long, Courtesy of Human Rights Watch
Proceedings from the Queen Boat Trial
One significant factor that accounts for the increased popu-
larity of the Muslim Brotherhood is Egypt’s economic situation.
There are epidemic levels of unemployment, especially among
youth. Many young Egyptians are concerned that they will not
find a job or that they will lose the jobs they already have. This has
resulted in a sense of despair and generalized malaise among young
people who feel insecure about their future.
In the meantime, the Muslim Brotherhood has successfully
proven itself to be a group genuinely concerned about social issues.
In an attempt to address the social service gap resulting from eco-
nomic contraction, the Muslim Brotherhood has sought to amelio-
rate the social needs of the Egyptian public by providing social
services previously made available by the Egyptian state. For exam-
ple, the Muslim Brotherhood has created organizations in neigh-
borhoods across the country that help citizens obtain food, jobs,
and healthcare. Such initiatives have augmented the popularity of
the Muslim Brotherhood among the Egyptian public, as evidenced
by its recent electoral success.
The Muslim Brotherhood’s popularity is not exclusively due
to its ability to address economic and social needs; it is also attrib-
utable to Egypt’s current Islamic resurgence. This resurgence is per-
vasive and manifests itself in a variety of ways, including new
mosques, more Islamic television programs, religious instruction in
schools, and a general increase in the practice of Islamic rituals.
More women wear the burqa (traditional headscarf ), and prayer is
practiced more frequently — all of which indicate a new overt reli-
giosity in Egypt, a phenomenon that has been steadily growing
over the past decade. Islamic approaches to life and culture are
increasingly perceived as legitimate, making it possible for Islamic
scholars to call for the establishment of an Islamic state.
 The increasing adherence to religion by the Egyptian public,
as well as the surge in religious discourse and practice, has made
the Egyptian public more open to Islamic groups such as the
Muslim Brotherhood. These groups also include al-Gihad (Holy
Struggle, known abroad as Egyptian Islamic Jihad) and al-Gama’a
al-Islamiyya (Islamic Group). But unlike these groups, which open-
ly advocate violence, the Muslim Brotherhood enjoys popular sup-
port and sympathy because it seems willing to engage in peaceful
political discourse. The attraction of the Muslim Brotherhood to
many Egyptians is that it is seen as a non-violent fundamentalist
group.
The Brotherhood is increasingly seen as the alternative in the
political sphere. It has gained political legitimacy by discrediting
the Mubarak government for its obvious flaws in handling the
economy and by identifying these flaws as the product of the gov-
ernment’s secular, non-religious outlook. As many members of the
“The initial media reports indicated that those arrested were
part of a ‘Satanic cult’ and were charged with ‘exploiting religion
to promote extreme ideas.’ It soon became clear, however, that
the arrests were because the men were thought to be gay.”
Muslim Brotherhood say, “All our problems would be solved with
Islam and shari’a.” A recent series of corruption scandals involving
the Mubarak regime has further strengthened the position of the
Muslim Brotherhood, allowing it to associate the regime’s flaws
with the need for an alternative government based on the strict
interpretations of the Islamic principles of the shari’a.
The Mubarak government considers the Muslim Brotherhood
to be as virulent as other more extreme groups, because their end
is the same — the creation of an Islamic government. Although
the Muslim Brotherhood currently disavows violence and general-
ly focuses on providing social services, the Mubarak government
remains wary. This stems partly from the fact that in 1981, the
Brotherhood allegedly partook in the assassination of President
Anwar Sadat. Furthermore, regardless of whether the Muslim
Brotherhood is militant, the current Mubarak government does
not wish to cede power to any party or group. Fearful of losing
power, the government has begun a campaign to seek out members
of Islamic groups, of which the Muslim Brotherhood is the largest,
and arrest and detain them. Amnesty International has reported
that members of the Muslim Brotherhood, like gay men in Egypt,
have been tortured and humiliated during the course of their
detainment.
In light of the popularity of the Muslim Brotherhood, the
government crackdown has been costly to the Mubarak regime’s
image. But instead of making the necessary economic and political
reforms to reverse the lack of support for the current regime, the
government has instead pursued a policy of distraction. To describe
how the government pursues its policy of distraction, this article
provides an overview of the Egyptian judicial system.
18
Overview of the Egyptian Judicial System
Egypt has two court systems: a civilian court system and an
emergency court system. The civilian court system is independent
from the government. The emergency court system is part of the
executive branch and responds directly to the president.
In the civilian court system there are criminal courts, civil
courts, administrative courts, and a Supreme Constitutional
Court. Criminal courts hear cases involving breaches of Egypt’s
criminal and penal laws; civil courts hear tort cases; and adminis-
trative courts hear cases contesting government actions or proce-
dures. Each of these three systems includes higher courts that hear
appeals. The Supreme Constitutional Court hears challenges to the
constitutionality of laws or verdicts in any of the courts.
Entirely separate from the civilian system of courts is an
emergency state security branch of the criminal courts. The pur-
pose of emergency state security courts is to hear cases that pertain
to terrorism and national security. In these courts, the defendant
does not have a right to appeal, save on procedural grounds. When
tried in these courts, a defendant does not receive all the constitu-
tional protections of the civilian judicial system.
The Emergency State Security Courts were established in
1981 after the assassination of then-president Anwar Sadat. Since
then, current president Hosni Mubarak has ruled Egypt in a state
of emergency, often deploying the emergency court system as a
means to try and detain his political opponents without due
process. According to a 1993 Supreme Constitutional Court deci-
sion, the president may refer any crime to an emergency state secu-
rity court. In addition, the president may alter or annul a decision
of an emergency state security court including reverse a decision to
release a defendant. The president also possesses the power to alter or
annul sentences without any possibility of appeal. As the following
sections will show, Mubarak has taken advantage of these increased
powers.
The Emergency Security Courts’ Trial,
Detainment, and Torture of Gay Men
IN MAY 2001, OFFICERS FROM THE LOCAL Cairo Vice Squad and
Egypt’s State Security Investigations unit raided the “Queen Boat”
nightclub and arrested 30 men.2 In the days preceding the Queen
Boat Raid, an additional 22 men had been arbitrarily selected from
the streets of Cairo and were later grouped with the 30 Queen Boat
men.3 Altogether, the men were referred to as the “Queen Boat
52,”4 and were tried for suspected consensual same sex sexual acts
before an Emergency State Security Court for Misdemeanors.5 The
main charges brought against the allegedly gay men were obscene
behavior and, in the terms of Egyptian law, the crime of “habitual
debauchery.”6 Other charges included “contempt for religion.”7
There were no charges explicitly related to being gay or engaging
in gay sex as Egyptian law does not explicitly criminalize homosex-
uality. Eventually, the emergency security court convicted 23 of
these 52 men.8
The state-sponsored media publicized the arrests and trials of
the accused, including their names, places of employment, and
pictures.9 At first the initial reports in the Egyptian media indicat-
ed that those arrested were part of a “Satanic cult” and were being
charged with “exploiting religion to promote extreme ideas with
the objective of creating strife and demeaning the revealed reli-
gions.”10 It soon became clear, however, that the arrests were
because the men were thought to be gay.11
The raid on the Queen Boat was not the beginning of persecu-
tion directed at allegedly gay men.12 There have been many previous
incidents of sporadic arrests, detainments, and imprisonments
(sometimes with and other times without criminal charges) of
allegedly gay men engaging in same-sex sexual activity or in
activism to promote gay rights.13 There have also been individual
arrests of men who were entrapped by the police on the Internet.
In these cases, police officers would appear online posing as poten-
tial sexual and romantic partners. The officers would then meet
with the men who were seeking sex or friendship and interrogate,
detain, and torture them.14 A month before the raid on the Queen
Boat, one Egyptian was sentenced to three years for engaging in
the act of advertising for sex on the Internet. And there have like-
ly been many similar unrecorded entrapments.15
Many allegedly gay men are now being arrested, detained,
and tortured on the grounds of “habitual debauchery”16 or “con-
tempt of religion.” Other times there are no formal charges levied,
and men are quietly abducted from their households, not to be
heard from for long periods of time. By and large, however, the
Egyptian government has continued its practice of publicly arrest-
ing and detaining gay men. After the arrests and detainments of
the Queen Boat 52, there have been many public arrests that the
state-sponsored media have reported to the entire nation.
In fact, on the evening of August 28, 2003, another spectacle
was arranged by the Egyptian government, in which 62 men
who were in a well-known gay cruising area were arrested and
detained.17 Since 2003, there have been reports of continued group
and individual arrests, detainments, and torture of allegedly gay
men.18 Many of these men are then charged and tried through
the emergency court system. Many of the men who have been acquit-
ted by the emergency security state courts are then sent to the civil-
ian courts where they are detained while the case is repeated. Many
of these trials and detainments appear in the local media and are dis-
cussed with full support of the government’s crackdown on gays.
Distracting the Public with Attacks on Gay Men:
A Strategy Crafted to Persecute Religious
Fundamentalists
One motive for the attacks on gay men is to divert public
attention from economic recession and the government’s liquidity
crisis. According to official statistics, at least 23 million of Egypt’s
65 million people live under the poverty line. Last year, poor
Egyptians watched their purchasing power plummet due to deval-
uation of the Egyptian pound. The huge media frenzy over the
Queen Boat and two other recent sensational cases has distracted
19
people while the government introduces additional sales taxes,
despite private sector complaints about a severe drop in sales.
Considering the increasing popularity of Islamic fundamental-
ist groups like the Muslim Brotherhood, the government has been
searching for new ways to target such groups in an attempt to weak-
en the political competition. The Mubarak government has had to
do this without attracting the attention of the Egyptian public. As
a result, the Egyptian government has targeted members of Islamic
groups including the Muslim Brotherhood, while concomitantly
targeting gay men. The strategy exercised by the government is to
divert the attention of Egyptians and gain legitimacy by targeting
gay men, while quietly targeting Muslim fundamentalist groups.
“Considering the increasing
popularity of Islamic
fundamentalist groups like
the Muslim Brotherhood,
the Egyptian government
has been searching for new
ways to target such groups in
an attempt to weaken the
political competition.”
The trials of the Queen Boat 52, the trials of gay men arrest-
ed in August 2003, and other ongoing cases seem to have legiti-
mated the emergency court system. The fact that the court was
deployed against gay men sent a signal that it was not doing the
bidding of secularism, but of religion. Gay men were being tried
for violations of public decency laws and the “religious code,” a
fact that further reinforced, and perhaps even consolidated, the
perception that the emergency courts were not operating on an
anti-Islamic agenda per se. This has altogether permitted the
Mubarak government to appear legitimate while using the same
courts to illegitimately target the Muslim Brotherhood.
The public legitimacy that was established as a result of the
trials of allegedly gay men was further accentuated when President
Mubarak sent some of the men who had been acquitted by the
emergency courts to the criminal civil courts. The criminal civil
courts found the men guilty and imposed harsher sentences than
those initially imposed by the emergency courts. The emergency
state courts now appear to the public as courts that apply the law
cautiously with the objective of being fair and balanced.
In addition to legitimizing the secret emergency courts, the
Egyptian government has used the persecution of gay men to shore
up its “Islamic credentials.” The punishment of homosexuality
demonstrates that the government remains dedicated to preserving
Islam and limiting secularism. As a result, the government has been
able to go after religious groups like the Muslim Brotherhood
without having to worry about being criticized as anti-Islam.
Finally, and perhaps most alarmingly, the government’s use of
the emergency courts to persecute homosexuals has so fully legit-
imized the emergency courts that Mubarak will easily be able to
continue to use them to destroy political opposition even as he
claims to be undertaking a program of democratization. Two clear
indications of the staying power of the emergency system are the
government’s recent extension of the state emergency courts for an
additional three years, without Parliamentary or public opposition,
and its initiative to write the emergency law and the emergency
courts into the Egyptian Civil Code. Under the latter change, the
government would no longer be required to periodically extend the
duration of the court; rather, the emergency courts would become
a permanent part of Egypt’s judicial system. In other words, the
persecution of homosexuals has allowed Mubarak to consolidate
his power over the judiciary, and, indeed, over all of Egyptian soci-
ety, under the guise of legitimate reform.
Concluding Thoughts:
The Inter-Dependence of Rights
Currently, the Mubarak government continues its attacks on
gay men by trying them in the emergency state security courts or in
the civil criminal courts in the case of prior acquittal. In the mean-
time, religious fundamentalists are also being targeted, revealing
how gay men and religious fundamentalists are concomitantly tar-
geted. In a sense, religious Muslims and gay men are dialectically
linked, one group legitimating the other’s downfall. The popular
support of attacks on gays legitimize arrests and trials of religious
Muslims, and the overwhelming support by religious Muslims of
the attacks on gays assures that they will continue.
The rights of gay men and religious fundamentalists are inex-
tricably linked, and as described in Article 5 of the Vienna
Declaration, these rights are “inter-dependent” and “inter-related.”
Ignoring the rights of one group can, and historically often does,
have effects on the rights of other groups. It seems that the wool has
been pulled over the eyes of Islamic groups that approve and sup-
port Egyptian authorities’ treatment of gay men. Such approval has
had a severe impact on the treatment of religious Muslims, as the
detention and torture of gay men has served as a means to distract
Egyptians from the detention and torture of religious Muslims.
While the Muslim Brotherhood is against homosexuality and
therefore has little interest in forming an alliance with gay men, the
group should be cognizant that its own antagonism toward gays is
being used to the advantage of the Mubarak regime.
Fundamentalists should speak out against torture and call for fair
trial and due process. To do this, they can use arguments from
Islamic law that are widely supported by the public to substantiate
the prohibition of torture and the need for states to respect the
right to a fair trial and due process of law.
In addition to the pursuit of equal rights, gay advocates might
also focus energy on calling for an end to the emergency court sys-
tem and a restoration of the pre-1981 independence of the judici-
ary. Without identifying themselves as “gay,” gay men and women
can speak out against the torture of all people, and require the
Egyptian government to provide for fair trial and due process. A
public focus on ending the torture of religious fundamentalists
might pave the way for gaining public support for an end to public
and private persecution of gay men and women.
20
In the meantime, nations that have significant influence over
the Egyptian government, such as the United States, should speak
out against torture and violations of the right to fair trial and due
process. Due to the dialectic relationship between gays and funda-
mentalists, countries intervening on behalf of gays might embold-
en fundamentalists. Conversely, by supporting fundamentalists,
intervening countries could inadvertently enable the persecution
of gays. As a result, countries like the U.S. should quietly, rather
than openly, pressure the Egyptian government to reform its crack-
down on gays and fundamentalists. While speaking out against
torture and demanding respect for fair trial and due process, the
U.S. might also demand that the government make reforms to
establish a liberal democracy.
The dialectic linkage between religious fundamentalists and
gays has resulted in one group legitimizing the other’s downfall,
deployed as a type of “divide and conquer” strategy by the
Egyptian government. By speaking out against torture and advo-
cating for fair trial and due process rights, both religious funda-
mentalists and gay men and women would likely benefit. In a
sense, the fate of religious fundamentalists and gays are inter-
locked, the human rights of one impacting the other. HRB
ENDNOTES: Persecution of Homosexuals
1 It is worth mentioning that Egypt has never had a legal regime that explic-
itly protects gay men. The new phenomenon is not the lack of legal protec-
tions for gay men, but rather the intensity of the persecution by the state.
2 Human Rights Watch, IN A TIME OF TORTURE: THE ASSAULT ON
JUSTICE IN EGYPT’S CRACKDOWN ON HOMOSEXUAL CONDUCT, Human
Rights Watch Index No. 1564322963 (1 March 2004), at 22. [hereinafter
Human Rights Watch Report or HRW]
3 Id. at 22-3.
4 Also occasionally referred to as the “Cairo 52.”
5 Id. at 41.
6 Id. at 13, 22, 131. Many of the men on the Queen Boat who were arrest-
ed were charged with habitual debauchery under article 9 (c) of Law 10 of
1961 that is entitled the “Law on the Combating of Prostitution.”
7 Id. at 25, 36-7, 41.
8 Id. at 43.
9 Hossam Bahgat, “Explaining Egypt’s Targeting of Gays”, Middle East
Report Online (US), 23 July 2001,
http://www.merip.org/mero/mero072301.html (22 May 2006).
10 International Gay and Lesbian Human Rights Commission, EGYPT:
EMERGENCY COURT TRIES HOMOSEXUAL SUSPECTS (2001), http://www.
iglhrc.org/-site/iglhrc/section.php?id=5&detail=151 (22 May 2006).
11 Annik Lussier, “The Trial that Never Was”, Cairo Times, 20 March
2003, http://www.gayegypt.com/cairtim20mar.html (22 May 2006);
International Gay and Lesbian Human Rights Commission, supra note 11.
12 It is unclear whether it was possible for non-Egyptian foreigners to be
guilty of “debauchery,” or whether this is a crime particular to the Egyptian
male citizen. Of the men picked up by the police from the Queen Boat
nightclub that May evening, at least nine non-Egyptian men (of Arab eth-
nicity) were inexplicably released after reaching one of Cairo’s police sta-
tions, along with some Egyptians whose social and political connections
protected them from further harassment, detention, and abuse by the
police. See Human Rights Watch, supra note 3, at 31, 33. Not all foreign-
ers, however, have subsequently escaped harassment. See Human Rights
Watch, supra note 3, at 86.
13 Id. at 10, 23.
14 Id. at 73-87.
15 Id. at 74.
16Id. at 83.
17 Human Rights News, “Egypt: Crackdown on Homosexual Men
Continues,” October 7, 2003, http://hrw.org/english/docs/2003/10/07/-
egypt6432.htm, (22 May 2006).
18 Id.
 Reinterpreting Torture: Presidential Signing Statements
and the Circumvention of U.S. and International Law
by Erin Louise Palmer*

signing statements that draw the public’s attention to positive or

T
HE U.S. GOVERNMENT HAS PUBLICLY CONDEMNED
torture through its policy commitments and congres- negative aspects of legislation.7 Constitutional signing statements,
sional legislation. Secretary of State Condoleezza Rice the focus of this article, are an expression of how the president
has stated, “The United States Government does not plans to interpret and enforce a law passed by Congress. Signing
authorize or condone torture of detainees. Torture, and conspiracy statements may therefore affect the application of legislation both
to commit torture, are crimes under U.S. law, wherever they may domestically and internationally.
occur in the world.”1 President Bush has also claimed that the
United States does not torture.2 Congress has prohibited torture
under the Torture Victim Protection Act of 1991,3 the Torture
Statute,4 and the McCain Amendment.5 Despite executive state-
ments condemning torture and firm legislative prohibitions,
President George W. Bush attached a signing statement to the
McCain Amendment that states, “The Executive Branch shall con-

© Evan Schneider, Courtesy of the United Nations

strue … the Act … in a manner consistent with the constitution-
al authority of the President to supervise the unitary Executive
Branch and as Commander in Chief and consistent with the con-
stitutional limitations on the judicial power.”6 This signing state-
ment relies on the president’s Commander-in-Chief power to
undermine domestic legislation and treaty provisions prohibiting
the torture and cruel, inhuman, and degrading treatment of
detainees in U.S. custody. Other signing statements further threat-
en compliance with domestic and international prohibitions
against torture and cruel, inhuman, and degrading treatment.
This article examines the impact of signing statements on
legal prohibitions against torture, beginning with an account of
the historical origin of signing statements. It proceeds to explain U.S. President Bush signs UN Convention
the constitutional arguments justifying the use of signing state-
ments as a legal extension of the president’s Commander-in-Chief James Monroe issued the first signing statement, which
power. After presenting the legal framework, this article focuses on argued that “the President, not Congress, bore the constitutional
three instances where the executive has attempted to limit the responsibility of appointing [military] officers.”8 Just over a dozen
scope of domestic legislation prohibiting torture: (1) the Torture signing statements were issued before 1981.9 The strategic use of
Victim Protection Act of 1991; (2) the Torture Statute, the imple- signing statements increased rapidly during the Reagan adminis-
menting legislation for the United Nations Convention Against tration. President Reagan challenged 71 legislative provisions,
Torture and Other Cruel, Inhuman or Degrading Treatment or President George H.W. Bush challenged 232, and President
Punishment; and (3) the McCain Amendment. This article con- Clinton challenged 140.10 The figures for President George W.
cludes by examining how signing statements, as an improper exer- Bush vary, with administration officials citing 11011 challenges and
cise of presidential Commander-in-Chief power, erode U.S. com- some scholars identifying up to 807.12 President George W. Bush
pliance with established international legal bans against torture. has only vetoed one piece of legislation throughout his tenure,
Signing statements that limit the scope and applicability of U.S. implying that he is using signing statements in lieu of his veto
and international law violate domestic prohibitions against torture powers.13
and threaten U.S. adherence to its international treaty obligations. President Reagan based his increased use of signing state-
Reinterpretations of the universal prohibition against torture pose ments on a 1986 Justice Department memorandum authored by
a grave danger to the continued strength of well-established Samuel Alito.14 Alito asserted, “Since the president’s approval is
human rights principles. just as important as that of the House or Senate, it seems to follow
that the president’s understanding of the bill should be just as
The History of Presidential Signing Statements important as that of Congress.”15 As the American Bar Association
Scholars have classified presidential signing statements into recognized in its critique of signing statements, “For the first time,
three distinct categories: (1) constitutional signing statements that signing statements were viewed as a strategic weapon in a cam-
note constitutional defects in legislation; (2) political signing state- paign to influence the way legislation was interpreted by the courts
ments that define ambiguous sections of a bill; and (3) rhetorical and Executive agencies as well as their more traditional use to pre-
serve Presidential prerogatives.”16
* Erin Louise Palmer is a J.D./M.A. candidate at the American University Washington The Clinton administration also supported signing state-
College of Law and School of International Service. The author would like to thank ments. A 1993 Office of Legal Counsel opinion addressing the
Christian M. De Vos and Professors Joseph Zogby, Elisa Massimino, and John
Heywood for their inspiration and assistance with this piece. legal significance of signing statements noted their utility for
21
 (1) explaining to the public, and particularly to constituencies The current administration has relied heavily on the presi-
interested in the bill, what the President believes to be the like- dent’s Commander-in-Chief power to justify signing statements.
ly effects of its adoption, (2) directing subordinate officers with- Article II, Section 2 states, “The President shall be Commander in
in the Executive Branch how to interpret or administer the Chief of the Army and Navy of the United States, and of the
enactment, and (3) informing Congress and the public that the Militia of the several States, when called into the actual Service of
Executive believes that a particular provision would be uncon- the United States.” Various signing statements call for the execu-
stitutional in certain of its applications, or that it is unconstitu-
tion of legislation “in a manner consistent with the President’s con-
tional on its face, and that the provision will not be given effect
stitutional authority as Commander in Chief.”28 In their reliance
by the Executive Branch to the extent that such enforcement
would create an unconstitutional condition.17
on the president’s Commander-in-Chief power, proponents of sign-
ing statements ignore Congress’ broad constitutional authority to
The opinion focused on the distinction between these appar-
control numerous aspects of foreign affairs and national security.29
ently valid uses of signing statements and their more questionable
Signing statements that rely on the president’s Commander-
use “to create legislative history to which the courts are expected to
in-Chief power have resulted in the virtual nullification of certain
give some weight when construing the enactment.”18
legislation. For example, one signing statement declared legislation
In 1994 Assistant Attorney General Walter Dellinger
forbidding U.S. troops in Colombia from participating in combat
authored a memorandum clarifying that the president should “sus-
against rebels as “advisory in nature.” Another signing statement
tain a particular provision as constitutional” if he believes that the
argued that military lawyers must follow legal conclusions reached
courts would uphold that provision.19 The memorandum empha-
by the Justice Department and the Pentagon when giving advice to
sized the importance of weighing the effect of compliance with a
their commanders despite legislation prohibiting Defense
provision on the constitutional rights of individuals with the exec-
Department personnel from interfering with such communication.
utive’s constitutional authority, as well as whether compliance or
Another signing statement attempted to discard requirements that
noncompliance would facilitate judicial resolution.20 Later inter-
the Pentagon ensure that military prison guards remain informed
pretations concluded that if a “law were not struck down [by the
of the requirements for humane treatment under the Geneva
courts], the President would have no choice but to enforce it.”21
Conventions. Yet another signing statement claimed that the pres-
Constitutional Justifications for ident could bypass laws requiring notice to Congress before the
the Use of Signing Statements diversion of money for secret operations, including “black sites”
that secretly imprison suspected terrorists.30 Signing statements
Presidents have relied on Article II, Section 3 of the
that claim the express will of Congress is “advisory,” limit judicial
Constitution to support their use of signing statements. Article II,
subject matter jurisdiction, or directly contradict congressional will
Section 3 states that the president “shall take Care that the Laws be
threaten the separation of powers. As former U.S. Supreme Court
faithfully executed.” Proponents of the use of signing statements
Justice Jackson recognized in his concurring opinion in Youngstown
rely on this constitutional provision to the exclusion of Article I,
Sheet & Tube Co. v. Sawyer, presidential action that contravenes the
which gives Congress the power “[t]o make all Laws which shall be
express or implied will of Congress poses a threat to the “equilibri-
necessary and proper for carrying into Execution [its] powers.”
um established by our constitutional system.”31
Further, Article III empowers the judiciary to determine all “Cases,
The Bush administration’s emphasis on the president’s
in Law and Equity, arising under th[e] Constitution, the Laws of
Commander-in-Chief power reveals a broader goal to expand execu-
the United States, and Treaties.” Marbury v. Madison solidified the
tive influence in foreign affairs and national security. As one com-
power of judicial review by acknowledging the judiciary’s constitu-
mentator has observed, “This administration … considers that it
tional duty to “say what the law is.”22 The president’s duty to exe-
does exercise the prerogative power and certainly in any area that
cute laws in accordance with the Constitution should not render
touches on foreign, military, national security, or intelligence poli-
meaningless Congress’ power to legislate and the judiciary’s power
cy.”32 Although the courts have confirmed the need for deference to
to interpret the law.
the executive in these contexts, “a state of war is not a blank check for
Proponents of signing statements argue that the president
the President when it comes to the rights of the Nation’s citizens.”33
cannot enforce unconstitutional laws.23 Walter Dellinger’s 1993
opinion for the Office of Legal Counsel stated that such practice is Signing Statements and Torture Prohibitions
similar to judicial action construing legislation in a manner that
adheres to the Constitution.24 Although the Executive should not President George H.W. Bush’s Signing Statement
enforce unconstitutional laws, presidential signing statements are for the Torture Victim Protection Act of 1991
misleading because the president has already signed the legislation,
On March 12, 1992, President George H.W. Bush attached a
often praising Congress and the drafters of the legislation.
signing statement to the Torture Victim Protection Act of 1991.34
Commentators have observed that “[t]he President, through his
This statement strongly condemned torture wherever it may
signing statement, can shade the meaning of the language voted
occur35 and called upon Congress to pass legislation implementing
upon by Congress.… Under the guise of signing statements used
the United Nations Convention Against Torture and Other Cruel,
to interpret the acts of Congress, the President can state his objec-
Inhuman or Degrading Treatment or Punishment. Despite his
tions to a bill in the form of interpretations without fear of contra-
condemnation of acts of torture wherever they may occur,
diction by Congress.”25 According to the Constitution, the presi-
President Bush argued that aliens could “misuse” the statute to lit-
dent’s role in the legislative process is limited to proposing legisla-
igate against other aliens in U.S. courts, thereby overburdening the
tion or vetoing proposed legislation.26 The presidential signing
U.S. legal system. President Bush further stated, “I must note that
statement therefore functions much like the constitutionally pro-
I am signing the bill based on my understanding that the Act does
hibited line-item veto.27
not permit suits for alleged human rights violations in the context
22
of United States military operations abroad or law enforcement
actions…. I do not believe it is the Congress’ intent that H.R.
2092 should apply to United States Armed Forces or law enforce-
ment operations.…”36 President Bush’s statement, when read in its
entirety, sought to limit remedies afforded by the Act to U.S.
nationals tortured by foreign states or their officials. Such an inter-
pretation appears paradoxical given the president’s broad and
apparently universal proscription of torture in the opening para-
graph to the signing statement.
“President Bush declared: ‘It is for the president — not Congress
or the courts — to determine when the provisions of the
McCain Amendment interfere with his war-making powers, and
when they do, he will freely ignore the law.’”
The Torture Statute and Attempts to Limit its
Scope
In 1994 Congress enacted the Torture Statute,37 the imple-
menting legislation for the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention). The Torture Statute imposes criminal
penalties on U.S. nationals or any other individual present in the
United States who, acting under color of law, “intended to inflict
severe physical or mental pain or suffering.”38 Penalties under the
Torture Statute range from 20 years of jail time to the death penal-
ty depending upon whether the victim died as a result of the pro-
hibited conduct.
A 2002 memorandum from Jay S. Bybee to Alberto R.
Gonzales, then-Counsel to President George W. Bush, interpreted
the Torture Statute to encompass the Convention’s definition of
torture, as well as U.S. reservations to the Convention.39 U.S.
reservations to the Convention include a limitation on cruel, inhu-
man, and degrading treatment to “the cruel, unusual and inhu-
mane treatment or punishment prohibited by the Fifth, Eighth,
and/or Fourteenth Amendments to the Constitution.”40 Alberto
R. Gonzales has interpreted this reservation as limiting the protec-
tions afforded to U.S. citizens under the Convention.41
The Bybee memorandum also limited the definition of tor-
ture to “[p]hysical pain … equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death.”42 The memoran-
dum emphasized the president’s Commander-in-Chief power to
conclude that “in the circumstances of the current war against al
Qaeda and its allies, prosecution under [the Torture Statute] may
be barred because enforcement of the statute would represent an
unconstitutional infringement of the President’s authority to con-
duct war.”43 In 2004 a replacement memorandum concluded,
“Because the discussion in that memorandum concerning the
President’s Commander-in-Chief power … was — and remains —
unnecessary, it has been eliminated from the analysis that follows.”44
It is questionable whether removal of the Commander-in-Chief
analysis “was prompted because the reasoning was wrong or because
it was not necessary for the purpose of the original opinion.”45
23
President George W. Bush’s Signing Statement for
the McCain Amendment Prohibiting Torture and
Cruel, Inhuman, and Degrading Treatment
In December 2005 Congress amended the Department of
Defense’s 2006 Appropriations Act and established the United
States Army Field Manual on Intelligence Interrogation as the
authoritative standard for the interrogation of individuals “in the
custody or under the effective control of the Department of
Defense or under detention in a Department of Defense facility.”46
The McCain Amendment sought to address any arguments justi-
fying geographical limitations on the explicit prohibition of cruel,
inhuman, and degrading treatment.47
President George W. Bush attached a signing statement to the
McCain Amendment limiting federal subject matter jurisdiction over
applications for writs of habeas corpus for so-called enemy combat-
ants.48 The signing statement concluded, “The executive branch shall
construe Title X in Division A of the Act, relating to detainees, in a
manner consistent with the constitutional authority of the President
to supervise the unitary executive branch and as Commander in
Chief and consistent with the constitutional limitations on judicial
power.” Under President Bush’s interpretation, “it is for the president
— not Congress or the courts — to determine when the provisions
of [the McCain Amendment] interfere with his war-making powers,
and when they do, he will freely ignore the law.”49
Placing emphasis on the president’s Commander-in-Chief
power undermines legislative action to prohibit torture and cruel,
inhuman, and degrading treatment. For example, the executive’s
broad invocation of power under Article II of the U.S.
Constitution limits the Torture Victim Protection Act of 1991, the
Torture Statute, and the McCain Amendment by placing actions
that implicate foreign affairs or national security within the exclu-
sive control of the executive. When faced with unambiguous legis-
lation, signing statements that offer alternate interpretations of the
law flout the will of Congress and threaten the separation of pow-
ers. Any attempt to re-write unambiguous congressional legislation
also threatens the judiciary’s power to “say what the law is.”50
Implications for U.S. Obligations
under International Law
In addition to undermining domestic legislation, signing
statements that weaken prohibitions against torture and cruel,
inhuman, and degrading treatment also violate well-established
international law norms. Presidents can use signing statements to
undermine compliance with U.S. treaty obligations. Certain
treaties are directly enforceable in U.S. courts. For example, the
United States is obligated to adhere to the requirements imposed
under the Geneva Conventions that prohibit torture and humili-
 they are persistent objectors during the formation of a norm of cus-
tomary international law.59 To avoid its obligations under customary
“The president’s international law, the United States could argue that it is a persistent
objector or that the war on terror is a “new” type of war around
Commander-in-Chief power which new norms of customary international law are developing.60
The U.S. government has argued that cruel, inhuman, and
is not a valid justification degrading treatment is not a norm of customary international law
because such treatment does not rise to the level of torture. The
for reinterpreting domestic Bybee memorandum, for example, concludes that “certain acts
may be cruel, inhuman, or degrading, but still not produce pain

legislation prohibiting and suffering of the requisite intensity to fall within [the Torture
Statute’s] proscription against torture.”61 In addition, U.S. courts
have limited the enforcement of cruel, inhuman, and degrading
conduct that is recognized treatment based on the belief that it does not reach the level of cus-
tomary international law: “the prohibition … poses more complex
throughout the world problems of definition than are presented by norms forbidding
torture, summary execution, disappearance or arbitrary deten-
community as illegal.” tion.”62 Signing statements further threaten the enforcement of
legislation prohibiting cruel, inhuman, and degrading treatment
by relying on military necessity and the president’s Commander-
in-Chief power. U.S. state practice, therefore, contradicts the norm
ating and degrading treatment.51 In Hamdan v. Rumsfeld, the
of customary international law prohibiting cruel, inhuman, and
Supreme Court rejected the lower court’s holding that the Geneva
degrading treatment63 and opens the door to legal arguments that
Conventions did not create a private right of action and held that
the United States is a persistent objector to the prohibition.64
Common Article 3 applies to the conflict with Al-Qaeda.52
It is worth noting that regardless of U.S. state practice, certain
Signing statements that offer alternative interpretations of these
norms are non-derogable. These jus cogens norms are binding on all
prohibitions violate the requirements of the Geneva Conventions.
states, regardless of whether they are persistent objectors during the
Signing statements also undermine compliance with domes-
formation of a norm of customary international law.65 Well-estab-
tic legislation that implements international prohibitions against
lished principles of international law expressly prohibit any
torture. The Torture Statute, the implementing legislation for the
attempt to remove executive action from the scope of these prohi-
United Nations Convention Against Torture and Other Cruel,
bitions.66 Thus, presidential signing statements that implicitly
Inhuman or Degrading Treatment or Punishment, created crimi-
authorize torture, a jus cogens norm, violate international law.
nal penalties for individuals who “commit or attempt to commit”
torture.53 The president is acting contrary to the will of Congress Conclusion
when he issues signing statements offering alternative interpreta-
U.S. presidents have historically relied on signing statements
tions of Congress’ unambiguous prohibition against torture. As
to modify the application and reinterpret the meaning of national
Justice Jackson argued in Youngstown, “When the President takes
statutes and international treaties. Some legal scholars and admin-
measures incompatible with the expressed or implied will of
istration officials have upheld signing statements as a viable means
Congress, his power is at its lowest ebb, for then he can rely only
for articulating presidential understanding of legislation and for
upon his own constitutional powers minus any constitutional
guiding judicial interpretation of legislation.
powers of Congress over the matter.”54
History aside, President George W. Bush’s use of signing state-
Further, signing statements frustrate U.S. compliance with
ments threatens to undermine unambiguous domestic and interna-
international norms prohibiting torture. The International
tional prohibitions against torture and cruel, inhuman, and degrad-
Covenant on Civil and Political Rights (ICCPR) prohibits torture
ing treatment. Consequently, President Bush’s signing statements
and cruel, inhuman, and degrading treatment. As the Supreme
jeopardize an individual’s right to be protected from egregious human
Court noted in Sosa v. Alvarez-Machain, however, “Several times
rights violations. The president cannot invoke his Commander-in-
… the Senate has expressly declined to give the federal courts the
Chief power to justify the reinterpretation of domestic legislation to
task of interpreting and applying international human rights law,
conflict with international legal standards prohibiting torture.
as when its ratification of the International Covenant on Civil and
Recent signing statements invite the reinterpretation of treaty
Political Rights declared that the substantive provisions of the doc-
norms, which the United States has a duty to uphold under the
ument were not self-executing.”55 Although the ICCPR is a non-
Constitution, and customary international law norms, which are
self-executing treaty, it embodies norms recognized by the interna-
part of the federal common law. The United States therefore risks
tional community. Attempts to undermine these norms places the
violating both domestic and international law by acting in contra-
United States in contravention of international will.
vention of these well-established prohibitions. The president can-
In addition to threatening U.S. treaty obligations, signing state-
not justify actions that are contrary to domestic and international
ments weaken U.S. compliance with customary international law,
obligations. To do so would give the president the power to “easi-
which arguably forms a part of federal common law56 and is there-
ly contrive a constitutional excuse to decline enforcement of any
fore enforceable in U.S. courts.57 Customary international law con-
law he deplored, and transform his qualified veto into a monarch-
sists of widely accepted state practice stemming from a sense of legal
like absolute veto.” HRB
obligation.58 States are bound by customary international law unless

24
ENDNOTES: Reinterpreting Torture
1 U.S. Dep’t of State, Remarks Upon her Departure for Europe,
http://www.state.gov/secretary/rm/2005/57602.htm (Dec. 5, 2005).
2 BBCNews, U.S. does not torture, Bush insists,
http://news.bbc.co.uk/2/hi/americas/4415132.stm (Nov. 7, 2005).
3 28 U.S.C. § 1350 (note). The TVPA permits civil suits in the United States
against individuals who act under color of foreign law to perpetrate acts of
torture.
4 18 U.S.C. §§ 2340-2340A (2000).
5 Detainee Treatment Act of 2005, Pub. L. No. 109-148 § 1001, 119 Stat.
2739 (McCain Amendment). The McCain Amendment both recognizes the
U.S. Army Field Manual as the authority on interrogation techniques by the
Department of Defense and expressly prohibits torture and cruel, inhuman,
and degrading treatment of individuals under custody or control of the U.S.
government.
6 Statement by President of the United States, Statement by President George
Bush upon Signing H.R. 2863, 2005 U.S.C.C.A.N. S50 (Dec. 30, 2005).
7 See Christopher S. Kelley, A Comparative Look at the Constitutional Signing
Statement: The Case of Bush and Clinton 3-5 (Apr. 3-6, 2003); Phillip J. Coop-
er, George W. Bush, Edgar Allan Poe, and the use and abuse of presidential sign-
ing statements, 35 Presidential Studies Quarterly 3, 516-17 (Sept. 1, 2005).
8 Kelley, A Comparative Look at the Constitutional Signing Statement at 5.
9 Andrew Sullivan, Time, “We Don’t Need a New King George” (Jan. 19,
2006), available at http://www.time.com/time/magazine/article/
0,9171,1149361,00.html.
10 See American Bar Association, Task Force on Presidential Signing State-
ments and the Separation of Powers Doctrine, Recommendation 11, 14 (Aug.
2006), available at http://www.boston.com/news/nation/articles/2006/04
/30/bush_challenges_hundreds_of_laws/.
11 Michelle E. Boardman, Deputy Assistant Attorney General, Office of Legal
Counsel, U.S. Dep’t of Justice, Statement before the Committee on the Judi-
ciary, United States Senate, on Presidential Signing Statements (June 27,
2006).
12 Charlie Savage, Boston Globe, “Bush blocked probe, AG testifies; Senate
examines wiretap program” (July 19, 2006), available at http://www.boston.
com/news/nation/articles/2006/07/19/bush_blocked_probe_ag_testifies/.
13 On July 19, 2006, President Bush issued his first veto of the Stem Cell
Research Enhancement Act of 2005. See George W. Bush, Message to the
House of Representatives (July 19, 2006), available at http://www.
whitehouse.gov/news/releases/2006/07/20060719-5.html.
14 Marc V. Garber and Kurt A. Wimmer, Presidential Signing Statements as
Interpretatiosn of Legislative Intent: An Executive Aggrandizement of Power, 24
Harv. J. on Legis. 363, 367 (1987).
15 Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal
Counsel, Memorandum to Litigation Strategy Working Group, Using Presi-
dential Signing Statement to Make Fuller Use of the President’s Constitutionally
Assigned Role in the Process of Enacting Law (Feb. 5, 1986).
16 American Bar Association, “Recommendation” at 10.
17 Walter Dellinger, Opinion of the Office of Legal Council, Memorandum
for Bernard M. Nussbaum, Counsel to the President, The Legal Significance of
Presidential Signing Statements (Nov. 3, 1993).
18 Id.
19 Walter Dellinger, Assistant Attorney General, Memorandum for the Hon-
orable Abner J. Mikva, Counsel to the President, Presidential Authority to
Decline to Execute Unconstitutional Statutes (Nov. 2, 1994), available at
http://www.usdoj.gov/olc/nonexcut.htm.
20 Id.
21 American Bar Association, “Recommendation” 13-14, citing Special White
House Briefing on Provision in the FY1996 Defense Authorization Bill Relat-
ing to HIV-positive Armed Services Members, Federal News Service (Feb. 9,
1996) and Allison Mitchell, New York Times, “President Finds a Way to Fight
Mandate to Oust H.I.V. Troops” (Feb. 10, 1996).
22 5 U.S. (1 Cranch) 137 (1803).
23 See Dellinger, The Legal Significance of Presidential Signing Statements.
25
24 Id. at 6.
25 Garber and Wimmer, Presidential Signing Statements as Interpretations of
Legislative Intent at 375-76.
26 U.S. Const. art. I, sec. 7, cl. 2.
27 See generally Clinton v. New York, 524 U.S. 417 (1998).
28 See Statement by President George Bush Upon Signing H.R. 2863.
29 See Savage, “Bush challenges hundreds of laws.”
30 See generally Charlie Savage, Boston Globe, “Examples of the president’s
signing statements,” http://www.boston.com/news/nation/articles/2006/
04/30/examples_of_the_presidents_signing_statements/ (Apr. 30, 2006).
31 343 U.S. 579, 638 (1952).
32 Cooper, George W. Bush, Edgar Allan Poe, and the use and abuse of presiden-
tial signing statements.
33 Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).
34 Statement by President of the United States, Statement by President George
Bush upon Signing H.R. 2092, 1992 U.S.C.C.A.N. 91 (Mar. 12, 1992).
35 President Bush states, “The United States must continue its vigorous efforts
to bring the practice of torture and other gross abuses of human rights to an
end wherever they occur.”
36 Id.
37 18 U.S.C. §§ 2340-2340A (2000).
38 Id.
39 Jay S. Bybee, Assistant Attorney General, Memorandum for Alberto R.
Gonzales, Counsel to the President, Standards of Conduct for Interrogation
under 18 U.S.C. §§ 2340-2340A 1 (Aug. 1, 2002), available at
http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_200
20801_JD_%20Gonz_.pdf#search=%22torture%20memo%22 (Bybee mem-
orandum).
40 U.S. Reservations, Declarations, and Understandings to the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment, Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990).
41 Amnesty International, United States of America, “Guantánamo and beyond:
The continuing pursuit of unchecked executive power,” http://web.amnesty.
org/library/Index/ENGAMR510832005?open&of=ENG-IRQ (May 13, 2005).
42 The Bybee memorandum asserted that “[f ]or purely mental pain or suffer-
ing to amount to torture under Section 2340, it must result in significant psy-
chological harm of significant duration, e.g., lasting for months or even years.”
43 Id. at 2.
44 Memorandum Opinion for the Deputy Attorney General, Legal Standards
Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004).
45 Harold Hongju Koh, Can the President be Torturer in Chief?, 81 Ind. L.J.
1145, 1151 (2006).
46 McCain Amendment, 119 Stat. 2739..
47 See generally 13 No. 2 Hum. Rts. Brief 39-40 (2006).
48 Statement by President George Bush Upon Signing H.R. 2863.
49 Dahlia Lithwick, Presidential signing statements are more than just executive
branch lunacy, http://www.slate.com/toolbar.aspx?action=print&id=2134919
(Jan. 30, 2006).
50 Marbury, 5 U.S. (1 Cranch) at 177.
51 Geneva Convention Relative to the Treatment of Prisoners of War art. 3,
Aug. 12, 1949, 6 U.S.T. 3116, 75 U.N.T.S. 135.
52 126 S. Ct. 2749, 2793-98 (2006).
53 18 U.S.C. §§ 2340 -2340(A).
54 343 U.S. at 637.
55 542 U.S. 692, 728 (2004) (internal citations omitted).
56 The Supreme Court recognized in The Paquete Habana, 175 U.S. 677, 700
(1900), that “[i]nternational law is a part of our law, and must be ascertained
and administered by the courts of justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly presented for their determination.”
endnotes continued on page 43
 Israel, Hezbollah and the Conflict in Lebanon:
An Act of Aggression or Self-Defense?
by Victor Kattan*

According to Israel, the war started with a cross-border raid

T
he legal issues surrounding the use of force,
known to international lawyers as jus ad bellum, have
once again been thrust into the legal limelight as a
result of recent Israeli military action in Lebanon.
Human rights organizations such as Amnesty International
accused Israel of deliberately targeting civilian infrastructure and
committing war crimes during the month-long conflict.1 Amnesty
said that Israel’s strikes on civilian buildings and structures went
beyond “collateral damage,” amounting to indiscriminate and dis-
proportionate attacks contrary to the Geneva Conventions and the
laws of war.2 It released aerial photographs that showed suburbs in
Beirut being reduced to “grey wastelands” as a result of Israeli
bombing. According to a study Amnesty undertook with its field
workers in Lebanon, Israel launched more than 7,000 air strikes
against that country and naval vessels launched 2,500 shells.3
This article will assess the factual situation that led to the con-
flict and will compare Israel’s response to the principles and norms
of international law as set out in the Charter of the United Nations
(UN Charter), the jurisprudence of the International Court of
Justice (ICJ), and the writings of legal scholars. This paper will not
by Hezbollah that led to the capture of two soldiers. Israel retaliat-
ed by sending a group of soldiers into Lebanon in hot pursuit.8
After the Israeli soldiers crossed the border they were killed in an
ambush by Hezbollah guerillas when their tank drove over a mine
(three soldiers were killed in the initial operation, four by the mine
and another in the rescue mission).9 In retaliation Israel launched
Operation Change of Direction in which the Israeli army Chief of
Staff, Lt. Gen. Dan Halutz, threatened to “turn back the clock in
Lebanon by twenty years.”10 In contrast, Hezbollah claims that Israel
initiated the conflict by sending its soldiers into Aitaa al-Chaab
(Ayta Al-Sha’b), a Lebanese village just north of the Israeli border.11
The G8, which was meeting in St. Petersburg at the time the
violence broke out, accepted Israel’s justification but cautioned
Israel to be mindful of the strategic and humanitarian conse-
quences of its actions.12 On August 5, 2006, the text of a draft
Security Council resolution was published in the New York Times.13
It is apparent from preambular paragraph 2 of the draft that the
Courtesy of Aisha Bain, Civil Resistance in Lebanon

address the extent to which Israel’s actions in Lebanon amount to

a breach of international humanitarian law and what possible con-
sequences might arise from this conclusion. Rather, it will focus on
the rules regarding the recourse to armed force.
It is submitted that Israel’s bombardment, blockade, and sub-
sequent invasion of southern Lebanon could not be excused as an
act of self-defense under international law, as these actions were
clearly unnecessary and disproportionate. Rather, it would seem
that Israel’s actions, being both offensive and punitive, would be
more accurately described as acts of aggression contrary to the pur-
poses and principles of the UN Charter.

The Factual Background

On July 12, 2006, a frontier dispute between the Israeli Army
and the armed wing of Hezbollah rapidly developed into a full-
scale armed conflict, leaving hundreds of civilians (mostly
Lebanese) dead. Only the passing of UN Security Council
Resolution 1701 brought a respite to the 34 days and nights of
intense fighting in which approximately 1,164 people (mostly
civilians) were killed.4 Of these, 162 were Israeli (of whom 119
were military personnel).5 Nearly 900,000 Lebanese and 300,000
Israelis were displaced from their homes with the former having lit-
tle to return to as the Israeli military had caused extensive destruc-
tion to southern Lebanon with an intense bombing campaign.6
When a ceasefire was declared on August 14, at 8 a.m. local time,
there were some 30,000 Israeli troops stationed inside Lebanon,
south of the Litani River.7
* Victor Kattan, LL.B (Hons.) Brunel University (2001) and LL.M Leiden
University (2002), is a Visiting Fellow at the British Institute of International
and Comparative Law.
A school in the Lebanese village of Bint Jbeil hit by Israeli missiles.
Council considered Hezbollah’s attack on Israel of July 12 the
aggravating factor which led to the spiral of violence in the Middle
East. Notably, it does not use the expression “armed attack” associ-
ated with Article 51 of the UN Charter which proscribes the extent
to which a state may legitimately defend itself under international
law. In the actual text of resolution 1701 adopted unanimously six
days later, the preambular and operative paragraphs referred to in
the draft above were left unchanged.
International Law and the Use of Force
Recourse to war as a means of solving international contro-
versies was outlawed by the Pact of Paris (the Kellogg-Briand Pact)
in 1928. It was also restricted by the Charter of the League of
Nations drafted at the end of the Great War (1914-18). The
Atlantic Charter, the UN Charter, and the Helsinki Final Act
restricted the scope of state resort to armed force still further. The
UN Charter provides in Article 2(4): “All Members shall refrain in

26
their international relations from the threat or use of force against recent study on the subject.21 They point out that Article 51 is an
the territorial integrity or political independence of any State, or in exception to the prohibition on the use of force contained in
any other manner inconsistent with the Purposes of the United Article 2(4) which only applies to states. And of course the Charter
Nations.” only applies to its members which are restricted by Article 4(1) to
Today, the prohibition of aggression is universally considered “peace-loving” states.22
to have reached the status of a jus cogens norm. In fact crimes asso- Whether the law has changed in the aftermath of the 9/11
ciated with war entail individual criminal responsibility, and the attacks so as to apply to non-state actors according to state practice
military commanders implicated in such atrocities can be indicted and opinio juris is open to debate. It should be stressed that the
before the International Criminal Court in The Hague. practice by states like Israel, the U.S., and even the UK, as high-
Alternatively, they can be tried in the courts of third states under lighted in articles by legal scholars, are not universally accepted as
the doctrine of universal jurisdiction. This is relevant in the pres- representing the current state of international law on the use of
ent situation since neither Israel nor Lebanon is a State Party to the force and self-defense.23 On the other hand, the fact that the G8
Rome Statute. referred Hezbollah specifically, rather than Lebanon, may be evi-
To make a legitimate claim of self-defense under internation- dence of a new custom emerging.24 In any event, for the sake of
al law, reference must be made to Article 51 of the UN Charter argument, it will be assumed that Article 51 permits a state to
which provides in part: “Nothing in the present Charter shall defend itself in the event of an armed attack by a non-state actor
impair the inherent right of individual or collective self-defense if — but only if there is a certain link with a state.25
an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to main-
tain international peace and security.” Israel’s UN Ambassador
referenced Article 51 on July 12, in identical letters to the UN

Courtesy of Aisha Bain, Civil Resistance in Lebanon

Secretary-General and the Security Council. He wrote:
Israel thus reserves the right to act in accordance with Article 51
of the Charter of the United Nations and exercise its right of
self-defence when an armed attack is launched against a
Member of the United Nations. The State of Israel will take the
appropriate actions to secure the release of the kidnapped soldiers
and bring an end to the shelling that terrorizes our citizens.14
In Nicaragua v. United States of America, the ICJ ruled that
“the prohibition of armed attacks may apply to the sending by a state
of armed bands to the territory of another state, if such operation,
because of its scale and effects, would have been classified as an
armed attack rather than a mere frontier incident had it been carried
out by regular armed forces.”15 Thus, the attack has to be of a cer-
tain scale and inter-state in character. It must be serious, not trivial,
and it is clear that frontier disputes do not amount to armed attacks. Hundreds of homes in the Lebanese village of Bint Jbeil reduced to rubble.
The jurisprudence of the court in the Nicaragua case was recently
upheld in the Oil Platforms case,16 the Wall advisory opinion,17 and
the case concerning armed activities on the territory of the Congo18. Aggression or Self-Defense?
For the sake of argument, it will be assumed that the Israeli The crux of the issue, therefore, is whether Hezbollah’s attack
version of events is correct — Hezbollah started the conflict by was so grave as to trigger the applicability of Article 51. While the
capturing two soldiers, killing several others, and firing a salvo of attack may not independently trigger Article 51, Israel could
rockets into Israeli border villages on July 14. Even so, it is not invoke the Nadelstichtaktik (needle prick) doctrine, also known as
entirely clear whether Israel can claim a right of self-defense under the “accumulation of events theory.” According to the
the UN Charter. As established in Nicaragua, Israel can make a Nadelstichtaktik doctrine, each specific act of terrorism, or needle
legitimate claim under Article 51 only if the attack by Hezbollah prick, though it may not independently qualify as an armed attack,
could be classified as an “armed attack” and not a mere frontier could, taking into consideration the totality of incidents, amount
incident. to an armed attack entitling the victim state to respond with armed
The Nicaragua court’s reasoning, however, is not without crit- force.26 Therefore, although the events of July 14 in isolation
icism.19 American academia, in particular, has criticized the court would likely not trigger Article 51, under Nadelstichtaktik the sev-
on the issue of the identity of the perpetrator of the armed attack eral incidents prior to July 14 may allow Israel to argue that it does.
— that it must be directed from a state.20 This is because Article Since Nadelstichtaktik is just a theory and not a rule of inter-
51 is silent on the state requirement and the travaux preparatoire national law, it carries little juridical weight. The ICJ, however,
provide no explanation for this anomaly. Rather, the state require- seems to have considered the doctrine in its judgment on
ment was the consensus interpretation placed upon the definition Nicaragua27 and more recently in armed activities in the Congo.28
of an armed attack in Article 3(g) of the Definition of Aggression While the court lacked sufficient evidence to rule conclusively on
annexed to General Assembly resolution 3314, passed in the mid- the matter in both cases, it appears from the ICJ’s jurisprudence
1970s when wars of national liberation were in vogue. Yet, despite that the doctrine requires a series of attacks to be “collective,”
these criticisms, the state requirement still remains the majority “cumulative in character,” and attributable to a state.29
interpretation advanced by students of the Charter according to a
27
 If Israel is permitted to invoke the Nadelstichtaktik theory, it
could just as easily be used by Lebanon, for Israel frequently enters
Lebanon’s territorial waters without its consent. Furthermore, the
Lebanese government accuses Israel of regularly violating its air-
space between May 2000 and July 2006.30 Lebanon considers these
incursions “a form of international terrorism,” alleging that these
low-altitude flights break the sound barrier over civilian-populated
areas and “instill terror among Lebanese civilians, especially chil-
dren.”31
In a letter addressed to the UN Secretary-General, Lebanon
described these flights as “unlawful acts of aggression and provoca-
tion.”32 The letter said that Lebanon would “exercise its natural
and lawful right of self-defence, opposing them with ground anti-
aircraft fire.”33 Israel also has a long history of launching major
attacks upon that country (in 1968, 1973, 1978, 1982, 1993,
1996, and 1999) and has left thousands of land mines in the south
which the UN Committee on the Rights of the Child found Israel
responsible (Israel was an occupying power in southern Lebanon
from 1982-2000).34 On the basis of the Nadelstichtaktik doctrine,
Lebanon could therefore claim a right of self-defense which would

Courtesy of Aisha Bain, Civil Resistance in Lebanon

preclude Israel from doing so as two states cannot validly assert
such a right.
Moreover, even if the Nadelstichtaktik doctrine is applicable,
it would not justify Israel’s recent war against Lebanon. The bor-
der has been relatively stable since Israel’s withdrawal from south-
ern Lebanon in 2000, although there have been several clashes
within the Blue Line (in Lebanon) in the Shabaa Farms area. Yet
Israel did not respond with such overwhelming force in its previ-
ous clashes with Hezbollah. One may question why Israel felt the
need to respond so aggressively in the summer of 2006. Regardless
of the various theories advanced in support of military action, it
must be emphasized that the use of force in international relations
is subject to the conditions of proportionality and necessity.35 This
means that a state may only use force that is necessary to repel an
armed attack and its response must be proportional to that attack.
After all, the whole raison d’être of the UN Charter is to “save suc-
ceeding generations from the scourge of war.”
It should be clearly stated that Israel may not resort to self-
help in an attempt to coerce the Lebanese government to act
against Hezbollah. The right of states to use force to enforce inter-
national law was outlawed by the UN Charter. In the Corfu
Channel case, the ICJ declared that British mine-sweeping opera-
tions in Albanian territorial waters without the latter’s consent
amounted to “the manifestation of a policy of force, such as has, in
the past, given rise to most serious abuses and such as cannot,
whatever be the present defects in international organization, find
a place in international law.”36
Nor may Israel resort to armed reprisals.37 This is clear from
the 1970 Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States in
Accordance with the Charter of the United Nations which declares
that “[s]tates have a duty to refrain from acts of reprisal involving
the use of force.” Having said this it is highly questionable whether
Israel’s actions in Lebanon could even be described as reprisals
since under pre-Charter law these were also subject to the condi-
tions of necessity and proportionality.38 Israel’s actions would
therefore more accurately be described as acts of aggression which
the International Military Tribunal at Nuremberg characterized as
an offence in 1945.39 It should also be said that Israel’s blockade of
Lebanon’s ports and coastline is also deemed by the UN to consti-
28
Human rights activists pick their way through the rubble of a flattened
neighborhood in Al-Dahiya, a southern suburb of Beirut, after an Israeli attack.
tute an “act of aggression.”40 If maintained effectively — as it was
for over one month — it could further be considered an armed
attack allowing Lebanon to defend itself under Article 51.41
Furthermore, the Israeli attack cannot be justified as self-
defense because, in the words of Daniel Webster in the famous
Caroline incident, there was not a “necessity of self-defense, instant,
overwhelming, leaving no choice of means, and no moment of
deliberation.”42 As a regional superpower Israel had plenty of other
means and the arsenal available to respond differently if it so
wished, whether by commando action, police action, or through
diplomacy. The fact that Israel did not even give the Lebanese gov-
ernment the opportunity to arrest and detain the suspects on its soil
before resorting to the use of force — which should always be a
means of last resort, is revealing. Israel has exchanged prisoners with
Hezbollah before, and it could have done so again.43
It is submitted that Hezbollah’s July 14 attack on Israel did
not threaten its territorial integrity or political independence, the
only grounds for justifiable war.44 Rather, the converse is true:
Israel’s bombardment of Lebanon’s major cities and its full-scale
invasion of the south threatened its existence and political inde-
pendence as a sovereign nation. Even if Israel could resort to
Article 51 — assuming that it was subject to an armed attack — it
would seem that Israel exhausted that right when it pursued the
guerillas into Lebanon in the aftermaths of the initial attack.
Israel’s actions were neither necessary nor proportionate to the
scale of the threat posed by Hezbollah. So even if, for arguments
sake, Israel’s actions did fall within the Article 51 exemption, its
actions were both disproportionate and unnecessary.
Indeed, it might be questioned whether Israel’s actions in
Lebanon were defensive at all, as many of the tactics it undertook
could be characterized as offensive and even punitive. During the
Israeli army’s operation Summer Rain in the Gaza Strip in June
2006 (immediately preceding events in Lebanon), which took
place after the armed wing of Hamas captured an Israeli soldier in
reaction to a series of Israeli rocket and mortar attacks which left
many Palestinian women and children dead, Amir Peretz, Israel’s
Defense Minister, said: “We will take revenge against anyone who
injures the soldier, including their leaders.”45 Words like “revenge”,
“turning back the clock” or “mortal blow” (which was used by Ariel
Sharon to refer to his Gaza disengagement plan which was imple-
mented in September 2005) can hardly be described as defensive.46
Concluding Remarks
In spite of misgivings amongst scholars on the scope of the
right of self-defense and the use of force in international law, par-
ticularly on the question of how much force is necessary for it to
amount to an armed attack,47 it is submitted that, in the aftermath
of the 9/11 atrocities, trans-boundary attacks by non-state actors
may amount to an armed attack triggering the applicability of
Article 51.48 Even so, this is provided that: (a) there is a sufficient
link with a state; and (b) the attacks are of a sufficient scale and
effect (meaning, they are not trivial).
It is arguable whether the right of self-defense would be rele-
vant to territory which is subject to belligerent occupation, partic-
ularly if it is prolonged and protracted.49 In that case it is submit-
ted that the law of occupation effectively derogates from the right
of self-defense in Article 51 of the Charter.50 Since Israel withdrew
from southern Lebanon in 2000, this issue is of no consequence.51
ENDNOTES: Israel, Hezbollah and the Conflict
1 David Frickling, The Guardian, “Amnesty report accuses Israel of war crimes,”
http://www.guardian.co.uk/israel/Story/0,,1856587,00.html (August 23, 2006).
2 Amnesty International - AI Index: MDE 18/007/2006, Israel/Lebanon–Delib-
erate Destruction or Collateral Damage? Israeli Attacks on Civilian Infrastructure,
http://web.amnesty.org/library/index/ENGMDE180072006 (August 23, 2006).
3 Id.
4 Arab Media Watch, Lebanon Body Count, available at http://www.arabmedi-
awatch.com/amw/CountryBackgrounds/Lebanon/LebanonBodyCount/tabid/3
25/Default.aspx.
5 Israel Ministry of Foreign Affairs, Israel-Hizbullah conflict: Victims of rocket
attacks and IDF casualties, http://www.israel-mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Terrorism+from+Lebanon-+Hizbullah/Israel-
Hizbullah+conflict-+Victims+of+rocket+attacks+and+IDF+casualties+July-
Aug+2006.htm (accessed Sept. 30,2006).
6 “ ... more than 700,000 Lebanese were displaced inside their country and
some 180,000 were sheltered in Syria.” UNHCR, Lebanon Crisis,
http://www.unhcr.org/cgi-bin/texis/vtx/lebanon-crisis?page=intro (accessed
Sept. 30, 2006).
7 David Frickling, The Guardian, “Israeli troops could be in southern
Lebanon for months,” http://www.guardian.co.uk/israel/Story/0,,1851501-
,00.html (August 16, 2006).
8 Amos Harel, Ha’Aretz, “Hezbollah kills 8 soldiers, kidnaps 2 in offensive on
northern border,” http://www.haaretz.com/hasen/pages/ShArt.jhtml?item-
No=737825, (July 13, 2006).
29
It would more likely seem that Hezbollah’s initial raid on July 12
was a classic frontier dispute falling outside the scope of Article 51.
Whether the Nadelstichtaktik doctrine is relevant depends on
facts which are always hard to verify in cross-border disputes,
which is probably one reason why they are excluded from the scope
of an armed attack. In these circumstances, there are sound policy
reasons not to confuse border incidents with armed attacks. The
insistence on a high threshold for an armed attack in Nicaragua
was to limit third party involvement, which the use of necessity
and proportionality alone would not exclude.52 Muslim organiza-
tions have already been quick to advance the argument that
“Lebanon has an inherent right to call other States to aide its self-
defense efforts” by citing the example of Kuwait’s call on the U.S.
for help when attacked by Iraq in 1990.53
The ICJ, in its advisory opinion on Nuclear Weapons, upheld
its decision in Nicaragua that the exercise of self-defense is subject
to the conditions of necessity and proportionality which it said is
a rule of customary international law.54 Even if it turns out that
Hezbollah’s raid of July 12 was much more serious than was initial-
ly thought to have been the case, it is doubtful that Israel’s response
can be justified as either necessary or proportionate to the threat
posed by Hezbollah. Israel did not restrict its actions to Hezbollah
but launched air strikes against the Lebanese army, which played
no role in the initial attack. Israel also launched attacks close to the
border with Syria.55 In the process it killed over 1,000 civilians,
destroyed 30,000 homes, 120 bridges, 94 roads, 24 fuel stations
(causing a shortage of supply) and 900 businesses, which is hardly
proportionate to the deaths of three soldiers and the capture of
two.56 If one were to conclude that Israel’s actions were neither
necessary nor proportionate it would be very difficult not to agree
with the statement by the Chargé d’affaires of the Permanent
Mission of Lebanon to the UN, that what had taken place was an
act of aggression even if it was not, as has been alleged, a premed-
itated act.57 HRB
9 Amos Harel, Jack Khoury, Ha’Aretz, “IDF retrieves bodies of four tank sol-
diers killed in south Lebanon,” http://www.haaretz.com/hasen/pages/-
ShArt.jhtml?itemNo=738310 (July 14, 2006).
10 Jon Clements, Daily Mirror, “Israeli PM vows action as army blasts into
Lebanon,” http://www.mirror.co.uk/news/tm_objectid=17376170&-
method=full&siteid=94762&headline=very--very--very--painful--
name_page.html (July 13, 2006).
11 Indo-Asian News Service (IANS), “Hezbollah captures two Israeli soldiers,”
available at http://in.news.yahoo.com/060712/43/65tzi.html (July 12, 2006).
12 G8 Summit 2006, “The St. Petersburg Declaration,” available at
http://en.g8russia.ru/docs/21.html (16 July 2006).
13 Draft Security Council Resolution, THE NEW YORK TIMES, (August 5,
2006).
14 Dan Gillerman, UN Doc. A/60/937, S/2006/515 (July 12, 2006).
15 Military and Paramilitary Activities in and against Nicaragua, (Nicar. v.
U.S.), Mertis, 1986 ICJ, REP., 14 (June 27), para 195.
16 See generally Oil Platforms (Iran v. U.S.), Judgment-Merits, 2003 I.C.J. 90
(November 6, 2003) available at http://www.icj-cij.org/icjwww/idocket/iop/-
iopframe.htm.
17 See generally Legal consequences of the construction of a wall in the occupied
Palestinian territory, Advisory Opinion, 2004 I.C.J. 131 (July 9, 2004) avail-
able at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.
endnotes continued on page 30
ENDNOTES: Israel, Hezbollah and the Conflict continued from page 29
18 See Armed activities on the territory of the Congo (Congo v Uganda), Judg-
ment-Merits 2005 I.C.J 116 (December 19, 2005) available at http://www.icj-
cij.org/icjwww/idocket/ico/icoframe.htm.
19 See, e.g., the Dissenting Opinion of Judge Schwebel in the Nicaragua case,
available at http://www.icj-cij.org/icjwww/icases/inus/inusframe.htm.
20 Ruth Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and
the Limits of Self-Defense, 99 Am. J. Int’l L. 52 (2005); Sean D. Murphy, Self-
defense and the Israeli Wall Advisory Opinion: an Ipse Dixit from the ICJ?, 99
Am. J. Int’l L. 62 (2005).
21 See generally Jörg Kammerhofer, Uncertainties of the Law of Self-Defence in
the United Nations Charter, 35 Netherlands Yearbook of Int’l Law 143, 178-
187 (2004).
22 U.N. Charter art. 4 para. 1 available at
http://www.unhchr.ch/html/menu3/b/ch-chp2.htm.
23 Christine Gray, International Law and the Use of Force, 160 (Oxford:
Oxford University Press, 2004).
24 See Sean D. Murphy, Terrorism and the Concept of “Armed Attack” in Article
51 of the UN Charter, 43 Harv. Int’l L.J. 41 (2002) (supportive of view that
Article 51 can apply to non-state actors); Carsten Stahn, Terrorist Acts as
‘Armed Attack’: The Right to Self-Defense, Article 51 (1/2) of the UN Charter,
and International Terrorism, 27 Fletcher F. World Aff. 35 (2003) (supportive of
view that Article 51 can apply to non-state actors); Matthew Scott King, The
Legality of the United States War on Terror: Is Article 51 a Legitimate Vehicle for
the War in Afghanistan or just a Blanket to Cover-Up International War Crimes?,
9 ILSA J. Int’l & Comp. L. 457 (2002-2003) (supportive of view that Article
51 can apply to non-state actors).
25 Tom Ruys and Sten Verhoeven, Attacks by Private Actors and the Right of
Self-Defence, 10 JC & SL 89 (2005).
26 Norman Menachem Feder, Reading the UN Charter Connotatively: Toward
a New Definition of Armed Attack, 19 N.Y.U. J. Int’l L. & Pol. 415 (1986-
1987).
27 Nicaragua v. U.S., at para. 231.
28 Congo v. Uganda at para. 146.
29 Id.
30 Associated Press, “Lebanon to complain to UN of Israeli land, sea, air space
violations,” available at http://www.haaretz.com/hasen/pages/ShArt.jhtml?-
itemNo=658601 (December 16, 2005).
31 Letter from the Chargé d'affaires a.i. of the Permanent Mission of Lebanon
to the United Nations addressed to the Secretary-General (February 4, 2003);
UN doc. A/57/722, S/2003/148 (February 5, 2003).
32 Id.
33 Id.
34 Concluding Observations of the Committee on the Rights of the Child:
Israel, UN Doc. CRC/C/15/Add.195, paras. 58-59 (October 9, 2002) avail-
able at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7b3bc74d6890921-
bc1256c7f0033e856?Opendocument.
35 See Seymour M. Hersh, The New Yorker, “Watching Lebanon,” (August 21,
2006) available at www.newyorker.com/printables/fact/060821fa_fact (the
Israeli assault on Lebanon had been planned in advance as a prelude to a
major attack by the US on Iran); see also John Kampfner, New Statesman,
“Blood on his hands,” (7 August 2006) at 12-14. (British Prime Minister
knew and approved of impending Israeli attack).
36 The Corfu Channel Case (U.K. v. Albania), Judgment-Merits, 1949 I.C.J. 1,
35 (April 9, 1949) available at http://www.icj-cij.org/icjwww/icases/icc/-
iccframe.htm.
ENDNOTES: The “War on Terror” continued from page 6
9 CNN, Bush: CIA Holds Terror Suspects in Secret Prisons, http://www.cnn.
com/-2006/POLITICS/09/06/bush.speech/index.html (Sept. 7, 2006).
10 Convention Against Torture, art. 3, Dec. 10, 1984, available at
http://www.unhchr.ch/html/menu3/b/h_cat39.htm.
11 Human Rights Watch, Outsourcing Torture: Renditions and Diplomatic
Assurances, http://hrw.org/campaigns/torture/renditions.htm
(accessed Oct. 12, 2006).
30
37 On the legality of armed reprisals, see Roberto Barsotti, “Armed Reprisals,”
in A. Cassese, ed., The Current Legal Regulation of the Use of Force, 79-110
(Dordrecht: Martinus Nijhoff Publishers, 1986); see also Ian Brownlie, Inter-
national Law and the Use of Force by States, 281-82 (Oxford: Clarendon Press
1963); see also Rosalyn Higgins, The Development of International Law
Through the Political Organs of the United Nations, 217-18 (Oxford: Oxford
University Press 1963); see generally Richard Falk, The Beirut Raid and the
International Law of Retaliation 63 Am. J. Int’l L. 415 (1970).
38 Naulilaa Case (Germany v. Portugal), 2 Int. Arb. Awards 1013 (July 31, 1928)
39 Charter of the International Military Tribunal, art. 6, appended to Agree-
ment for the Prosecution and Punishment of the Major War Criminals of the
European Axis, 82 UNTS, 279 (August 8, 1945).
40 G.A. Res. 3314, art. 3(c) (December 14, 1974).
41Albrecht Randelzhofer, “Article 51,” 797, para. 23 in Bruno Simma et al
(eds.) The Charter of the United Nations: A Commentary (Oxford: Oxford Uni-
versity Press 2002).
42 Robert Yewdall Jennings, The Caroline and Mcleod Cases, 32 Am. J. Int’l L.
82 (1938).
43 Ravi Nessman, The Age, “Israel-Hizbollah prisoner swap to take place
Thursday” (January 27, 2004), http://www.theage.com.au/arti-
cles/2004/01/27/1075088010362.html?from=storyrhs
44 U.N. Charter art. 2, para. 4; Helsinki Final Act, art. II. See also Richard
Falk, Zaman Daily News, “Lurching Toward Regional War in the Middle East”
(July 21, 2006) available at
http://www.zaman.com/?bl=commentary&alt=&trh=20060721&hn=34951.
45 Ian Fisher, Israel’s Defense Minister is Faulted by Left and Right, THE NEW
YORK TIMES (June 26, 2006).
46 BBC News Online, “Sharon defers Palestinian State,” (April 5, 2004),
http://news.bbc.co.uk/2/hi/middle_east/3601593.stm.
47 Rosalyn Higgins, Problems and Process: International Law and How We Use
It, 251 (Oxford: Clarendon Press 1994).
48 U.N.S.C. Res. 1368 (2001) and 1373 (2001).
49 Convention (IV) respecting the Laws and Customs of War on Land and its annex:
Regulations concerning the Laws and Customs of War on Land, art. 43 (October
18, 1907) available at http://www.icrc.org/ihl.nsf/FULL/195?OpenDocument.
50 Christian J. Trams, Light Treatment of a Complex Problem: The Law of Self-
Defence in the Wall Case, 12 EJIL 963, 970 (2005).
51 The Israeli Withdrawal from Southern Lebanon, Special Update, Israel
Ministry of Foreign Affairs, (updated May 24, 2000),
http://www.mfa.gov.il/MFA/History/Modern+History/Historic+Events/The+Is
raeli+Withdrawal+from+Southern+Lebanon-+Spec.htm.
52 See Christine Gray, supra note. 36, at 148.
53 Islamic Human Rights Commission, The Blame Game: International Law
and the Current Crisis in the Middle East, (July 20, 2006) available at
http://www.ihrc.org.uk/show.php?id=1954.
54 See Legality of the Threat or use of Nuclear Weapons, Advisory Opinion,
para. 41 (July 8, 1996) available at http://www.icj-cij.org/icjwww/icases/
iunan/iunanframe.htm; see also Frederic L. Kirgis, ASIL Insight, “Some Pro-
portionality Issues Raised by Israel’s Use of Armed Force in Lebanon,” (August
17, 2006), http://www.asil.org/insights/2006/08/insights060817.html (on the
question of proportionality).
55 UN Press Release SG/SM/8918, (October 6, 2003) available at
http://www.unis.unvienna.org/unis/pressrels/2003/sc7887.html
56 See the Amnesty Report, supra note 2.
57 UN Doc. A/60/941, S/2006/529, (July 17, 2006).
12 BBC News, Q & A: Guantánamo hearings, http://news.bbc.co.uk/1/hi/-
world/americas/3541126.stm (June 13, 2006).
13 Id.
14 548 U.S. ___, 126 S.Ct. 2749 (2006).
15 Military Commissions Act of 2006.
16 Chaskalson, supra note 4.
17 548 U.S. ___, 126 S.Ct. 2749 (2006).
18 Chaskalson, supra note 4.
 INTERNATIONAL LEGAL UPDATES
Latin America
First “Dirty War” Convictions
in Argentina After Annulment
of Amnesty Laws
In June 2005, the Supreme Court of
Argentina annulled two amnesty laws that pre-
vented the prosecution of crimes committed
during Argentina’s “Dirty War.” These laws, the
“full stop” and “due obedience” laws, effective-
ly prevented all prosecution against high-rank-
ing military officers and lower-ranking officers
who followed the orders of their superiors.
The annulment of the two laws opened
the way for the prosecution of crimes against
humanity perpetrated by the military during
the 1976-1983 junta. The military junta was
responsible for kidnappings, torture, and
forced disappearances against dissident leftists
and other groups. Government agencies and
human rights organizations estimate the
number of deaths at anywhere between
10,000 and 30,000 individuals.
The first trial for forced disappearance
began on June 20, 2006. Miguel Osvaldo
Etchecolatz, a former police commissioner,
faced charges of illegal arrest and torture. In
1986, Etchecolatz received a 23 year prison
sentence for similar crimes, but the “due obe-
dience” law vacated his sentence a year later.
After three months of trial in the current case,
the federal court in La Plata convicted
Etchecolatz of crimes against humanity, com-
mitted within the framework of genocide. On
September 19, 2006, the court sentenced the
77 year old Etchecolatz to life in prison.
The sentence is unprecedented in
Argentina as the first time the judicial system
recognized guilt for crimes against humanity.
The conviction is also the first concrete judi-
cial recognition of a systematic plan of exter-
mination or genocide implemented by the
military junta during the “Dirty War.”
While Etchecolatz’s conviction is the first
recognizing crimes against humanity, it is the
second conviction for forced disappearances
since the abolishment of the amnesty laws.
On August 4, 2006, a federal court in Buenos
Aires sentenced Julio Héctor Simón, a former
police official, to 25 years in prison for the
illegal arrest and torture of José Poblete Roa
and Gertrudis Hlaczik de Poblete, a
Chilean/Argentine couple who were disap-
peared in 1978. Simón also took the couple’s
eight month old daughter, Claudia, and gave
her to a police lieutenant and his wife for
adoption. Claudia’s adoptive parents con-
cealed her true identity for 22 years.
The two convictions demonstrate the
Argentinean determination to pursue justice
for “Dirty War” crimes. In response to
Simón’s sentencing, José Miguel Vivanca,
Americas Director at Human Rights Watch,
declared: “This sentence shows that demo-
cratic institutions can eventually overcome all
the legal barriers erected to shield perpetrators
of crimes against humanity. Justice was finally
done where it needed to be done — in
Argentina itself.”
Etchecolatz and Simón are among dozens
of former police and state security officials who
face prosecution. Observers expect other trials
for crimes against humanity, including torture
and forced disappearances, to begin soon.
Despite these advances, the trials have also
faced some setbacks. A crucial witness in the
Etchecolatz trial, Jorge Julio López, went
missing a day before the sentencing.
Argentine authorities and human rights
groups fear that police officers or security
forces may have abducted and killed
Etchecolatz in order to intimidate future pros-
ecutors, judges, and witnesses. The López
family flatly rejects one theory that suggests
López committed suicide, distressed by the
trial. In fact, judges, prosecutors, and other
witnesses report that they receive threatening
letters and phone calls. Such happenings leave
human rights groups to wonder whether,
despite convictions for Argentina’s “Dirty
War” crimes, the problem of forced disappear-
ances is a contemporary phenomenon.
First Case of Forced Disappearance
Reaches Guatemalan Courts
During 36 years of civil war in Guatemala,
state security forces destroyed more than 400
villages, killed more than 140,000 people,
and displaced hundreds of thousands of
people from their homes. State security forces
also “disappeared” more than 45,000 people,
31
though unrecovered disappearances are
not reflected in the country’s wartime death
tolls. The Guatemalan government and
guerilla forces signed a peace accord ending
the civil war in December 1996. Despite the
large number of disappeared individuals,
almost ten years passed before the first forced
disappearance case reached the Guatemalan
court system.
The case against Felipe Cusanero, former
chief of the Civil Defense Patrols, is the first
case brought in Guatemala for civil war-era
forced disappearances. Cusanero is charged
with the disappearances of six people from
Choatalum in central Guatemala between
1982 and 1984. The court in Chimaltenango,
a southern Guatemalan city, was to hear argu-
ments on the case beginning on August 17,
2006. The case however is currently before
the Constitutional Court of Guatemala
because Cusanero’s lawyers claim that it is
unconstitutional. Cusanero’s lawyers insist
that as the Guatemalan government did not
define forced disappearance as a crime until
after the government and the guerilla forces
signed the peace accords, the court should not
apply the penal code retroactively against
Cusanero.
Edgar Pérez, the prosecuting attorney,
argues that the question of whether the court
must apply the penal code retroactively is
inapplicable. In 2000, Guatemala ratified the
Inter-American Convention on Forced
Disappearance of Persons (“Convention”).
According to Article III of the Convention,
the “offense [of the forced disappearance of
persons] shall be deemed continuous or per-
manent as long as the fate or whereabouts of
the victim has not been determined.”
According to Pérez and the Convention, the
case against Cusanero is not unconstitutional
because the offense in this case is continuous
until the authorities can determine the fate or
whereabouts of the victims.
The Constitutional Court of Guatemala
heard arguments regarding the case on
September 21, 2006. On the same day, a
United Nations team of human rights experts
visiting Guatemala to look into the wartime
disappearances urged the Constitutional
Court to allow the case to go to trial.
However, the court adjourned the hearing
without reaching a decision on the constitu-
tionality of the case.
If the case against Cusanero proceeds,
many other forced disappearance cases are
likely to follow. Maria Lopez, the wife of one
of the victims in the Cusanero case, said, “I
just want to know where his remains are so I
can take them to the cemetery.” Prosecution
of those accused of forced disappearances may
bring closure to the many families still waiting
to hear what happened to their loved ones.
A decision by the Constitutional Court to
allow the trial against Cusanero would
demonstrate the government’s commitment
to human rights by addressing the crimes
committed during the civil war. However, if
the Constitutional Court decides that
Cusanero’s defense is valid and the case is
unconstitutional, the prosecuting lawyers say
they plan to take the case to the Inter-
American Commission on Human Rights.
Africa
Burundian Hospitals Detain
Indigent Patients
The health sector in Burundi, which dete-
riorated during a decade-long civil war, still
has not recovered under the new government
of President Pierre Nkurunziza. The
Burundian government continues to allow
hospitals to detain patients who are unable to
pay their hospital bills. Previously, a large por-
tion of the detainees were women who suf-
fered childbirth complications and were
detained by the hospital with their children.
In an attempt to relieve the health crisis,
President Nkurunziza announced on May 1,
2006, that health care for children under the
age of five and maternal health care would be
free of charge. Though this measure provides
relief to mothers and small children, it does
little to aid the hundreds more who remain
detained.
Most of the detained patients are those
that underwent surgery, given that surgery is
often more expensive than other medical care.
Detention usually begins when patients
receive their bills and are unable to pay. They
are confined to the hospital premises and can
only leave by permission or if they escape. The
conditions under which the hospital holds the
detained patients are deplorable. The hospi-
tals generally do not provide meals to
detained patients, who then have to go with-
out food or depend on charities or family
members. Also, when detained patients
demonstrate that they are unable to pay their
bills, hospital officials sometimes refuse fur-
ther treatment. In one case, a 13 year old boy,
Felix M., was detained for over one year at
Prince Regent Charles Hospital in Bujumbura.
A UN vehicle hit Felix in July 2004, and the
monetary compensation the UN gave his par-
ents was only enough to cover a portion of his
bill. When his parents could not pay the rest
of the bill, the hospital detained him. During
the year of his detention, he could not attend
school and depended on a nun to bring him
food twice a day.
According to the Burundian Association
for the Protection of Human Rights and
Detained Persons (APRODH), there are hun-
dreds of stories like this one. Hospital deten-
tion based on the inability to pay a bill vio-
lates Article 11 of the United Nations
International Covenant on Civil and Political
Rights (ICCPR), which states that “[n]o one
shall be imprisoned merely on the ground of
inability to fulfill a contractual obligation.”
The government’s assent to this practice also
violates Article 12 of the United Nations
International Covenant on Economic, Social
and Cultural Rights (ICESCR), which
requires states to progressively realize the right
to the highest attainable standard of health.
Additionally, this practice discriminates
against the poor because it discourages indi-
gent people from seeking health care.
In a report published in September 2006,
Human Rights Watch called for the
Burundian government and other interna-
tional organizations to intervene. Among
other things, the report calls for the
Burundian government to immediately release
all detained patients, order an end to the prac-
tice, and propose legislation to make patient
detention illegal. The report also calls for the
IMF and World Bank to ensure that the
funds they give to the health sector go toward
ending the detention of indigent patients.
Ugandan Tabloid Instigates
Harassment of Homosexuals
In further attempts to harass homosexuals,
the Red Pepper, a Ugandan tabloid, published
the names of 13 women it identified as les-
bians on September 8, 2006. Because a
sodomy conviction carries a life sentence in
Uganda, human rights organizations are con-
cerned that the publication of the women’s
sexual orientation could put them in danger.
This was the third time in recent weeks that
32
the Red Pepper, known for its sensationalism,
identified lesbian, gay, bisexual, and transgen-
der (LGBT) individuals. On August 8 the
Red Pepper published the first names and
workplaces of 45 men the tabloid identified as
gay. The paper asserts it was publishing the
list to show that sodomy is destroying
Ugandan society. Following the publication,
Amnesty International received several reports
of harassment of individuals whom the
tabloid named.
Previous allegations of individuals’ sexual
orientation in print media have led to police
action in Uganda. In 2002 the Red Pepper
published a banner headline and photographs
reporting an alleged wedding between two
women in the capital, Kampala. Police
promptly arrested the women in question.
State-owned media have also contributed to
the harassment of homosexuals by calling for
stronger measures against homosexual con-
duct. In 2005 the government-owned news-
paper, New Vision, urged authorities to
increase their vigilance of LGBT people. Later
that month, local government officers raided
the home of Victor Juliet Mukasa, a lesbian
activist and Chairperson of Sexual Minorities
Uganda. Although Mukasa was not present,
the officers arrested and detained another les-
bian activist who was staying in her home.
For the past two years, the Ugandan gov-
ernment has used censorship to silence discus-
sion of LGBT rights. In October 2004 the
Broadcasting Council, a board of government
censors, fined a radio station for hosting a les-
bian and two gay men on a talk show. In
February 2005 the Media Council, a state
sponsorship board, banned the staging of
“The Vagina Monologues.” The Media
Council commented that they objected to the
play because it promotes, among other things,
illegal and unnatural acts of homosexuality.
Human rights organizations have called
on the Ugandan government to respect the
rights of LGBT people as prescribed by the
International Covenant on Civil and Political
Rights (ICCPR). Articles 2 and 26 of the
ICCPR provide that States cannot violate
human rights on the basis of sexual orienta-
tion. The same organizations have also called
for Ugandan authorities to end a long cam-
paign of homophobic statements, cease arrests
under the sodomy laws, repeal the sodomy
laws, and offer protection against violence
and harassment to human rights defenders
working to protect LGBT rights.
 Middle East
Humanitarian Crisis in Occupied
Palestinian Territories
Continued violence and Israeli-imposed
restrictions are having a severe impact on
civilians and civilian infrastructure in the
occupied Gaza Strip. While all eyes focused
on Lebanon this summer, the crisis intensified
as economic conditions drastically worsened
and the Israeli army increased its military
operations inside Gaza. With poverty and
unemployment rates at nearly 80 and 40 per-
cent, respectively, UN humanitarian agencies
have expressed alarm at the sharp decline in
the humanitarian situation of the 1.4 million
inhabitants of Gaza. Seventy percent of
Palestinians in the Gaza Strip cannot feed
themselves without assistance, a 30 percent
increase in just over a year.
According to the World Bank, Palestinians
are currently experiencing the worst econom-
ic depression in modern history. International
sanctions and Israeli-imposed movement
restrictions have devastated an already-crip-
pled economy. The Palestinian Authority (PA)
used to receive $1 billion per year in annual
aid from Western donors, and a monthly
transfer from Israel of $50–60 million in cus-
toms and tax revenues collected on the PA’s
behalf. Both were suspended shortly after the
installation of the democratically elected
Hamas-led government in March 2006.
Israel has also been imposing a near total
closure on Gaza. The International Committee
of the Red Cross reported that crossing points
in and out of the Gaza Strip, including the
Rafah border crossing with Egypt, remained
closed for most of August. The closure of the
main cargo transit point at Karni has resulted
in a virtual cessation of exports and a sharp
reduction in imports of raw materials. In a
September 27 speech to the United Nations
Relief Works Agency (UNRWA) Advisory
Committee, Commissioner General Karen
AbuZayd reported that UNRWA’s food distri-
bution in the Gaza Strip had been delayed
because of the severe difficulties in transport-
ing goods through Karni. Despite Israel’s pull-
out from Gaza in August 2005, it remains an
occupying power in the Gaza Strip with control
over borders, sea and airspace, public utilities,
the public registry, and Gaza’s internal econo-
my. As an occupying power, Israel is obligated
to uphold basic protections of the population
and territory under its control, pursuant to the
1907 Hague Convention and the 1949 Fourth
Geneva Conventions.
In addition to the dire economic condi-
tions, Israel’s continued military operations in
the Gaza Strip have exacerbated the humani-
tarian crisis. Triggered by a June 25
Palestinian attack on an Israeli army post in
which two Israeli soldiers were killed and one
was captured, Israel launched “Operation
Summer Rains.” In three months, the Israeli
military killed over 237 Palestinians, includ-
ing 53 children, and wounded nearly 825,
including 220 children. The Israeli military
has also fired at least 260 air-to-surface mis-
siles and thousands of artillery shells at most-
ly civilian targets, including government
buildings, educational institutions, private
homes, bridges, roads, and hundreds of acres
of agricultural land. In the early morning
hours of June 28, 2006, the Israeli Air Force
attacked and destroyed the only electrical
power plant operating in the Gaza Strip. As a
result of the lack of electricity, the level of
medical services provided by clinics and hos-
pitals has declined significantly, most of the
urban population receives only two or three
hours of water a day, the sewage system is on
the verge of collapse, and the lack of refriger-
ation has damaged food supplies and exposed
many to the danger of food-poisoning.
B’tselem, an Israeli human rights organiza-
tion, labeled this attack a war crime and called
on Israel to fund and facilitate the reconstruc-
tion of the plant, prosecute those responsible
for the bombing, and pass a government reso-
lution forbidding the Israeli military from
attacking civilians and civilian targets.
Iranian Political Prisoners
The death of two jailed political figures in
less than six weeks has sparked concerns over
the health and safety of Iranian political pris-
oners. Akbar Mohammadi and Valiollah Feyz
Mahdavi were reported dead by the govern-
ment on July 30 and September 6, respectively.
According to co-prisoners, both men had
been on a hunger strike to protest prison con-
ditions and the tenuous grounds for their
detention. Prison officials denied these
reports, claiming instead that Mahdavi, in
particular, had tried to commit suicide.
Mahdavi, who was 28, sympathized with
the outlawed opposition group Mojahedin
Khalq. Arrested in 2001, he was charged with
the crime of “armed resistance against the
state” and sentenced to death. The Iranian
Labor News Agency reported on June 6 that
the Chief of the Judiciary had commuted
Mahdavi’s death sentence to life in prison.
Mohammadi, a 38-year-old student activist,
33
was detained in 1999 following his involve-
ment in student protests at Tehran University.
Originally sentenced to death in September
1999, his sentence was commuted to 15 years
in prison in April 2001. Sources told Human
Rights Watch (HRW) that after his arrest in
1999, Mohammadi suffered severe torture
that lead to serious health problems. Family
who saw Mohammadi at the time of his bur-
ial reported that markings left on his body
were consistent with torture.
The deaths of Mahdavi and Mohammadi
have heightened fears regarding the fate of
other political prisoners in Iran. HRW
expressed serious concern for Ali Akbar
Mousavi Khoini, a human rights defender
and former Member of Parliament, who has
been held without charge in Tehran’s notori-
ous Evin prison since June 12. Detained while
attending a peaceful protest for women’s
rights in Tehran, Mousavi remains in solitary
confinement without access to his lawyers.
Recent reports allege that that Mousavi is
being tortured for his denouncement of the
judiciary and intelligence services’ human
rights abuses, prison conditions, and lack of
fair trails; criticisms that, in spite of his treat-
ment, he refuses to recant.
Refugees Flee Iraq
A September 2006 report by HRW enti-
tled Nowhere to Flee reveals that Palestinian
refugees in Iraq continue to be victims of
harassment, threats, kidnappings, and target-
ed killings, and an increasing number of them
have left or are trying to flee the country.
Neighboring Jordan and Syria have closed
their borders to Palestinian refugees, leaving
hundreds stranded on the borders, unable to
return to Iraq or seek safe haven.
The Palestinian community has been in
Iraq for decades, most arriving in 1948 after
being uprooted from their homes in Palestine
following the creation of the state of Israel.
Palestinian refugees received special treatment
under former Iraqi President Saddam
Hussein. This included the provision of subsi-
dized housing, often at the expense of Shi`a
landlords who received little compensation in
return. Immediately after the fall of Hussein’s
government in 2003, Shi`a landlords forcibly
evicted their Palestinian tenants, precipitating
violence and harassment against the
Palestinian community. In mid-March, a mil-
itant group calling itself the “Judgment Day
Brigades” distributed leaflets in Palestinian
neighborhoods, accusing the community of
collaborating with insurgents and threatening
death to those who did not leave Iraq. A
group called “Al-Bayt Revenge Brigades”
repeated this warning in early October, giving
Palestinians 72 hours to leave. According to
HRW, successive Iraqi governments have
done little to protect Palestinian refugees over
the past two years, instead often viewing them
with open hostility. Rather than affording
Palestinians their rights as refugees, the
Ministry of Interior has imposed onerous reg-
istration requirements, and officials have been
implicated in the arbitrary arrest, beating, and
torture of Palestinian residents.
This violence has led to the internal dis-
placement of thousands of Palestinian
refugees, and the flight of hundreds to neigh-
boring Jordan. Jordan initially blocked the
border for Iraqi Palestinians, but then allowed
a few hundred into the isolated al-Ruwaishid
refugee camp 85 kilometers from the Iraqi
border. HRW reports that Palestinian refugees
have been “virtual prisoners” in the camp for
three years. With no resolution in sight, more
than 250 refugees elected to return to Iraq
instead of remaining in the camp.
From March to May 2006, a group of
nearly 200 Iraqi Palestinians was stuck on the
Iraqi side of the Jordanian border after Jordan
refused them entry. Following a request from
the Palestinian Authority’s foreign minister,
Syria agreed to accept the refugees, but then
immediately closed its borders to all
Palestinians coming from Iraq. Consequently
approximately 330 Iraqi Palestinians, includ-
ing children and pregnant women, have been
stranded since May in “no man’s land” near
the Al-Tanf border crossing with Syria. Iraqi
citizens, in contrast, continue to enter Jordan
and Syria in large numbers — approximately
2000 per day. Chapter I, Article 3 of the
Convention Related to the Status of Refugees,
which neither Jordan nor Syria have ratified,
prohibits States Parties from discriminating
between refugees based on race, religion, or
country of origin. HRW called upon neigh-
boring countries to open their borders to
Palestinians fleeing Iraq, and to respect their
rights as refugees. HRW also pressed for
regional burden-sharing, appealing to the
broader international community to con-
tribute financial assistance to the host coun-
tries, or to offer third-country resettlement to
the refugees on a humanitarian basis.
Palestinians remain the world's oldest and
largest refugee population, comprising more
than one fourth of all refugees. Their right to
return is affirmed by International Refugee
and Human Rights Law, as well as UN
General Assembly Resolution 194 (1948).
Israel’s continued refusal to recognize this
right precipitates the vulnerability of the
Palestinian community, made clear by the vio-
lence in Iraq. As part of the regional solution,
HRW also called on Israel to permit
Palestinians originally from Gaza to immedi-
ately return to their homes.
Eastern Europe and Central Asia
Turkmen Journalist Dies in Prison
Imprisoned Turkmen journalist Ogulsapar
Muradova died of reportedly natural causes in
a Turkmen prison on September 14, 2006.
Muradova, a Radio Free Europe/Radio
Liberty (RFE/RL) journalist and human
rights activist, previously stated that security
agents followed and threatened to imprison
her and her children if she continued to write
for RFE/RL. While the constitution of
Turkmenistan provides for freedom of the
press, Reporters Without Borders ranked
Turkmenistan 165th out of 167 countries in
their 2005 Worldwide Press Freedom Index.
On June 18 the National Security
Ministers brought Muradova and other
activists into custody on suspicion of conspir-
ing to engage in espionage. These charges
were eventually reduced to illegal arms posses-
sion. After a two-hour trial, Muradova was
sentenced to seven years imprisonment. On
September 14 her body, reportedly showing
signs of violence and torture, including severe
bruising and large head wounds, was released
to her family.
Turkmen President Saparmurat Niyazov
issued a statement condemning Muradova
and the other activists, saying “Let people
condemn the traitors! The entire population
is proud of their motherland, whereas they are
trying to harm it!” According to a report
released by the non-governmental organiza-
tion Freedom House, Turkmenistan is one of
the world’s most repressive societies. Niyazov,
also known as the Turkmenbashi (father of all
Turkmens), has ruled the former Soviet
republic since its independence on October
27, 1991. In 1999 the Parliament of
Turkmenistan, the Mejilis, extended Niyazov’s
term in office indefinitely, although he recent-
ly announced that elections will occur by
2009. Currently, however, the Democratic
Party of Turkmenistan (DPT) is the only legal
political party.
In a statement released on September 21,
the U.S. Mission to the Organization for
34
Security and Cooperation in Europe (OSCE)
stated that Muradova’s death and apparent
torture underscore the need for greater trans-
parency and international access to those
arrested in connection with the November
2002 assassination attempt against President
Niyazov. Following that event, human rights
abuses, including the torture and punishment
of families of the accused, have been reported.
While Turkmenistan’s government denies the
charges, they have banned independent
observers at trials, rejected a mandatory
OSCE fact-finding mission, and refused the
International Committee for the Red Cross
access to prisons.
OSCE Chairman-in-Office Karel De
Gucht called upon Turkmenistan to adhere
to its OSCE commitments and conduct
an immediate investigation into the cause
of Muradova’s death, and to make the results
of this investigation widely available. On
October 4 the European Union’s International
Trade Committee voted to stop further
consideration of an interim trade agreement
with Turkmenistan in light of its gross human
rights violations. There is still concern over
the fate of Muradova’s two co-defendants who
are currently serving out seven-year sentences.
Kazakhstan Moves Toward
Freedom of Assembly
On September 30, 2006, both chambers
of Kazakhstan’s parliament approved a first
reading of a bill abolishing section six of article
44 of the country’s election law. That article
prohibits demonstrations from the day before
voting begins until the time when election
results are officially announced. The ban was
put in place in April 2005 following populist
movements in the post-Soviet republics of
Georgia, Ukraine, and Kyrgyzstan, and before
Kazakhstan’s December 2005 national elec-
tions. The bill’s parliamentary proponents
believe that protests, which could bring about
leadership change as they did in Ukraine’s
Orange and Georgia’s Rose Revolutions, are
no longer a threat in Kazakhstan. The bill will
also accelerate what many regard as a lagging
democratic process.
News Briefing Central Asia notes that out-
side political commentators have been skeptical
of the bill’s ability to increase freedom of
assembly, pointing out that assembly would
still be subject to a 1995 bill initiated by
President Nursultan Nazarbayev allowing pub-
lic meetings only when sanctioned in advance
by local authority. Sixty such applications have
been rejected during the past year alone.
 Justice Minister Zagipa Balieva noted that
pressure from the OSCE also played a role in
the bill’s reading. OSCE Chairman-in-Office
Karel De Gucht describes the bid for chair-
manship as both “a challenge and an opportu-
nity for the OSCE and for Kazakhstan.”
Deputy Foreign Affairs Minister Rakhat Aliyev
recently noted that the Kazakhstani parliament
would be adopting legislation to quell lingering
doubts on the fitness of Kazakhstan to assume
the OSCE presidency.
The United States is among those states
encouraging Kazakhstan’s efforts to play a
leading role in the OSCE, but it believes that
it is too early to consider Kazakhstan for the
presidency. Within the last two months U.S.
Secretary of State Condoleezza Rice has
reportedly distributed a memo to all U.S.
embassies in OSCE member states instruct-
ing diplomats to resist Kazakhstan’s presiden-
tial aspirations. Because the OSCE makes
decisions on a consensus basis, the U.S. posi-
tion may affect the final decision on this mat-
ter. Parliament will give a second reading of
the bill in November before a final decision
is made.
Status of Kosovo May Be Delayed
After G17 Plus, a crucial party in Serbia’s
minority coalition, resigned its cabinet posts
over suspended EU talks, UN mediator
Martti Ahtisaari announced that a possible
Serbian parliamentary election in December
may result in the delayed submission of a pro-
posal settling Kosovo’s status. With a popula-
tion of about two million people, approxi-
mately 90 percent of whom are Albanians,
Kosovo has remained a province of the
Republic of Serbia since 1999 when a NATO
bombing campaign forced out Serbian troops
engaged in ethnic cleansing against Albanian
Kosovars. Under a 1999 UN Security Council
Resolution, Kosovo is governed by the UN
Interim Administration in Kosovo. Ahtisaari,
a former Finnish president appointed UN
mediator by the Secretary-General in 2005,
was due to deliver a proposal on the future
political status of Kosovo by November. This
delay comes just weeks after Ahtisaari’s
September 20 announcement that Kosovo’s
status would be determined by the end of
2006, winning him praise from western lead-
ers, including the six-member Contact Group
— the United States, United Kingdom,
France, Germany, Italy, and Russia — a group
of states with an interest in the Balkans that
was created in response to the 1990s Bosnia
crisis. It is widely believed that Ahtisaari will
recommend some form of EU-policed inde-
pendence for the region; however, any such
plan should include strong mechanisms to
enforce rights for the Serbian minority living
in Kosovo.
Albanian leaders in Kosovo pleaded
against postponing a decision until after pro-
posed elections, asserting that Serbia’s election
results must not “have any impact on the
process.” Hajredin Kuci, a senior party mem-
ber of the Popular Opposition Party of
Kosovo, warned that “[t]he credibility of the
negotiations and the negotiators themselves
would be lost” if a decision was delayed. The
UN Governor in Kosovo, who felt that an
early decision was essential given the tense sit-
uation, echoed this view. A delay may initiate
violence in Kosovo, which is patrolled by
16,000 NATO-led troops. Attacks in
September alone included a bombing in
Shtuple Village, several car bombings —
including that of the Minister of Internal
Affairs — and a brutal attack on a returning
Serbian family. The UN High Commissioner
for Refugees notes that this attack was the
third against returning Serb refugees in a
short period.
The UN Secretary-General appointed
Ahtisaari in October 2005 in response to eth-
nic unrest in Kosovo during the spring of
2004. He acts as a special envoy, supervising
communication between the Serbian govern-
ment and the Kosovo Provisional Institution
of Self-Government in order to resolve
Kosovo’s final status. Ahtisaari has refused to
comment on his pending recommendations
for the region but, once made, diplomats say
that weeks if not months could pass before
they are put to a Security Council vote.
Russian Journalist Killed
On October 7 Russian journalist Anna
Politkovskaya was found dead in her apart-
ment building with a gunshot wound to the
head. Politkovskaya was a special correspon-
dent for Russia’s Novaya Gazeta and a leading
Russian human rights advocate. In a country
with tightly controlled media, Politkovskaya
gained international recognition for her
criticism of President Vladimir Putin and the
prolonged war in Chechnya. She had been
working on an article about torture commit-
ted by the Pro-Kremlin Chechen government,
including allegations that its leader Ramzan
Kadyrov had participated in at least one
torturous act.
35
Politkovskaya’s friends and colleagues
speculate that her killing was politically moti-
vated. Deputy Editor of Novaya Gazeta Vitaly
Yaroshevsky said that the Makarov 9-millime-
ter pistol found by her side is “the signature of
a contract killing” and that he was certain her
murder was a result of her journalism.
According to the Committee to Protect
Journalists, 12 journalists have been killed
in contract-style assassinations in Russia
since 2000.
Putin’s slow response was criticized within
Russia and abroad. After two days of silence,
he responded, calling her killing “an appalling
crime” that “cannot go unpunished.” He went
on to say that he thought her “capacity to
influence political life in Russia was severely
insignificant,” sparking outrage from journal-
ists and activists who point to the amount of
international news coverage her death has
brought. A U.S. Department of State
spokesman urged the Russian government to
conduct an “immediate and thorough investi-
gation” and bring those responsible to justice.
Over a thousand mourners came to
Troyekurovskoye cemetery for Politkovskaya’s
funeral. Former Soviet president Mikhail
Gorbachev described her death as a blow to
the entire democratic press, “a crime against
the country, against all of us.”
Asia
Philippine NGOs Condemn
Government Response to
Extrajudicial Killings
Representatives of Philippine nongovern-
mental organizations (NGOs) attended the
Second Session of the United Nations Human
Rights Council (UNHRC) from September
18 to October 6, 2006. During the session
they highlighted the deteriorating state of
human rights violations in the Philippines,
which could lead to suspension of the coun-
try’s UNHRC membership, as well as the
reduction of foreign aid from the internation-
al donor community. The delegates con-
demned the following statement made by the
Philippine government under President
Gloria Macapagal Arroyo: “There is a need to
distinguish between actions of state agents
made in the course of their duties and com-
mon crimes or those committed for personal
ends. It should be only after proper court trial
that certain offenses are classified conclusively
as human rights violations.”
 The delegation of Philippine NGOs,
including leaders from the Alliance for the
Advancement of Peoples’ Rights, Counsels for
the Defense of Liberties, and the National
Peasant Movement, considered this an
attempt to conceal government culpability
and deny the continuing reality of extrajudi-
cial executions that have gone on in the coun-
try for years. Before appealing to the
UNHRC, members of the delegation had
exhausted all legal remedies to address human
rights violations in the Philippines.
Latest NGO reports document that the
Arroyo military, police, and paramilitary forces
have committed 755 summary executions and
184 enforced disappearances, in addition to
torture, food blockades, and forced evacuation
of villages. Politically motivated extrajudicial
killings, few of which have been successfully
investigated, have targeted human rights advo-
cates, journalists, lawyers, and church work-
ers. According to the Committee to Protect
Journalists, 22 journalists have been murdered
for their work in the past five years, making
the Philippines one of the most dangerous
countries to practice journalism.
At the UNHRC session, the Working
Group on Enforced or Involuntary
Disappearances criticized the Philippine gov-
ernment for having hundreds of outstanding
disappearance cases. Tasked with ensuring
that all member states of the UN comply with
human rights obligations under the Universal
Declaration of Human Rights and other doc-
uments, the UNHRC could vote to suspend
the membership of the Philippines in the
UNHRC and the Economic and Social
Council (ECOSOC) for gross and systematic
violations of human rights. Already, the
UNHRC has instructed the Philippine gov-
ernment to reply to several questions on its
poor compliance with the International
Covenant on Civil and Political Rights, which
it ratified in 1986 without reservations. The
Philippine government has been out of com-
pliance with UN laws requiring the submis-
sion of human rights reports since 1992.
In response, President Arroyo appointed a
new commission headed by retired General
Jovito Palparan to investigate extrajudicial
executions. Prior to his appointment, soldiers
under his command allegedly committed
hundreds of summary killings and kidnap-
pings of civilians; subsequently, there is public
distrust regarding the effectiveness of his
investigation. In May 2005 the Reality of Aid
Network, an international nongovernmental
initiative, called for the cessation of all military
aid to the Philippines on account of various placed by the conflicts. Human rights and
human rights abuses, with particular regard to humanitarian aid organizations have appealed
extrajudicial killings. to international government leaders, such as
the United States and Japan, to withhold
Sri Lanka: Mounting Civilian major reconstruction aid from the 2004
Death and Displacement tsunami until the parties return to negotia-
tions and respect their obligations under
Since July more than 1,000 civilians have
international humanitarian law. Human
been killed and 220,000 internally displaced
rights organizations have also appealed to the
as a result of the continued violent conflict
Sri Lankan government and the LTTE to
between the Sri Lankan government and the
accept a UN human rights monitoring mis-
Liberation Tigers of Tamil Eelam (LTTE).
sion in Sri Lanka and to adopt specific meas-
The LTTE, also known as the Tamil Rebels, is
ures to protect the civilian population. The
a political-military organization that initiated
government has not responded but has noted
armed uprisings against the Sri Lankan gov-
the existence of ongoing efforts to end the
ernment in the 1970s, citing discrimination
violence. Even so, harassment of civilians con-
by the Sinhalese majority and demanding
tinues to worsen.
autonomy for Tamils in northern and eastern
Sri Lanka where they comprise the majority.
The LTTE is known for committing human Thailand: Human Rights
rights abuses, including child soldier recruit- Implications of the Coup
ment and mass assassination. More than Thai military officers opposing the
60,000 people have died in the past three administration of Prime Minister Thaksin
decades as a result of the civil war. Shinawatra took over government institutions
in Bangkok on September 19, pledging to
By risking civilian lives, creating a refugee
reform the government and fight corruption.
crisis, denying access to food, and blocking
In a public announcement, coup leaders sus-
international monitor and aid worker entry
pended Thailand’s constitution, parliament,
into conflict areas, both the government and
and senate, and instituted an interim consti-
the LTTE stand accused of violating a cease-
tution that gives coup leaders significant pow-
fire agreement signed in 2002. In 2004 vio-
ers over the new interim administration.
lence resumed with a suicide bomb blast in
Following the coup, Thaksin withdrew as
Colombo, and the fragile peace process came
head of the Thai Rak Thai (TRT) party, sig-
to an end. Talks between the government and
naling the collapse of a political machine that
the LTTE in Geneva in February 2006
had dominated the country for the last five
devolved into an argument about ceasefire
years. Over 70 TRT members of parliament
violations. The LTTE pulled out of the talks
resigned after the military accused Thaksin and
in April amid a marked escalation in deadly
his cabinet of corrupt leadership. The military
violence. Large-scale hostilities broke out in
council appointed retired army commander
July after government troops attempted to
General Surayud Chulanont interim prime
reopen an irrigation canal in the Jaffna
minister. Under the council’s plan, Surayud
Peninsula blocked by the LTTE. The worsen-
will hold office during the yearlong drafting
ing bloodshed comes amidst renewed efforts
of a new constitution and until a parliamen-
to arrange peace talks — which will be bro-
tary election to restore democracy.
kered by Norway in November — between
the government and the LTTE. Both parties At the time of the coup, the military was
have agreed to unconditional talks, but many split between officers supporting or opposing
believe the LTTE only agreed in order to Thaksin. During Thaksin’s five years in power
regroup after a series of recent military he put loyalists in control of almost every sec-
defeats. tor of government and in every region of the
country. The TRT had evolved into a pro-
The Sri Lankan armed forces have
business, pro-privatization, and pro-foreign
engaged in indiscriminate shooting, aerial
investment party that pushed for free trade
bombing, and massive abductions of civilians.
deals with Japan and the United States despite
The military is allegedly responsible for the
vocal opposition from social groups and
execution-style massacre of 17 Sri Lankan aid
unions. Thaksin launched a “war on drugs” in
workers in August, though investigations into
2003 that resulted in more than 2,000 extra-
these killings have so far been inconclusive.
judicial executions of alleged drug dealers
Since July, international aid agencies have who had never been properly investigated.
spent millions of dollars assisting those dis- His forces responded to an insurgency in the
36
country’s mostly Muslim southern provinces
by committing widespread human rights vio-
lations, including arbitrary arrests and disap-
pearances. His crackdown on the country’s
media and political dissenters led to massive
political opposition and crisis.
Nonetheless, the United Nations, govern-
ments such as the United States, and human
rights organizations have criticized the coup
as a setback for elected leaders and urged
democratic reform in Thailand. There is con-
cern that installing a former army command-
er as prime minister could allow generals to
maintain control of the government. The
interim constitution empowers the coup lead-
ers to remove the interim prime minister and
cabinet members and to select a committee to
draft a permanent constitution. It sidelines
political parties and bans public assembly and
freedom of speech; for example, the coup
leaders prohibited political gatherings of more
than five people, and violators are subject to
six-months imprisonment.
A small anti-coup movement has begun,
largely among students. A group of civil soci-
ety organizations urged the military council to
withdraw its restrictions on free assembly and
free press, to restore the Constitution — par-
ticularly its articles on civil rights — and to
appoint officials who are free of corruption
and have no ties to the Thaksin government.
Though the previous 1997 Constitution
was flawed, it was drafted by a democratically
elected assembly and included the participa-
tion of numerous independent civic groups to
highlight public interests and monitor
progress after the charter was enacted. It con-
tained a wide range of human rights provi-
sions and protections, whereas the new inter-
im constitution only vaguely addresses the
protection of human rights. The Asian
Human Rights Commission released a state-
ment in September emphasizing that human
rights are not upheld by military dictatorships
and coups, even where a previous government
has violated provisions of the constitution.
HRB
Natalie Huls, a J.D. candidate at the Washington
College of Law, covers Latin America for the Human
Rights Brief.
Art Steele, a J.D. candidate at the Washington College
of Law, covers Africa for the Human Rights Brief.
Huwaida Arraf, a J.D. candidate at the Washington
College of Law, covers the Middle East for the
Human Rights Brief.
Courtney Nicolaisen, a J.D. candidate at the
Washington College of Law, covers Eastern Europe
and Central Asia for the Human Rights Brief.
Miya Saika Chen, a J.D. candidate at the
Washington College of Law, covers Asia for the
Human Rights Brief.

ENDNOTES: A Developing Trend continued from page 12

33 Brookings Institution-University of Bern Project on Internal Displacement,
p. 18. (Also presented as Annual Report of the Representative for the Secretary-
General on Human Rights of Internally Displaced Persons, U.N. Doc.
E/CN.4/2006/71).
34 The Law of the Azerbaijan Republic “On social protection of forcibly
displaced persons and persons equated to them,” No. 669-1Q (1999).
35 The Law of Georgia on Forcibly Displaced Persons–Persecuted Persons,
Article 8(2) (1996), cited in Cohen, Kälin and Mooney, The Guiding
Principles on Internal Displacement and the Law of the South Caucasus at 139.
36 National Policy for Internally Displaced Persons [of Uganda], Article
2.3.1 (2004).
37 Relief Program for Internally Displaced People Due to Conflict for FY
2004/05 [of Nepal], § 11 (2004).
38 Protection of Internally Displaced Persons in Situations of Natural Disaster: A
Working Visit to Asia by the Representative of the United Nations Secretary-Gen-
eral on the Human Rights of Internally Displaced Persons, Walter Kälin, 27 Feb-
ruary to 5 March 2005, available at http://www.ohchr.org/english/issues/idp/
Tsunami.pdf.
39 Id., at 20-21.
40 Norms on the Resettlement of the Internally Displaced Populations,
Decree Number 1/01 [of Angola] Article 9(1)(c), Article 14(2)(a) (2001).
41 Walter Kälin, Specific Groups and Individuals: Mass Exoduses and Dis-
placed Persons: Report of the Representative of the Secretary-General on the
Human Rights of Internally Displaced Persons, ¶ 84, U.N. Doc.
E/CN.4/2005/84, (Dec. 31, 2004).
42 The Brookings-Bern Project on Internal Displacement, http://www.brook-
ings.edu/idp (accessed Oct. 13, 2006).

ENDNOTES: Advancing the Right continued from page 16

25 See id. at paras 56 & 61. 31 Id. at para 64.
26 See id. at para 26. 32 Id.
27 See Government of the Republic of South Africa and Others v. Grootboom and 33 General Comment No 4 (right to adequate housing) 13/12/91,
Others [hereinafter Grootboom], 2001 (1) SA 46 (CC). This case concerned the UN doc E/1992/23, para 8.
plight of a homeless community who were evicted from the land they had unlaw- 34 Rand Properties, at para 66.
fully occupied. The Constitutional Court found the state’s housing program to
be unreasonable as it did not cater to those in desperate need of housing, such as
the unlawful occupiers in the case.
28 See id. at para 44.
29 Rand Properties at paras 42-47. See also National Department of Housing,
National Housing Programme: Housing Assistance in Emergency Circumstances,
April 2004, available at http://www.housing.gov.za/Content/legislation_poli-
cies/_Emergency%20%20Housing%20Policy.pdf (accessed June 19, 2006).
30 Id. at para 67(1).

37
 UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS
International Criminal Tribunal
for the Former Yugoslavia
On September 27, 2006, tribunal judges
at the International Criminal Tribunal for the
Former Yugoslavia (ICTY) sentenced
Momailo Krajisnik to 27 years imprisonment.
Krajisnik, a former Bosnian-Serb leader, was
convicted of persecutions, murder, extermina-
tion, deportation, and forced transfer of non-
Serb civilians. After establishing the existence
of a joint criminal enterprise intended to
reduce the proportion of Bosnian Muslims
and Bosnian Croats, the judges found that
Krajisnik’s role in the crimes was “crucial”
because of his senior position. The Trial
Chamber acquitted Krajisnik of genocide,
complicity in genocide, and one count of
murder as a violation of the laws or customs
of war, noting that he did not have the specif-
ic intent necessary for genocide.
On May 3, 2006, the ICTY Appeals
Chamber affirmed the sentences for Mladen
Nalelitic (“Tuta”), and Vinko Martinovic
(“Stela”). Naletilic was found guilty on eight
counts of crimes against humanity and war
crimes and Martinovic was found guilty on
nine counts of crimes against humanity. The
judges dismissed most of the appeals pertain-
ing to issues of due process, evidence, and
crimes involved in the trial of the two Bosnian
Croats. The Chamber found that, given the
particular circumstances of the case and the
defendants’ degree of participation, the sen-
tences of 20 and 18 years’ imprisonment were
reasonable. Both men had served as military
commanders in the Mostar region of Croatia
between April 1993 and January 1994.
On June 30, 2006, the ICTY Trial
Chamber sentenced Naser Oric, former sen-
ior commander of Bosnian Muslim forces, to
two years’ imprisonment. Oric was convicted
for failing to exercise command responsibility
to prevent the murder and cruel treatment of
numerous Serb prisoners in the former UN
“safe area.” ICTY judges described the condi-
tions in and around Srebrenica, Oric’s
perimeter of command, at the time of the
crimes in 1992 and 1993 as more abysmal
than any other case before the Tribunal. The
judges convicted Oric because he had reason to
know about the murders and cruel treatment
but failed to take “necessary and reasonable
measures” to prevent their occurrence.
The month of July brought with it two new
trials for the ICTY. In Popovic, et al., seven sen-
ior Bosnian Serb military and police officers
will face charges of genocide and various crimes
against humanity for acts committed in
Srebrenica. In Milutinovic, et al. the Tribunal
will try six former high-level political and mil-
itary leaders of Serbia and the Federal Republic
of Yugoslavia (FRY), charged with alleged
crimes committed in Kosovo during 1999.
International Criminal
Tribunal for Rwanda
The International Criminal Tribunal for
Rwanda (ICTR) Appeals Chamber delivered
a landmark decision on June 16, 2006, in the
case of Prosecutor v. Karemera, Ngirumpatse
and Nzirorera. The opinion recognized that
genocide occurred in Rwanda during the peri-
od of April 6 to July 17, 1994 — holding that
the genocide is now a matter of “common
knowledge.” This opinion has now indis-
putably established Rwanda’s genocide in the
ICTR’s jurisprudence. The Karemera decision
is significant because it removes the require-
ment of proving genocide in every case,
silencing the rejectionist camp. The decision
will have a significant impact on future defen-
dants accused of genocide by eliminating the
perpetual relitigation of the established histor-
ical fact of Rwanda’s genocide.
On September 12, 2006, Trial Chamber I
acquitted Jean Mpambara, former mayor of
the Rukara commune in Rwanda. Mpambara
was accused of planning, directing and facili-
tating attacks against Tutsi civilians. The
Chamber held that the prosecution failed to
prove the charges beyond a reasonable doubt.
In acquitting Mpambara, Judge Jai Ram
Reddy said that the evidence establishing his
instigation and assistance in the attacks was
not credible. Further, the Chamber held that
on occasion Mpambara’s inaction was due to
a lack of resources for an effective defense
against the attackers. Residents of the former
Rukara commune have expressed disappoint-
ment over the acquittal.
In another ruling the same week, the ICTR
sentenced Tharcisse Muvunyi to 25 years for
genocide, direct and public incitement to com-
mit genocide, and rape as a crime against
humanity. Muvunyi was a former commander
38
of Ecole Sous-Officiers (ESO), a military acad-
emy in Butare, southern Rwanda. Soldiers
under Muvunyi’s command attacked between
800 and 5,000 Tutsi refugees in the Mukura
Forest in April 1994. The court held that
Muvunyi failed to use his authority to prevent
his soldiers from participating in the genocide.
Finally, former education minister André
Rwamakuba was unanimously acquitted on
September 20, 2006, and immediately
released. Rwamakuba had been charged with
conspiracy to commit genocide, incitement of
or complicity to commit genocide, as well as
several crimes against humanity, serious viola-
tions of Common Article 3 to the Geneva
Conventions, and violations of Additional
Protocol II. The Chamber found that testi-
mony demonstrated that Rwamakuba was not
present at the time and location of the alleged
events. Additionally, some of the prosecution’s
evidence was based on hearsay; hence, the
prosecution did not meet its burden to prove
the charges beyond a reasonable doubt.
In a related development, on September
18, 2006, the ICTR accepted the resignation
of Callixte Gakwaya, a defence attorney at the
ICTR accused of having participated in the
genocide. Previously, Rwanda had shown
concern over Gakawaya’s involvement in the
ICTR, and threatened to cease cooperation
with the court unless he was fired. Gakwaya is
listed as one of 12 genocide suspects
employed at the ICTR. According to the
ICTR, only two of these suspects are still
employed and they are both currently under
investigation.
Sylvestre Gacumbitsi v.
The Prosecutor,
Case No. ICTR-2001-64-A
On July 6, 2006, the Appeals Chamber of
the International Criminal Tribunal for
Rwanda (ICTR) delivered its judgment in the
case of Sylvestre Gacumbitsi v. Prosecutor. From
1983 through 1994 Sylvestre Gacumbitsi
served as the highest-ranking local administra-
tive official, or bourgmestre, of Rusumo
Commune. On June 17, 2004, ICTR Trial
Chamber III found Gacumbitsi guilty of geno-
cide and the crimes of humanity of extermina-
tion and rape due to his role in organizing and
executing a campaign against the Tutsi popula-
tion in Rusumo Commune in April 1994.
Gacumbitsi received a thirty-year sentence.
Both Gacumbitsi and the Prosecutor
appealed the conviction. The Appeals
Chamber dismissed all of Gacumbitsi’s
grounds of appeal. It granted the Prosecutor’s
appeal in part, finding Gacumbitsi guilty of
aiding and abetting the murder (as a crime
against humanity) of two of his female Tutsi
tenants. Additionally, while the Trial
Chamber held that Gacumbitsi’s authority for
ordering the crimes committed in Nyarubuye
Parish on April 15, 16, and 17 and in
Kigarama on April 14 was limited to the com-
munal police, the Appeals Chamber found
that it also extended to several other groups of
attackers. Based on these additional findings,
the Appeals Chamber quashed the Trial
Chamber’s thirty-year sentence and imposed a
new life sentence.
Gacumbitsi’s Appeal:
“Committing” Genocide
The Trial Chamber convicted Gacumbitsi
of planning, instigating, ordering, commit-
ting, and aiding and abetting the crime of
genocide pursuant to Article 6(1) of the
Statute of the ICTR. In claiming that his con-
viction for “committing” genocide was based
in errors of both law and fact, Gacumbitsi
argued, inter alia, that the indictment did not
allege his personal participation in the killing
of Murefu, a Tutsi refugee, with sufficient
specificity. Because the indictment merely
alleged as a general matter that Gacumbitsi
was responsible for killing “members of the
Tutsi population,” the Appeals Chamber
found that Gacumbitsi could not have reason-
ably known on this basis alone that he was
being charged with killing Murefu.
Nevertheless, the Appeals Chamber found
that a witness statement disclosed before trial
provided “timely, clear, and consistent infor-
mation” about the time, place, and manner of
the killing and thus, sufficiently cured the
defective indictment.
Presiding Judge Shahabuddeen wrote sep-
arately to argue that the Appeals Chamber
imposed “too formulaic” pleading require-
ments on the Prosecution and should not
have found the indictment defective with
respect to the killing of Murefu because the
crime of genocide does not require the plead-
ing of every individual killing. Judge
Shahabudeen stressed the distinction between
material facts necessary to establish an offense
and the evidence offered to prove those facts,
remarking that:
The material facts must be pleaded, the
evidence need not. When an indict-
ment alleges genocide, proof of any one
killing is not a material fact as it would
be in the case of murder; it is evidence
of a material fact, namely that the
intent of the accused was the destruc-
tion of a group, as a group.
In contrast, Judges Liu and Meron wrote
separately to argue that the Chamber had
been too lenient in finding that a “vague
chart-entry summarizing the anticipated testi-
mony of one witness” cured the indictment.
Notably, the Appeals Chamber deter-
mined that even if the killing of Murefu was
set aside, the Trial Chamber’s conclusion that
Gacumbitsi “committed” genocide would still
be valid. This decision was based on witness
allegations that Gacumbitsi arrived at a
church in Nyarubuye Parish with a pick-up
truck full of machetes, ordered the Hutus to
separate from the Tutsis, and instructed the
Hutus and Interahamwe: “Get machetes! Start
killing and surround the church so no one
escapes.” From these facts, the Appeals
Chamber concluded that Gacumbitsi “direct-
ed” and “played a leading role in conducting
and especially, supervising” the Nyarubuye
massacre and that Gacumbitsi’s act of separat-
ing the crowd was as much an integral part of
the genocide as were the killings that it
enabled. The Appeals Chamber thus deter-
mined that Gacumbitsi’s conviction was
appropriately characterized to include his
“commission” of genocide. To this end, the
Appeals Chamber held that in the context of
genocide, “direct and physical perpetration”
need not mean physical killing — other acts,
such as directing or supervising killings, can
constitute the actus reus of the crime.
Prosecutor’s Appeal: Murder As a
Crime Against Humanity
The Prosecutor appealed Gacumbitsi’s
acquittal for the murder as a crime against
humanity of Marie and Beatrice, two of his
Tutsi tenants. The Prosecutor advanced the
theory that Gacumbitsi aided and abetted
their murder, a mode of responsibility not
considered by the Trial Chamber. The Appeals
Chamber found that the Trial Chamber
entered sufficient findings of fact to support a
conviction under this theory of liability,
including that Gacumbitsi expelled the
women from his home in the context of the
genocidal campaign in which he was involved,
that he knew expelling them under these cir-
cumstances would expose them to the risk of
being attacked on the grounds of their ethnic-
39
ity, and that they were subsequently killed.
The language of the indictment was suffi-
ciently clear for the Appeals Chamber to find
that the accused had ample timely notice of
this charge. The Appeals Chamber therefore
entered a new conviction for aiding and abet-
ting the crime against humanity of murder.
Prosecutor’s Appeal: Rape As a
Crime Against Humanity
The Trial Chamber convicted Gacumbitsi
for eight counts of rape. However, it acquitted
him on three additional counts after finding
insufficient evidence to demonstrate that
Gacumbitsi had instigated the crimes. The
Prosecutor argued that the Trial Chamber
“erred in law by requiring it to establish that
the Appellant’s instigation was a condition sin
qua non of the commission of the rapes” and
that it should have convicted Gacumbitsi on
this basis, or in the alternative, for his Article
6(3) superior responsibility for the perpetrators.
The Appeals Chamber found that the
Trial Chamber had applied the correct legal
standard, noting that to convict someone of
instigation it is sufficient for the Prosecution
to demonstrate that “the instigation was a fac-
tor substantially contributing to the conduct
of another person committing the crime,” and
that “it is not necessary to prove the crime
would not have been perpetrated without the
involvement of the accused.” Moreover,
despite the Trial Chamber’s findings that
Gacumbitsi drove around Nyarubuye Parish
with a megaphone inciting Hutu men to rape
and kill Tutsis and that a victim claimed one
of her rapists told her Gacumbitsi had ordered
the rape of Tutsi females, the Appeals
Chamber held that the Prosecution did not
prove the presence of a nexus between the
instigation and the rapes beyond a reasonable
doubt. In making this determination, the
Appeals Chamber cited a lack of credible wit-
ness testimony and a lack of evidence that
Gacumbitsi’s words substantially contributed
the three rapes, noting in particular that the
Prosecutor did not establish the perpetrators’
awareness of Gacumbitsi’s inciting statements.
Nevertheless, the Appeals Chamber agreed
with the Prosecutor that the Trial Chamber
had a duty to consider in the alternative
whether Gacumbitsi had Article 6(3) superior
responsibility for these rapes. The Trial
Chamber did not make any formal legal find-
ing on this question, stating that it did not
“deem it necessary to enquire whether
[Gacumbitsi] is equally responsible pursuant
to Article 6(3) … given the similarity of the
acts charged and the lack [of ] evidence of a
superior-subordinate relationship between the
Accused and the perpetrators of the rapes.”
After looking at the relevant evidence, the
Appeals Chamber agreed with the Trial
Chamber that the Prosecution failed to offer
sufficiently specific facts demonstrating
Gacumbitsi’s effective control over the perpe-
trators of the rapes in question, and therefore
denied the Prosecution’s appeal on this count.
The Prosecution also sought general clari-
fication on the elements of rape as a crime
against humanity. The Prosecution argued
that in such a context, non-consent of the vic-
tim and the perpetrator’s knowledge of that
non-consent should not be considered ele-
ments of the offense to be proved, but rather
that consent should be considered an affirma-
tive defense. The Prosecutor reasoned that
when prosecuted at the ICTR, rape will
always take place in the context of genocide,
crimes against humanity, or war crimes. There
should therefore be no need to prove the
absence of consent, as is the case with other
crimes in the statute such as torture. The
Appeals Chamber reiterated the definition of
the rape as a crime against humanity provided
by the ICTY Appeals Chamber in the
Kunarac et al. judgment, and found that it
established non-consent and knowledge there-
of as elements that the Prosecution must prove
beyond a reasonable doubt. However, to prove
the element of non-consent, the Prosecution
need not provide evidence of the victim’s
words or conduct, or evidence of force, but
need only demonstrate the existence of coer-
cive circumstances under which meaningful
consent is not possible, i.e., the existence of a
genocidal campaign or a situation of deten-
tion. Further, the Prosecution can establish
knowledge of non-consent by proving the
accused was aware, or had reason to be aware,
of the coercive circumstances that undermined
the possibility of genuine consent.
To rebut an allegation of non-consent, the
accused may enter evidence that the victim
consented, but such evidence is inadmissible
pursuant to Rule 96(ii) if the victim “has been
subjected to or threatened with or has reason
to fear violence, duress, detention, or psycho-
logical oppression,” or “reasonably believed
that if [one] did not submit, another might be
so subjected, threatened, or put in fear.”
Moreover, the Trial Chamber is free to disre-
gard evidence of consent if it concludes that
consent cannot be given voluntarily under the
circumstances.
Prosecutor’s Appeal:
Joint Criminal Enterprise
The Prosecution also argued Gacumbitsi
should have been found responsible for his
crimes under the theory of joint criminal
enterprise (JCE). The Appeals Chamber dis-
agreed, citing the ICTY appeal judgment in
Kvocka and holding that the Prosecutor’s fail-
ure to plead the category of JCE alleged and
the supporting material facts in the indictment
constituted a defect that neither the
Prosecutor’s pre-trial brief nor its opening
statement cured. In a separate opinion, Judge
Shahabuddeen argued that the Prosecutor had
provided the requisite notice. In his view,
although the words “joint criminal enterprise”
were not used in the indictment, the use of
terms such as “acting in concert with others” in
pursuit of a “common purpose” meaningfully
informed Gacumbitsi of the JCE charge and
enabled him to prepare an effective defense.
Prosecutor’s Appeal:
Authority for Ordering
In its judgment, the Trial Chamber found
that Gacumbitsi ordered the crimes commit-
ted by the communal policemen in his com-
mune, but that he did not have the authority
to order the crimes committed there by the
conseillers, gendarmes, soldiers, and
Interahamwe. The Prosecution appealed this
finding, alleging both an error of fact and an
error of law. The Appeals Chamber found
that the Trial Chamber correctly defined
“ordering” to take place when someone in a
position of authority instructs another to
commit an offense. Moreover, “[n]o formal
superior-subordinate relationship between the
accused and the perpetrator is required. It is
sufficient that there is proof of some position
of authority on the part of the accused that
would compel another to commit a crime in
following the accused’s order.”
Although it upheld the Trial Chamber’s
citation of the relevant law, the Appeals
Chamber found error with the Trial
Chamber’s characterization of the relevant
facts. Specifically, it recalled the Trial
Chamber’s finding that as bourgmestre,
Gacumbitsi was the “highest authority and
most influential person on the commune,
with the power to take legal measures binding
all residents.” The Appeals Chamber then
pointed to four consecutive days in April of
1994 where the Trial Chamber found that
Gacumbitsi “instructed,” “ordered,” or
“directed” groups of assailants — not just the
communal policemen — to attack many Tutsi
40
civilians. For example, the Trial Chamber
found that in Nyarubuye parish on April 16,
1994, Gacumbitsi “directed” an attack during
which a group of assailants killed survivors
and looted the parish building. According to
the Appeals Chamber, these findings proved
Gacumbitsi’s authority over all the attackers
in question and that his orders had a substan-
tial and direct effect on the commission of
those crimes. It consequently upheld this sub-
ground of the Prosecutor’s appeal.
Prosecutor’s Appeal: Sentencing
The Prosecution alleged that the Trial
Chamber erred in failing to impose a sentence
reflecting the gravity of the crimes and
Gacumbitsi’s degree of criminal culpability.
While the Appeals Chamber held that the
Trial Chamber properly stated the relevant
sentencing principles, it argued that those
principles were applied incorrectly. The
Appeals Chamber noted that “Gacumbitsi
played a central role in planning, instigating,
ordering, committing, and aiding and abet-
ting genocide and extermination in his com-
mune of Rusumo, where thousands of Tutsis
were killed or seriously harmed.” Citing
Gacumbitsi’s instigation of particularly sadis-
tic rapes, the absence of significant mitigating
circumstances, and its findings on appeal, the
Appeals Chamber quashed Gacumbitsi’s thir-
ty-year prison sentence and imposed a life
sentence in its place.
International
Criminal Court
The Prosecutor v. Thomas Lubang
Dyilo, Case No. ICC-01/04-01/06
The International Criminal Court’s (ICC)
first trial entered the pre-trial phase, but
is encountering some difficulty. Chief
Prosecutor Luis Moreno-Ocampo brought
charges against Thomas Lubanga Dyilo of the
Democratic Republic of the Congo (DRC)
for crimes committed in his capacity as
founder and leader of the Union of Congolese
Patriots (UPC) and its military wing, the
Patriotic Forces for the Liberation of the
Congo (FPLC). The ICC investigation com-
menced in June 2004, two months after the
DRC government referred the situation to the
Court. Early in 2005 the government arrested
Lubanga on charges of genocide, crimes
against humanity, and war crimes. In March
2006 the ICC issued an arrest warrant charg-
ing Lubanga with the war crimes of enlisting,
conscripting, and using children to partici-
pate in active hostilities. The DRC govern-
ment immediately transferred Lubanga to
ICC custody in the Hague. Several days later,
he appeared before Pre-Trial Chamber I for
initial proceedings.
The confirmation hearing, in which the
Pre-Trial Chamber seeks to confirm whether
there is sufficient evidence for the Prosecutor
to conduct a trial, was originally scheduled for
June 2006. The Court postponed the hearings
until September due to escalating violence in
Ituri, the site of Lubanga’s alleged crimes. The
Prosecutor delayed full disclosure of evidence
to the defense, due partially to the escalating
violence and in the interest of protecting vic-
tims and witnesses. In September the defense
team requested more time to analyze the
recently disclosed evidence and prepare a rele-
vant defense. The Prosecutor requested a time
extension as well. The Court subsequently
announced that the confirmation hearing
would take place on November 9, 2006.
The Court reached an impasse in June
when the Prosecutor announced that, due to
the violence in Ituri, he would temporarily
stop the investigation. Thus, the charging
document only accuses Lubanga of enlist-
ment, conscription, and use of child soldiers;
the Prosecutor decided that he would not add
or amend other charges. While the conscrip-
tion and recruitment of child soldiers in many
ways facilitated these crimes, the fact remains
that in the past six years, 60,000 people have
been slaughtered in Ituri alone (according to
United Nations estimates). The UPC/FPLC
and other parties to the conflict committed
mass murder, rape, and torture, crimes not
addressed in Lubanga’s charges. According to
the most recent Report on Prosecutorial
Strategy, in the interest of expediency, the
Prosecutor may have decided to select a limit-
ed number of incidents for the arrest war-
rants; however, he has also committed to
ensuring that those incidents will reflect the
gravity of the accused’s crimes. Many non-
governmental organizations (NGOs) contend
that by excluding grave crimes such as sexual
violence, rape, willful killings, and summary
executions, the Court is sending the message
that perpetrators of those crimes will go
unpunished. Impunity for gender crimes is
considered especially troublesome.
The Prosecutor also faces increasing pres-
sure to issue arrest warrants for members of
other parties to the conflict. The conflict
between the Hema ethnic group, represented
by Lubanga’s FPLC forces, and the Lendu
ethnic group, represented by Floribert Njabu’s
Front for National Integration forces, spread
and became integrated into the larger region-
al conflict, and thus has many parties. Since
the Office of the Prosecutor (OTP) suspend-
ed its investigation in the DRC due to securi-
ty threats, Lubanga is the only individual that
has been charged.
Update on the Uganda Situation
A year after the ICC unsealed its first
arrest warrants, there have still been no arrests
in Uganda. The Prosecutor, in his most recent
report on Uganda, identified executing arrest
warrants as one of the central challenges fac-
ing the Court. In September, Pre-Trial
Chamber II requested that the Prosecutor
submit a report on the status of arrests in
Uganda, and the court reviewed the report in
early October. One of the most significant
setbacks occurred in July 2006, when Joseph
Kony, indicted leader of the Lord’s Resistance
Army (LRA), initiated peace talks with the
government of Uganda. Kony proposed an
end to hostilities in exchange for amnesty to
all LRA combatants. The government granted
his request and signed the Cessation of
Hostilities Agreement with the LRA on
August 26. The amnesties have raised the
question whether, in the interest of peace, the
ICC should withdraw the arrest warrants.
This is particularly relevant because Kony has
refused to appear in public to advance the
peace talks unless the ICC drops all charges
against the LRA.
NGOs have campaigned on both sides of
the issue in a debate commentators have
termed “Peace vs. Justice.” Proponents of an
ICC withdrawal point to the merits of the tra-
ditional Acholi justice mechanism, which
involves public ceremonies of confession and
forgiveness, because it affords victims person-
alized truth and reconciliation. Many fear that
if the ICC moves forward with the arrests, the
LRA will abandon the peace talks and resume
the violence. Groups advocating for the ICC
to continue its investigation (including the
ICC itself ) invoke international law, which
disallows amnesties for the grave crimes under
investigation. In the past, exchanging amnesty
for peace agreements has not been successful.
For example, the amnesty of Sierra Leone
rebel leader Foday Sankoh backfired and
plunged the parties into deeper conflict.
Furthermore, States Parties to the ICC (of
which Uganda is one) are not permitted to
renege on their referral of a situation to the
ICC. Traditional Acholi justice mechanisms
41
also conflict with the traditions of non-Acholi
groups similarly affected by the conflict.
The Prosecutor’s recent report states that,
contrary to some media reports, Ugandan
President Yoweri Museveni has not requested
that the Court withdraw its arrest warrants.
The Ugandan government reportedly submit-
ted a confidential letter to the Registry con-
firming its commitment to cooperate with the
Court, and expressing its desire to conduct
peace talks in a manner compatible with its
obligations as a State Party. As stated in the
report, the Prosecutor aims to continue inves-
tigations in a manner that will not disrupt the
peace negotiations.
Update on Darfur
On June 14, 2006, pursuant to Resolution
1593, Prosecutor Moreno-Ocampo presented
his third report to the UN Security Council.
He highlighted developments in the OTP’s
ongoing investigation of the situation in
Darfur. Since the investigation commenced in
June 2005, the OTP has conducted over 50
missions in 15 countries, interviewed hun-
dreds of witnesses, and reviewed thousands of
documents.
The ongoing violence has made it
extremely difficult to collect information
while ensuring the safety of victims, witness-
es, and ICC staff. Sudanese President Omar
al-Bashir has also stated that the ICC cannot
conduct investigations inside Sudan. Due to
these concerns, the Prosecutor has not con-
ducted investigations in Sudan, instead rely-
ing on witnesses and information located out-
side of Sudan. Critics suggest that this conces-
sion to the Government of Sudan compro-
mised the Court’s neutrality, as the govern-
ment is a party to the conflict and is therefore
subject to ICC investigation. The question
also remains whether an effective investiga-
tion is possible without entering the area in
which the atrocities took place.
The Prosecutor’s report also addressed the
willingness and ability of the Special Criminal
Court on the Events in Darfur to prosecute
crimes in Darfur and provide justice to the
victims. The Government of Sudan estab-
lished the Special Court soon after the
Security Council referred the situation to the
ICC. Critics claim the Special Court is a con-
trivance designed to forestall ICC prosecu-
tions. In February and June 2006, the OTP
visited Khartoum to assess the Special Court
proceedings in order to determine admissibil-
ity of possible cases before the ICC. The OTP
found evidence that the Special Court was not
willing or able to investigate or prosecute
crimes against humanity or war crimes, which
are the focus of the ICC’s investigations.
To date the Special Court has only con-
ducted thirteen trials. The cases involved low-
ranking offenders who committed minor
offenses such as theft. The court has not
addressed war crimes and crimes against
humanity committed by Janjaweed, govern-
ment, and rebel forces. NGOs report that the
Special Court grants immunity to members of
military and police forces, and does not recog-
nize the doctrine of command responsibility,
making prosecution of high-ranking officials
unlikely. Victims, particularly those subjected
to sexual violence, cannot complain for fear of
further harassment. Based on the Special
Court’s limited caseload, the Prosecutor
believes the cases under investigation are
admissible to the Court.
The Prosecutor has identified several spe-
cific cases for investigation and possible pros-
ecution, but has not yet prepared arrest war-
rants. The delay indicates an ongoing effort to
identify individuals with the greatest responsi-
bility for the crimes, identified by factors such
as the scale, nature, and impact of the crimes.
The Prosecutor’s task is complicated by the
ongoing violence and the lack of cooperation
from the Government of Sudan, whose con-
tinued intransigence promises to further delay
investigation of crimes and ultimately prevent
the apprehension of perpetrators.
Extraordinary Chambers in the
Courts of Cambodia
Judges and Prosecutors Appointed
On May 7, 2006, by Royal Decree
NS/RKT/0506/214, King Norodom
Sihamoni appointed 17 national and 12 inter-
national judges and prosecutors to serve on
the Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes
Committed during the Period of Democratic
Kampuchea (Extraordinary Chambers). The
Cambodian Supreme Council of the
Magistracy had previously selected the
appointees on May 4, 2006. The government
stated that the Supreme Council of the
Magistracy had followed proper guidelines for
selecting candidates using mandatory criteria
in the Establishment Law. These include:
evaluating language ability and inter-cultural
sensitivity; seeking a balance between candi-
dates’ experience and formal education; tak-
ing into consideration gender and ethnic rep-
resentation; and assessing candidates’ ability to
operate in a modern court environment. By
position, those appointed are:
Trial Chamber judges: Mr. Nil Nonn
(Cambodia), Mr. Thou Mony
(Cambodia), Mr. Ya Sokhan
(Cambodia), Ms. Silvia Cartwright
(New Zealand), and Mr. Jean-Marc
Lavergne (France). The reserve judges
in the Trial Chamber are Mr. You
Ottara (Cambodia) and Ms. Claudia
Fenz (Austria).
Supreme Court Chamber judges: H.E.
Kong Srim (Cambodia), Mr. Som
Sereyvuth (Cambodia), Mr. Sin Rith
(Cambodia), Mr. Ya Narin
(Cambodia), Mr. Motoo Noguchi
(Japan) Ms. Agnieszka Klonowiecka-
Milart (Poland), and Mr. Chandra
Nihal Jayasinghe (Sri Lanka). The
reserve judges in the Supreme Court
Chamber are Mr. Mong Monichariya
(Cambodia) and Mr. Martin Karopkin
(USA).
Co-investigating judges: Mr. You Bun
Leng (Cambodia), Marcel Lemonde
(France). The reserve co-investigating
judges are Mr. Thong Ol (Cambodia)
and an international judge (to be
announced).
Co-prosecutors: Ms. Chea Leang
(Cambodia) and Mr. Robert Petit
(Canada). Reserve co-prosecutors are
H.E. Chuon Sun Leng (Cambodia)
and Mr. Paul Coffey (USA).
Pre-Trial Chamber judges: H.E. Prak
Kimsan (Cambodia), H.E. Ney Thol
(Cambodia), Mr. Hout Vuthy
(Cambodia), Mr. Rowan Downing
(Australia), and Ms. Katinka Lahuis
(Netherlands). The reserve judge in
the Pre-Trial Chamber is Mr. Pen
Pichsaly (Cambodia).
The Cambodian and international judges
and prosecutors were sworn in during a cere-
mony at Phnom Penh's Silver Pagoda in the
royal palace on July 3. Trial chamber judge
Sylvia Cartwright and reserve co-prosecutor
Paul Coffey were reportedly unable to attend
the event. Reserve judges Claudia Fenz and
Martin Karopkin will only take an oath if
they are called into duty from reserve status.
During a week-long workshop in July, the
judges agreed to adopt internal regulations to
supplement Cambodian procedure, to guide
the work of the Chambers, and to ensure
compliance with international standards of
due process and justice. The judges also estab-
lished a Rules Committee to draft proposed
42
internal regulations, and a Judicial
Administration Committee to deal with issues
relating to the administration of the
Extraordinary Chambers, including the infra-
structure of the Chambers, protocol concerns,
and physical and human resource needs.
The Extraordinary Chambers officially
began its operations on July 10, when
Cambodian co-prosecutor Chea Leang and
international co-prosecutor Robert Petit
(Canada) commenced their formal investiga-
tion into crimes falling within the Chamber’s
jurisdiction. These include: genocide, crimes
against humanity, grave breaches of the
Geneva Conventions, destruction of cultural
property, crimes against internationally pro-
tected persons, and various domestic crimes
under the 1956 Cambodian Penal Code. On
September 4, the two co-investigating judges,
Marcel LeMonde (France) and You Bun Leng
(Cambodia), started their work in Phnom
Penh. They are tasked with questioning sus-
pects and victims, hearing witness testimony,
and collecting evidence. Principle Defender
Rupert Skilbeck (United Kingdom) has nego-
tiated an informal agreement with
Cambodian stakeholders that would allow
international defense counsel to fully partici-
pate in all proceedings related to the represen-
tation of accused, although the methods to
ensure that this occurs are subject to further
negotiation. Skilbeck will begin his work in
October 2006.
While the Extraordinary Chambers is mak-
ing rapid progress in its efforts to become fully
operational, many concerns have yet to be
addressed. A memorandum dated October 4,
from the Open Society Justice Initiative to the
Group of Interested States (GIS) — a coalition
of nations assisting the Extraordinary
Chambers — highlighted several outstanding
issues. These included: supplementing the
annual budget, adopting clear rules of proce-
dure, fostering judicial leadership and coopera-
tion, strengthening investigative independence
and capacity, and enhancing the Extraordinary
Chambers’ outreach and victim support.
Defendant Indicted for
War Crimes Dies
On July 21, 2006, Ung Chheun, also
known as Ta Mok, died at the age of 80. Ta
Mok was a notorious military commander of
the Khmer Rouge commonly known as “the
butcher.” He had been in military detention
since March 1999, when the government of
Cambodia indicted him for crimes against
domestic security and genocide. Since then,
the government renewed his detention order
each year in apparent anticipation of his pros-
ecution in the Extraordinary Chambers.
The Iraqi High Criminal Court
(Formerly the Iraqi Special
Tribunal)
The trial of Saddam Hussein and six oth-
ers charged with genocide continued after a
three week break between August 23 and
September 11. The Iraqi High Criminal
Court previously heard testimony from sur-
vivors of the “Anfal Campaign” against Iraqi
Kurds. Witnesses testified that over 180,000
Kurds died in chemical and other attacks
against the Kurdish population in 1987.
Hussein and seven others have already been
tried for the killing of 148 Kurds in Dujail in
1982. A verdict on the Dujail segment of the
trial, originally due in October 2006, was
deferred to allow defense lawyers to submit
written documents and for the court to review
additional evidence.
On September 13 Chief Prosecutor
Munqith al-Faroon accused Chief Judge
Abdullah al-Amiri of bias in the proceedings
and called for him to step down after al-Amiri
stated that Hussein was “not a dictator.” Al-
Faroon had previously made this request on
grounds that al-Amiri was biased towards the
defense. Acting on Al-Faroon’s petition, on
September 19 the cabinet of the Prime
Minister asked the court to remove al-Amiri
as Chief Judge. Judge Mohammad al-Khalifa,
who previously served as Deputy Chief Judge
of the court, was selected as al-Amiri’s replace-
ment. Saddam Hussein, however, refused to
recognize al-Khalifa’s authority as Chief
Judge, resulting in Hussein’s ejection from the
court. Hussein’s defense counsel then walked
out in protest and vowed not to return until
the government stopped “interfering” in the
trial. A previous Chief Judge, Rizgar
Muhammad Amin, resigned last January,
also citing government interference as a
main frustration.
On November 5, 2006, Judge Rauf Abdel
Rahman sentenced Saddam Hussein to death
by hanging for crimes against humanity.
Though Hussein and his co-defendants will
be permitted to appeal the convictions, the
appeals are unlikely to be successful. HRB
Elizabeth J. Rushing, a J.D. candidate at the
Washington College of Law, covers the ICTY and
ICTR for the Human Rights Brief.
Nick Leddy, a J.D. candidate at the Washington
College of Law, wrote the Sylvestre Gacumbitsi v. The
Prosecutor summary for the Human Rights Brief.
Anne Heindel, Assistant Director of the War Crimes
Research Office at the Washington College of Law,
edited the Sylvestre Gacumbitsi v. The Prosecutor
summary for the Human Rights Brief
Angela Edman, a J.D. candidate at the Washington
College of Law, covers the International Criminal
Court for the Human Rights Brief.
Bjorn Sorenson, a J.D. candidate at the Washington
College of Law, covers international criminal issues
for the Human Rights Brief.

ENDNOTES: Reinterpreting Torture continued from page 25

57 The Supreme Court has acknowledged that a private right of action exists 64 Scholars debate whether customary international law stems from a state’s
under federal common law in certain instances: “[W]e are persuaded that fed- policies or how a state acts in practice; therefore, whether executive and judi-
eral courts should not recognize private claims under federal common law for cial action as opposed to congressional policy would form state practice is
violations of any international law norm with less definite content and accept- questionable. But see Case Concerning the Military and Paramilitary Activities
ance among civilized nations than the historical paradigms familiar when [the In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 185.
Alien Tort Claims Act] was enacted.” Sosa, 542 U.S. at 732. 65 According to Harold Hongju Koh, Dean of Yale Law School, “the implica-
58 See generally Jordan J. Paust, The Significance and Determination of Custom- tions are clear: Under U.S. law, the President may not, on his own constitu-
ary International Human Rights Law: The Complex Nature, Sources and Evi- tional authority, violate a jus cogens norm such those against torture or slavery
dences of Customary Human Rights, 25 Ga. J. Int’l & Comp. L. 147 (1996). or genocide.”
59 See Fisheries (U.K. v. Nor.), 1951 I.C.J. 116, 131 (Dec. 18, 1951). The 66 United Nations Convention Against Torture and Other Cruel, Inhuman or
International Court of Justice held that a possible customary international law Degrading Treatment or Punishment, article 2(2), Dec. 10, 1984.
norm would be “inapplicable as against Norway inasmuch as she has always 67 See American Bar Association, Recommendation 11, 14.
opposed any attempt to apply it to the Norwegian coast.”
60 One article noted, “if the United States consistently rejects the inclusion of
a terrorist organization under Common Article 3, should such an inclusion
become customary international law, the persistent objector doctrine indicates
that the law would not bind the United States, unless it evolves into a jus
cogens norm.” “Executive Power – Military Commissions – D.C. Circuit
Upholds the Constitutionality of Military Commissions for Guantánamo Bay
Detainees. – Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.), Cert. Granted,
126 S. CT. 622 (2005),” 119 Harv. L. Rev. 1606, n. 53 (Mar. 2006).
61 Bybee memorandum at 1.
62 Xuncax v. Gramajo, 886 F.Supp. 162, 186 (D. Mass. 1995).
lxiv Professor Robert Goldman argues that “[a]lthough cruel, degrading, or
inhuman treatment is … clearly prohibited by customary law, its status as jus
cogens remains unclear.” Trivializing Torture: The Office of Legal Counsel’s
2002 Opinion Letter and International Law Against Torture, 12 No. 1 Hum.
Rts. Brief 1 (2006). See, e.g., American Convention on Human Rights art. 5,
signed Nov. 22, 1969, 1144 U.N.T.S. 123; European Convention for the Pro-
tection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950,
213 U.N.T.S. 222. Both the American Convention on Human Rights and the
European Convention for the Protection of Human Rights and Fundamental
Freedoms prohibit cruel, inhuman, and degrading treatment.

43
 UPDATES FROM THE REGIONAL HUMAN RIGHTS SYSTEMS
European Court of Human Rights
The European Court of Human Rights
(ECHR) was established in 1959 by the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
(Convention). The Court enforces the obliga-
tions entered into by the Council of Europe’s
Contracting States. Any Contracting State or
individual may lodge a complaint with the
Court for violations of the Convention.
Due to the ECHR’s increasing jurisdiction
and rapidly expanding caseload, the European
Council of Ministers has implemented a series
of new procedures to enable the Court to
function more efficiently. These procedures
include joining cases that raise identical issues
and adopting stricter criteria for cases to
even be considered by the Court. Contracting
States have endorsed the measures, but have
expressed concern that, in the name of
efficiency, the Court is putting individual
rights at risk.
With the accession of numerous
Contracting States since 1990, the Court has
been inundated with applications. The num-
ber of applications grew from 404 in 1981 to
29,650 in 2005. The increase in the Court’s
caseload threatens its ability to adjudicate
applications in a timely fashion. The Court
presently warns its applicants that they may
have to wait up to a year before receiving a
preliminary response to their complaint.
In 2004, the Member States of the
Council of Europe wrote, signed, and ratified
Protocol No. 14 to the Convention in order
to improve the efficiency of the Court’s pro-
cessing system in light of the increasing bur-
den of applications. Protocol 14 introduces
amendments in two main areas. First, the
Court adopted new admissibility criteria that
allow cases to be dismissed if they raise frivo-
lous complaints or if the applicant has not
suffered significant damage. These rules add
flexibility to the Court’s decisions to take or
reject cases. Although some worry that this
change jeopardizes the right to a trial, appli-
cants are safeguarded by two clauses in the
Protocol. The Court may not dismiss an
application for want of significant disadvan-
tage if respect for human rights requires an
examination on its merits. In addition, the
Court cannot reject an application if the matter
has not been adequately considered by the
courts in the applicant’s home nation.
The second way in which Protocol 14
sought to increase the Court’s efficiency was by
streamlining its filtering capacity. The Protocol
made a single judge competent to determine
admissibility of an individual application. It
also empowered panels of three judges to rule
simultaneously on whether to consolidate,
admit individually, or dismiss cases that raise
nearly identical issues of fact or law.
Some Contracting Parties question
whether these reforms have struck the appro-
priate balance between an individual’s
Article 34 right to bring a matter before the
Court and the Court’s practical need to be
able to reject some applications. In response
to these concerns, the Court has developed
a system that allows the Court to resolve
cases without actually hearing them on
the merits. This “pilot judgments” system
empowers the Court to directly order
respondent governments to remedy viola-
tions of Convention rights.
Thus, although there has been much
debate over whether the efficiency amend-
ments of Protocol 14 sacrifice the rights of
individuals to bring their grievances before
the Court, the ECHR feels it needs to give the
reforms a chance to avoid being consumed by
its burgeoning docket.
Hasan Deniz v. Turkey
While Article 10 of the Convention guar-
antees the right to freedom of expression,
Section 2 allows States Parties to impose
restrictions on this freedom when necessary to
protect public interests that are “necessary in a
democratic society.” Ongoing attempts by the
Turkish government to combat perceived ter-
rorist and secessionist threats have forced the
Court to articulate how countries must bal-
ance these two provisions. Where the Turkish
government has convicted individuals for
expressions of dissent, the ECHR has consis-
tently subjected the government’s justifica-
tions to the “closest scrutiny,” most often
finding that restricting the freedom of expres-
sion was not justified. Hasan Deniz v. Turkey,
decided June 27, 2006, is a recent example of
this trend.
44
Mr. Deniz worked as the editor for the
daily newspaper Özgür Bakis from April 18
to June 9, 1999. On June 1, 1999, the prose-
cutor for the Republic of Turkey demanded
the seizure of the daily because of an article
entitled “Est-ce Un Proces Historique?”
(“A Historic Case?”) written by Fikret
Baskaya. The article portrayed the history of
the struggle of the Kurdish population in
Turkey and their current status in Turkish
society, focusing on a famous trial of leaders
of the PKK, a Kurdish Resistance movement.
The same day the article was published,
the associate judge of the National Security
Court in Istanbul ordered the seizure of
the newspaper.
By a judgment on June 13, 1999, the
National Security Court convicted Mr. Deniz
for disseminating separatist propaganda, a
violation of Article 36 of the penal code of
Turkey. The court sentenced Mr. Deniz to six
months in prison and a fine of 1,553 EUR,
though it later commuted his prison sentence
to a fine of 1,555 EUR. Publication of his
newspaper was also banned for three days.
The Court of Cassation, the highest appellate
court in Turkey, confirmed the judgment on
appeal.
On April 2, 2001, Mr. Deniz filed an
application with the ECHR. His application
argued that the actions of the Turkish court
violated his right to freedom of expression
guaranteed by Article 10 of the Convention.
Consistent with its treatment of similar cases,
the Court took into account the difficulties
Turkey faced in its struggle against terrorism.
The Court held, however, that the motives of
the National Security Court did not create a
substantial ground for interfering in the right
to freedom of expression. While certain pas-
sages of the article painted a negative picture
of the Turkish State and told a hostile narra-
tive at points, the Court held that the article
was neither a story of hate nor an incitement
to rebellion. The Court had held these ele-
ments to be essential to justifying suspension
of the right to expression in past cases. The
Court additionally held that the heavy fines
and temporary suspension of the newspaper
were disproportionate to the government’s
goals and that Turkey had violated Article
10 of the Convention.
 Mr. Deniz’s application also argued that
there had been a violation of Article 6 of the
Convention, the right to have the foundation
of one’s case reviewed before an independent
and impartial tribunal and the right to defend
one’s self or have defense provided by the
state. Mr. Deniz alleged that the Security
Court lacked fairness because he never had
the opportunity to challenge the written judg-
ment that the prosecutor submitted to the
Court of Cassation. The ECHR held that
there had been a violation of Article 6, sec-
tions 1 and 3 of the Convention.
Mr. Deniz also alleged that the govern-
ment of Turkey had violated Articles 7 (no
punishment without law), 9 (freedom of
thought, conscience and religion), 13 (right
to an effective remedy), 14 (prohibition of
discrimination), 17 (prohibition of abuse of
rights) and 18 (limitation on use of restric-
tions on rights) of the Convention, but the
Court disagreed. Because he did not seek
reparations for these alleged violations, the
Court was unable to grant a monetary remedy.
Inter-American System
The Inter-American Human Rights
System was created with the adoption of the
American Declaration of the Rights and
Duties of Man in 1948. In 1959 the Inter-
American Commission on Human Rights
(Commission) was established as an inde-
pendent organ of the Organization of
American States, and it held its first session a
year later. In 1969 the American Convention
on Human Rights (Convention) was adopted.
The Convention further defined the role of
the Commission and created the Inter-
American Court of Human Rights (Inter-
American Court). According to the
Convention, once the Commission deter-
mines a case is admissible and meritorious, it
will make recommendations and, when, pres-
ent the case to the Inter-American Court for
adjudication. The Inter-American Court
hears these cases, determines liability under
relevant regional treaties and agreements, and
assesses and awards damages and other forms
of reparations to victims of human rights
violations.
Damião Ximenes Lopes v. Brazil
On July 4, 2006, the Inter-American
Court released its first verdict against the
Federative Republic of Brazil.
In Damião Ximenes Lopes v. Brazil, the
Court found Brazil liable for the death of
Damião Ximenes Lopes, a 30 year old patient
at a psychiatric clinic. For the first time, the
Inter-American Court addressed the issue of
mental health disability and expanded state
accountability. States may now be held
responsible for institutional violations of the
American Convention on Human Rights
(Convention), provided that the institution is
operating under state authority. The Court
condemned Brazil for violating Articles 1, 4,
5, 8, and 25 of the Convention, and failing to
meet its obligation to protect and respect
human rights; to guarantee the right to life
and personal dignity; to provide humane
treatment for vulnerable individuals; and to
ensure the right to a fair trial, due process,
and judicial protection.
The Casa de Repouso Guararapes psychi-
atric clinic admitted Damião Ximenes Lopes
for treatment on October 1, 1999. Within
days, his family reported evidence of torture:
Damião was kept naked with his hands tied,
nose bloodied, and face and abdomen
swollen. Though the family immediately noti-
fied the clinical director, Damião died on
October 4, 1999.
Suspecting death by torture, the Ximenes
Lopes family sought to obtain Damião’s med-
ical records and police report. But the local
mayor, who is the owner of Casa de Repouso
Guararapes, prevented the family from access-
ing any information regarding Damião’s case.
The family widely criticized this obstruction
of justice and sought assistance from the Civil
Police, Federal Prosecution Service, and Ceará
Legislative Assembly Human Rights
Commission. When these attempts to secure
domestic remedy failed, Damião’s sister filed a
petition with the Inter-American
Commission.
As a result of Damião’s death, Brazilian
authorities closed the Casa de Repouso
Guararapes on July 10, 2000, a closure long
overdue, as the clinic had been cited previous-
ly for inadequate administration. The govern-
ment of Brazil had negligently failed to regu-
late the clinic’s conditions, and because the
Casa de Repouso Guararapes was publicly
providing medical care to state psychiatric
patients, the Brazilian government was
responsible for ensuring its compliance with
national health care standards. Likewise, insti-
tutional violations of international law were
attributable to the Brazilian state. The Court
ordered Brazil to monetarily compensate
Damião’s family for obstruction of justice and
the cruel and inhumane treatment that caused
Damião’s suffering and death.
45
Brazil ratified the Inter-American
Convention on the Elimination of All Forms
of Discrimination against Persons with
Disabilities on July 17, 2001. Consequently
the Court held that Brazil must meet a higher
standard of care for persons living with mental
disabilities. The Court made an important
economic, social, and cultural stride in requir-
ing that Brazil give appropriate fiscal support
to institutions providing psychiatric and other
health services. The Court establishes — by
way of this crucial precedent — that the State
must ensure that even private institutions,
such as the one in this case, meet the increased
standard of protection and care for “persons of
vulnerability,” particularly those living with
mental disabilities.
The significance of the Inter-American
Court’s decision in this case is immense. The
Court made wide-reaching statements,
declaring: “All persons facing vulnerable situ-
ations are entitled to special protection.”
This ruling applies not only to persons with
mental disabilities, but also to persons suffer-
ing from any adverse circumstance and
vulnerability, including those living in
extreme poverty, “at-risk” youth, and indige-
nous peoples. The Court held that States
Parties must eliminate all discrimination
against people in vulnerable situations and
pass appropriate legislation to enforce and
promote their integration within society.
Through regulations, a state may strengthen
its domestic legal system in order to better
meet its special duty of care toward persons
with mental disabilities.
The case of Ximenes Lopes sets a vital
precedent in the Inter-American System.
It signifies a wave of change, characterized by
the recognition and proper interpretation of
human rights principles pertaining to persons
with mental disabilities and the proper appli-
cation of these principles. The Inter-American
Court also addressed the economic compo-
nent of human rights enforcement, holding
that through regulations and proper appropri-
ation of funds to those institutions acting
as agents of the state, the state would better
meet its higher standard of responsibility
toward “vulnerable persons.” Because most
countries in Latin America have not yet enact-
ed appropriate regulations into their domestic
legal systems to combat discrimination
against persons with mental disabilities,
“a more vigorous application of international
human rights standards by the Inter-
American Human Rights System is necessary
to hold States accountable for their treatment
of persons with mental disabilities, especially
in the context of … detention in psychiatric
institutions.”
This case is the first time the Inter-
American Court has ruled on the issue of
mental health disability. Such a decision is
greatly needed in this region where involun-
tary detention in psychiatric wards and inhu-
mane conditions in clinics is a widespread
problem. Damião Ximenes Lopes v. Brazil is
especially important in that the Court has
now introduced into the region — emulating
the position taken by the European Court on
Human Rights — the idea that the rights of
the mentally disabled are to be respected and
protected to the same extent as all other
human rights.
The Court made both legal and economic
arguments as to how the rights of vulnerable
peoples, particularly those with a mental
health disability, are to be observed and pro-
tected. With its decision, the Court has
importantly given an explicit interpretation of
the widely ratified Convention, ensuring that
States may not ignore their obligation toward
the rights of the mentally ill. States Parties
must now incorporate regulations into their
domestic legal systems that promote the high-
er standards of protection of vulnerable peo-
ple. They must also allocate more funding to
ensure that the institutions that provide state
services, such as health care and treatment,
meet the high standard of care required for
vulnerable people.
What is most significant about this deci-
sion, though, is that the Court’s decision is not
limited to the requirement of appropriate
funding for institutions providing psychiatric
health services. Rather, its holding affects
States’ funding on a wide-ranging level, requir-
ing them to allocate more monies to any insti-
tution serving the needs of “vulnerable peo-
ple.” In this manner, the Court’s ruling in
Damião Ximenes Lopes v. Brazil will serve to
expand State understanding, protection, and
realization of the rights of vulnerable persons.
African Commission
African Court Takes Shape and
Approaches Operational Status
The much anticipated dream of many
human rights activists in Africa is about to
materialize: the African Court on Human and
Peoples’ Rights (ACHPR) will soon become
operational. The existence of the ACHPR is a
substantial step, particularly considering the
failure of the African Court of Justice, which,
after long delay, never actualized. The
ACHPR will join the European Court of
Human Rights and the Inter-American Court
of Human Rights as the third major regional
mechanism to deliberate on human rights
violations. The ACHPR adds a much needed
enforcement mechanism to the African
Commission on Human and Peoples’ Rights
(Commission), considered ineffective by
many, in its service of the African Charter on
Human and Peoples’ Rights (Charter). Article
2 of the Protocol to the Charter on the
Establishment of an ACHPR (Protocol) states
that the purpose of the Court is to “comple-
ment the protective mandate of the
[Commission].” Prior to the adoption of the
Protocol, the Commission was entirely
responsible for the protection of the rights
afforded under the Charter.
The wave of ratifications necessary to
bring the ACHPR into force came with the
transformation of the Organization of African
Unity into the African Union. The Protocol
entered into force on January 25, 2004, after
being ratified by fifteen African Union mem-
ber states. The States subject to the ACHPR’s
jurisdiction are: Algeria, Burkina Faso,
Burundi, Côte D’Ivoire, Comoros, Gabon,
Gambia, Ghana, Kenya, Libya, Lesotho,
Mali, Mozambique, Mauritania, Mauritius,
Nigeria, Niger, Rwanda, South Africa,
Senegal, Tanzania, Togo, and Uganda.
The ACHPR’s foundation lies in the
Charter, which was adopted in 1987 by the
Organization of African Unity. Its jurisdic-
tion, as laid out in Article 3 of the Protocol,
extends “to all cases and disputes submitted to
it concerning the interpretation and applica-
tion of the Charter, this Protocol and any
other relevant Human Rights instrument rat-
ified by the States concerned.” The
Commission will play the role of investigating
violations and promoting rights while the
Court will serve as the Commission’s means of
enforcement. The ACHPR is unique among
courts of this nature in that both NGOs and
individuals can ask the Court for advisory
opinions, depending on the circumstances.
The ACHPR is composed of 11 judges. As
Article 11 of the Protocol states, judges must
be “nationals of Member States of the African
Union (OAU), elected in an individual capac-
ity from among jurists of high moral charac-
ter and of recognized practical, judicial or aca-
demic competence and experience in the field
of human and peoples’ rights.” Additionally,
no two judges may be nationals of the same
46
state. This article reflects the Commission’s
desire for the ACHPR to be composed of a
broad array of people from across the conti-
nent. Opening the pool of possible members
to the ACHPR, the article has no provision
requiring candidates to have any formal legal
background. Further requirements, such as
election methods, representation, and terms
in office, are elaborated in Articles 12 through
21 of the Protocol.
On July 17, 2006, the ACHPR judges
were sworn in: Sophia A.B. Akufo from
Ghana (two year term); Hamdi Faraj Fanoush
from Libya (four year term); Modibo Tounty
Guindo from Mali (six year term); El-Hadji
Guisse from Senegal (four year term); George
W. Kanyeihamba from Uganda (two year
term); Kelello Justina Mafoso-Guni from
Lesotho (four year term); Jean Mutsinzi from
Rwanda (six year term); Bernard Ngoepe
from South Africa (two year term); Gerard
Niyungeko from Burundi (six year term);
Fatsah Ouguergouz from Algeria (four year
term); and Jean Emile Somda from Burkina
Faso (two year term). While the Commission
is currently located in Gambia, the ACHPR
will likely be located in Arusha, Tanzania. In
this location, the ACHPR will move into the
seat formerly occupied by the International
Criminal Tribunal for Rwanda, which is
expected to conclude in 2008.
These small steps will hopefully lead
to larger ones. Africans and the rest of the
world are watching the advancement of the
ACHPR with great anticipation, hoping to
bring a measure of justice to a continent rid-
dled by gross human rights violations and
widespread impunity. HRB
Anna Cabot, a J.D. candidate at the Washington
College of Law, covers the European Court of Human
Rights for the Human Rights Brief.
Suzanne Shams, a J.D. candidate at the Washington
College of Law, covers the Inter-American System for
the Human Rights Brief.
Mihir Mankad, a J.D. candidate at the Washington
College of Law, covers the African Commission on
Human and People’s Rights for the Human Rights
Brief.
 UNITED NATIONS UPDATE
Assessment of the New UN
Human Rights Council
The new UN Human Rights Council
(Council) concluded its second regular session
on October 6, 2006. Although the Council
heard from over 40 reporters on issues from
racism to counter-terrorism, it was forced to
table almost 50 resolutions because of the large
amount of work it faced in its three-week ses-
sion. The Council intended to leave behind the
political maneuvering and posturing by coun-
tries with poor human rights records that
plagued its predecessor Commission on
Human Rights. It does not appear, however,
that the new body has escaped these ills.
UN Secretary-General Kofi Annan
opened the Council’s inaugural session with
remarks underscoring his hope that the
Council’s work would mark a clean break
from the past and lead to a full revitalization
of the UN’s human rights machinery. He
stressed the importance of the universal peri-
odic review mechanism whereby the Council
reviews the human rights situations in
Member States. Annan also encouraged the
Council to confront politically thorny issues
and engage in difficult discussions where nec-
essary to remedy or prevent human rights vio-
lations, and urged the Council not to become
caught up in political maneuvering. Many
high-ranking representatives, UN officials,
and NGOs echoed Annan’s sentiments.
Despite this espousal of high ideals and
hopes, the Council’s activities during its first
three months have not escaped criticism. The
first Special Session, requested by Tunisia as the
Chair of the Arab Group to address the human
rights situation in the Occupied Palestinian
Territories, seemed like a request based more
on a desire to criticize Israel than on actual con-
cern of abuse. This triggered concern that
Member States, in the criticized tradition of the
now defunct Commission on Human Rights,
would continue to use the forum for political
ends. It was feared that such political maneu-
vering would inhibit the Council’s ability to
look into pressing situations such as Darfur.
Concern escalated during the Council’s
second Special Session, also requested by
Tunisia on behalf of the Group of Arab Sates
and the Organization of the Islamic
Conference. The Council adopted a resolution
to investigate Israeli violations of international
humanitarian law in its conflict with Lebanon
without inquiring into Hezbollah’s abuses.
Human Rights Watch warned that the
Council’s resolution “undermined its credibil-
ity and wasted an opportunity to protect civil-
ians in the region.” Amnesty International
expressed disappointment that the Council’s
session on Lebanon “put politics before lives”
and “failed to meet the principles of impar-
tiality and objectivity expected.” Other
NGOs expressed disappointment that per-
ceived political self-interest and maneuvering
by countries with poor human rights records
would inhibit the Council from addressing
human rights crises, including in Darfur and
Uzbekistan, in an impartial manner.
Update on Darfur
Conflicting opinions about strategy, com-
peting political interests, and a reluctance to
challenge state sovereignty have precluded the
UN from successfully addressing the ongoing
crisis in Darfur, where at least 400,000 people
have died and some 2 million have been dis-
placed as a result of civil unrest between war-
ring ethnic groups and government militias in
the region. The conflict poses a unique oppor-
tunity for the UN to begin to implement
some of the reforms it committed to last year,
particularly the “responsibility to protect.”
On September 28, Sima Samar, UN
Special Rapporteur on the situation of human
rights in the Sudan, said that Sudanese
Government forces, militias, rebel factions,
and opposition groups from neighboring
Chad continue to kill in Sudan, particularly
in the Darfur region. The independent,
unpaid human rights expert cited continuing
violations of the right to life, with special con-
cern for rape and other sexual violence against
women. Recently the Sudanese government
conducted aerial bombings of civilian occu-
pied villages in the rebel-controlled northern
part of the region. The bombings, as reported
by Human Rights Watch, were conducted
using a method so inaccurate that it could not
strike military targets without a substantial
risk of harm to civilians.
The UN has failed to mount an effective
response to the violence. The Security
Council reportedly has a list of targets for
47
potential sanctions that includes the Sudanese
president and other high ranking government
officials. Yet Security Council members have
resisted such action, fearing that it would
impede UN negotiations with these very offi-
cials over the expansion of an African Union
(AU) force trying to stem continued violence
in Darfur. Such negotiations are especially
important in light of the improbability that a
UN force will reach Darfur. In late August the
Security Council passed UN Security Council
Resolution 1706, which calls for the 7,000
AU troops that have been unable to stop the
violence to be replaced by 17,000 UN troops
with a tougher mandate and more secure
funding. Sudan, however, has blocked imple-
mentation of this resolution. UN ex-envoy to
Sudan Jan Pronk does not expect Sudan to
accept the UN peacekeepers, and suggested
that the international community should
instead strengthen the AU forces, whose mis-
sion has been extended to the end of the year.
Sudan’s resistance to Resolution 1706
highlights the conflict between a critical ele-
ment of UN reform — the “responsibility to
protect” — and the sovereignty of African
countries. At last year's UN General
Assembly, world leaders unanimously
endorsed a “responsibility to protect.” The
theory behind this responsibility is that if a
country cannot or will not protect its citizens
from genocide, war crimes, crimes against
humanity, or ethnic cleansing, it must accept
support or assistance from other nations to
end the violence. While the new doctrine
respects the sovereignty of countries to regu-
late their internal affairs, it considers this sov-
ereignty to be conditional and not absolute.
When peaceful means are exhausted and lead-
ers of a UN Member State are “manifestly fail-
ing to protect their populations,” other states
have the responsibility to take collective
action through the Security Council.
There is growing support for the “responsi-
bility to protect” among African states that
have traditionally embraced strong notions of
sovereignty. This shift is perhaps a response to
the terrible crimes against humanity perpetrat-
ed in Rwanda, Uganda, and Burundi for which
state sovereignty impeded international inter-
vention. Ghana’s representative, Effah-
Aptengeng, has championed this thinking,
continued on back cover

The Human Rights Brief ’s Legislative
Watch reports on key legislation in the U.S.
and other countries relevant to human
rights and humanitarian law. This list is
not meant to be comprehensive.
S. 3930/ H. R. 6166, MILITARY
COMMISSIONS ACT OF 2006
Senate Sponsor: Senator Mitch McConnell
(R-KY), 2 Co-sponsors
House Sponsor: Representative Duncan
Hunter (R-CA), 1 Co-sponsor
Senate Status: Passed by roll call vote 65-34
on September 28, 2006.
House Status: Passed by roll call vote 253-
168 on September 27, 2006.
Substance: The purpose of these parallel bills
is to give the President the authority to con-
vene military commissions to prosecute terror
suspects. The legislation prosecutes unlawful
enemy combatants engaged in hostilities
against the United States or its citizens and
creates the procedures, rules, and legal frame-
work for trying alleged terrorists. The Act
allows suspects to obtain a civilian defense
counsel but strips away the writ of habeas cor-
pus, the right to challenge unlawful deten-
tion. The bill also states that no one may
invoke foreign or international law as a source
of rights and that no foreign or international
law shall supply a rule of decision in court.
Despite claims that the bill prohibits cer-
tain abusive interrogation techniques, such as
stimulated drowning, by providing precise
definitions of abusive treatment, opponents
like Human Rights Watch say the bill is
flawed. Critics are worried that the legislation
violates the U.S. Constitution because it
denies detainees the basic right to challenge
the lawfulness or conditions of their deten-
tion. Without the right of habeas corpus, one
of the oldest human rights protections, the
President would be able to indefinitely detain
individuals without charge.
The Senate rejected an amendment to the
bill, 51-48, supported by Senator Arlen
Specter (R-PA) and Senator Patrick Leahy (D-
VT), which would have preserved the writ of
habeas corpus. Leahy said that the bill, as
passed, is “flagrantly unconstitutional” and
LEGISLATIVE WATCH
that “authorizing indefinite detention of any- The main objectives of the bill are: to sup-
body the government designates is what our port the political process in the country; to
critics claim the United States would do, not ensure transparent governance once a stable
what American values, traditions and our rule national government is established; to assist
of law would have us do.” the government in meeting the basic needs of
its citizens; and to increase security by helping
The bill has domestic as well as interna-
to train a professional national army and
tional repercussions. Legal residents of the
police force that respects human rights. To
United States and foreign citizens in their
help quell the conflict, the bill calls for a spe-
own countries may be subject to indefinite
cial U.S. envoy to the region and encourages
detention with no appeal because of the vague
the United Nations to strengthen its peace-
and broad definition of the term “unlawful
keeping forces by enhancing surveillance
enemy combatant.” The bill redefines “unlaw-
capabilities and monitoring arms trafficking
ful enemy combatant” to include those who
and natural resource exploitation. The bill
have purposefully and materially supported
authorizes a 25 percent increase in U.S. assis-
hostilities against the United States or its
tance. The proposed increase would bring the
co-belligerents. This new definition could
total aid to $52 million available for fiscal year
apply to many innocent individuals. The bill
2006, according to a Congressional Budget
would also allow the President to interpret the
Office report.
meaning and application of the Geneva
Conventions. Amnesty International said Supporters of the bill, such as the IRC, say
that the bill narrows the scope of the War that the bill would save lives and rebuild the
Crimes Act by not explicitly criminalizing country. The majority of deaths are caused by
degrading and humiliating interrogation tech- preventable and treatable illnesses; violence
niques banned by Common Article 3 of the prevents people in the country from receiving
Geneva Conventions. food, clean water, and the medical care they
need. UN Emergency Relief Coordinator Jan
Egeland said that 2006 is a crucial year for the
S. 2125, DEMOCRATIC REPUBLIC
DRC because while the country is heading in
OF THE CONGO RELIEF,
the right direction, more assistance is needed
SECURITY, AND DEMOCRACY
to address what has been the largest humani-
PROMOTION ACT OF 2006
tarian emergency of the last decade.
Sponsor: Senator Barack Obama (D-IL), 12
Co-sponsors
H. R. 6061, SECURE FENCE ACT
Status: Passed by unanimous consent in the OF 2006
Senate, with amendment, on June 29, 2006.
Sponsor: Representative Peter King (R-NY),
Substance: The bill is a response to growing 42 Co-sponsors
concerns regarding the situation in the
House Status: Passed by roll call vote 283-
Democratic Republic of Congo (DRC),
138 on September 14, 2006.
Africa’s third largest country. Since 1994 the
country has been plagued by ethnic strife and Senate Status: Passed by roll call vote 80-19
civil war, which was exacerbated by a massive on September 29, 2006.
influx of refugees fleeing the Rwandan
Substance: This bill is the latest in the wave
Genocide. A cease-fire was signed in 1999 but
of immigration reforms in the United States.
fighting continued. In December 2004 a
The purpose of the bill is to secure the south-
study by the International Rescue Committee
ern border of the United States with Mexico
(IRC) found that 31,000 people were dying
by authorizing the construction of a double-
monthly, and a total of 3.8 million people had
layered 700-mile fence. A virtual fence will
died since 1998 because of continued violence
accompany the physical infrastructure, with
and the lack of basic medical care. On July 30,
systematic surveillance by unmanned aerial
2006, the DRC held its first free elections in
vehicles, ground-based sensors, satellites,
more than 40 years. The United Nations
radar coverage, and cameras. Lawmakers from
reports, however, that 1,000 people continue
both political parties admit, however, that
to die each day because of the ongoing
humanitarian crisis.
continued on page 50
48

To foster communication among human
rights organizations around the world, each
issue of the Human Rights Brief features an
“NGO Update.” This space was created to
aid non-governmental organizations (NGOs)
by informing others about their programs,
successes, and challenges.
The Institute for
OneWorld Health
www.oneworldhealth.org
The Institute for OneWorld Health is a
nonprofit pharmaceutical company whose
mission is to develop safe, effective, and
affordable new medicines for people with
infectious diseases in the developing world.
Access to doctors and medicine and the right
to affordable health care have been evolving
principles of human rights since the United
Nations adopted the Universal Declaration of
Human Rights in 1948. With the recent
explosion of the pharmaceutical industry in
the developed world, the prevailing model of
medicine is a business model driven by profit.
OneWorld Health is challenging this by
establishing a nonprofit model of drug devel-
opment driven by the neglected health needs
of people in the developing world.
Dr. Victoria G. Hale founded OneWorld
Health in July 2000 in San Francisco,
California in an effort to address the gap in
human need, scientific effort, and the market-
place. OneWorld Health has five general
roles: identifying potential new medicines for
diseases affecting developing countries; assess-
ing the safety and effectiveness of investiga-
tional medicines; honoring international eth-
ical standards for research; establishing collab-
orations with partners to manufacture and
distribute new medicines; and ensuring that
medicines will be affordable and available
for distribution.
OneWorld Health is the first nonprofit
pharmaceutical company in the United
States. The NGO tests the prevailing business
model of pharmaceutical research and devel-
opment by partnering with the industry sec-
tor and researchers. In an effort to decrease
costs of production, OneWorld secures
donated intellectual property and utilizes the
scientific and manufacturing capacity of the
NGO UPDATE
developing world in order to deliver afford-
able and effective medicine where these
resources are needed most.
On September 19, 2006, the John D. and
Catherine T. MacArthur Foundation named
Dr. Hale a 2006 MacArthur Fellow.
MacArthur Fellowships are awarded to indi-
viduals who have developed original and cre-
ative ideas through which they can potential-
ly make significant contributions to the
world. The MacArthur Foundation through
an unsolicited, meticulous review process
chooses 20 to 25 Fellows each year. Each
Fellow receives an unrestricted grant of
$500,000 distributed over the course of five
years. The MacArthur Foundation recognized
Dr. Hale as a Pharmaceutical Entrepreneur
for her creation of OneWorld Health and her
significant contribution to medicine in devel-
oping countries. In addition to being named a
MacArthur Fellow, Dr. Hale has also been
selected as a 2006 Ashoka Senior Fellow for
leading work in social innovation, as well as
being selected Esquire Magazine’s Executive
of the Year in 2005. The MacArthur
Fellowship came only days after OneWorld
Health achieved international attention for
the approval of one of its most recent research
projects. On September 8, 2006 the Drug
Controller General of India approved
Paromomycin Intramuscular Injection for
the treatment of Visceral Leishmaniasis (VL).
VL is the second most deadly parasitic disease
in the world following malaria. The treat-
ment for VL was approved less than three
months after OneWorld Health submitted
the drug’s application.
In the last decade the relationship between
the pharmaceutical industry and the develop-
ing world has gained significant international
attention, most of which has been negative.
Dr. Hale and OneWorld Health illustrate a
significant shift in the way people view the
pharmaceutical industry. If a nonprofit busi-
ness model can successfully deliver current
and future medicine and medical technology
to the developing world, the potential impact
is immense. As scientists continue to develop
new medicines, OneWorld Health represents
a possible future that is hopeful for human
rights and the millions of people in need in
the developing world.
49
The Amy Biehl Foundation
www.amybiehl.org
Unlike many human rights NGOs, the
Amy Biehl Foundation grew out of a personal
tragedy. In 1993, Amy Biehl, a dynamic, intel-
ligent, and compassionate human rights advo-
cate and student was working in South Africa
when she was viciously murdered by an angry
mob in the Guguletu Township. Amy’s par-
ents, Linda and Peter Biehl, faced the chal-
lenge of addressing the tragedy of Amy’s
death. Linda remembers that she and her hus-
band wanted to respond positively and
express their love and support for their daugh-
ter and her work. In the wake of Amy’s death,
the Biehls were invited to South Africa and
ultimately asked to be part of Archbishop
Desmond Tutu’s Truth and Reconciliation
Commission (TRC). What started as love and
support for their daughter quickly grew into
love and support for South Africa.
A major theme of Amy Biehl’s work, and
that behind the TRC, was restorative justice.
Restorative justice focuses on repairing the
harm done by crime and rebuilding the
impacted communities. In consideration of
this, The Biehls supported the granting of
amnesty for the men that murdered Amy.
Two of the young men granted amnesty later
worked as employees of the Amy Biehl
Foundation Trust, helping deliver loaves of
“Amy’s Bread: The Bread of Hope and Peace.”
In 1997, in support of South Africa’s post-
apartheid advances, the Biehls founded the
Amy Biehl Foundation Trust (ABFT), a non-
profit organization in South Africa, and the
Amy Biehl Foundation (ABF), a non-profit
organization in the United States. The ABFT
is a grassroots, community based organization
in South Africa that provides students with
the preparation to pursue higher education or
to acquire marketable skills. The ABFT leads
and supports community-based programs
that cover a wide variety of social issues,
including education, micro enterprise devel-
opment, health and safety, and the environ-
ment. A sampling of ABFT programs
includes: teaching first-aid classes in South
African prisons; educating the public about
HIV and AIDS; supporting music and theatre
outreach projects; and developing a series of
after-school care programs.
NGO UPDATE
The ABF is an American NGO that was
created primarily to serve as a fundraising
mechanism for the ABFT. However, the ABF
has also become an active restorative justice
program. Each year Linda Biehl and col-
leagues travel the United States, sharing sto-
ries and teaching youth about restorative jus-
tice. The ABF also supports interns both in
the United States and in South Africa. Linda
Biehl views ABF’s work as facilitating restora-
tive justice and educating America’s youth.
The ABF works to teach American students
LEGISLATIVE WATCH continued from page 48
1,300 miles of the border would remain
uncovered, and some concede that the con-
struction of the wall is nearly impossible
because of the steep ravines and sharp moun-
tain peaks of the southwestern region. The bill
also calls for a study to be conducted by the
Department of Homeland Security on the
feasibility of an infrastructure security system
along the northern border of the United
States. The construction of the fence is
expected to cost $6 billion.
Supporters of the bill, such as House
Speaker J. Dennis Hastert (R-IL), say that the
fence is common sense because it will make it
harder for illegal immigrants to cross into the
United States. Opponents of the bill, includ-
ing Senate Minority Leader Harry Reid (D-
NV), criticize President Bush for settling for
this ineffective half-measure when just
months ago he was calling for comprehensive
reform. Moreover, the Border Network for
Human Rights stated that the bill will let
the value of other cultures and listening skills.
Through the ABF and the ABFT, Amy Biehl’s
legacy continues. As South Africa continues
to emerge as a new democracy, the NGOs
create a setting for students in the U.S. and
South Africa to learn about restorative
justice and appreciate the lessons of other
cultures. HRB
Jerald Hess, a J.D. candidate at the Washington
College of Law, covers the NGO Update for the
Human Rights Brief.
hundreds more people die and will risk the Calderon, who will assume power in
safety and future of our communities. December, said that the fence will increase
tension and insecurity at the border with
Ted Kennedy (D-MA), a visible figure in
Mexico. The mentality of the wall also
the push for immigration reform, emphasized
alienates other countries, especially those in
that the measure will be ineffective because
Latin America who call the wall “muro de
fences can be circumvented over land and
muerte” (the “wall of death”). Cardinal Roger
through underground tunnels. He also noted
Mahoney, Archbishop of Los Angeles, said
that the fence would do nothing about immi-
that “as the world’s superpower and greatest
grants who come to the United States legally
democracy, [the United States] possesses the
and then overstay their visas. For example,
resources and ingenuity to solve our immi-
500,000 undocumented immigrants entered
grant problems humanely and without resort-
the United States each year between 1990 and
ing to the construction of barriers and walls.”
2006, despite the increase in budget of the
HRB
Border Patrol from $263 million to $1.6 bil-
lion during the same 16-year period.
Edward Babayan, a J.D. candidate at the
The bill has also caused friction between Washington College of Law, covers the Legislative
Watch for the Human Rights Brief.
the United States and Mexico. Luis Ernesto
Derbez, Mexico’s Foreign Secretary, said that
the government may go to the United
Nations to challenge the United States’ plan
of building the fence. President-Elect Felipe
50

Catherine A. MacKinnon,
Are Women Human? And Other
International Dialogues
(cambridge: harvard university
press, 2006, 419 pp., hbk.).
In this provocative collection of speeches
and articles, a “transnational companion” to
the 2004 publication of Women’s Lives, Men’s
Laws, Catharine MacKinnon’s gifts as a
writer, scholar, and (let us not forget) lawyer
are on abundant display. If there were any
doubt as to MacKinnon’s now near iconic
status in the fight for global sex equality, this
book is a sparkling reminder of why she so
eminently deserves such acclaim. While her
thesis — that inequality on the basis of sex is
a pervasive reality of women’s lives all over
the world — may not be new, the analysis
here is remarkably fresh as MacKinnon
explores what she calls a “double-edged
denial”: women’s abuse is considered either
too extraordinary to be believed or too ordi-
nary to rise to the level of violations under
international human rights law. In her
words, “If it’s happening, it’s not so bad, and
if it’s really bad, it isn’t happening.”
Indeed, as the book’s title suggests,
MacKinnon recognizes that law, in both its
international and domestic manifestations,
has been men’s historic domain. What
women’s lack of recognition as legal subjects
has meant is that they are not yet fully
human in the legal and political sense, i.e.,
bearers of equal rights under law. “Human
rights,” MacKinnon writes, “have not been
women’s rights — not in theory or in reality,
not legally or socially, not domestically or
internationally.” The question the book asks
is whether and to what degree the prevalence
of crimes committed against women — rape
by strangers and intimates, domestic vio-
lence, trafficking, coerced sex work — can
be remedied by an often hypocritical inter-
national system, which condemns crimes
against humanity but fails to confront simi-
lar harms when they happen to women on a
daily basis. As MacKinnon rightly notes,
“Legally, one is less than human when one’s
violations do not violate the human rights
that are recognized.”
MacKinnon’s point is repeatedly and
forcefully mined in the course of the book’s
twenty five essays. In some, she points to
BOOK REVIEWS
important victories that have undoubtedly
pushed the international legal landscape
further towards equality; these include,
notably, international agreements such as
the 1979 Convention on the Elimination of
All Forms of Discrimination Against
Women that have given salience to sex-spe-
cific abuses such as domestic violence and
sexual harassment, the recognition of rape as
a form of torture and/or genocide, and the
successful use of civil remedies in national
courts as a form of legal relief for victims of
sexual atrocities. In the landmark case Kadic
v. Karadzic, MacKinnon herself represented
a group of women who had been raped dur-
ing the Bosnian conflict. Employing the
Alien Tort Claims Act, she successfully
Courtesy of the Harvard University Press
brought suit against the Bosnian Serb leader
Radovan Karadzic, seeking damages for
“genocidal sexual atrocities perpetrated as a
result of Karadzic’s policy of ethnic cleans-
ing.” In August 2000, a jury in New York
awarded the plaintiffs $745 million in com-
pensatory and punitive damages and a per-
manent injunction.
Yet despite MacKinnon’s interest in
international legal mechanisms, she harbors
no illusions as to their inherent shortcom-
ings. In two particularly trenchant essays,
she interrogates the internationally accepted
definition of genocide and the (less accept-
ed) definition of terrorism, arguing that
while much of the violence done to women
would meet these standards, such acts never-
theless go unrecognized by an international
51
system deaf to the “systematic slaughter built
into everyday life in quiet, ignored crises of
normality.” MacKinnon asks, “What will it
take for violence against women, this daily
war, this terrorism against women as women
that goes on every day worldwide, this every-
day, group-based, systematic threat to and
crime against the peace, to receive a response
in the structure and practice of international
law anything approximate to the level of
focus and determination inspired by the
September 11th attacks?”
Unfortunately, it is this crucial question
that MacKinnon fails to adequately grapple
with. Indeed, if international law is a prod-
uct of the very states that condone violence
against women, why is it surprising that the
law of nations is often as unsatisfying as the
nation’s laws? Reading this book, one has the
sense that the international realm is
undoubtedly MacKinnon’s preferred forum
for achieving “[g]lobal consciousness of
women’s right to human status,” yet we are
simultaneously and repeatedly reminded of
its manifest deficiencies for doing so. And
what if one was to accept the argument that
the abuse inflicted on women is tantamount
or equivalent to the international definitions
of torture, genocide, or terrorism? Should
the definitions themselves be recast and, if
so, what would be the practical effect of
doing so? At a rhetorical level, MacKinnon’s
comparisons are well-taken; as a legal matter,
however, the point is less than clear.
But these minor quibbles should not
detract from the strength of MacKinnon’s
argument or the value of this important col-
lection. The point is that the violence done
to women, their continued exclusion from
the world’s public sphere, and their contin-
ued, pervasive objectification have rendered
such abuse either too exceptional to be com-
mon, or too common to be exceptional.
This is the challenge that international
human rights law, and its constituent States
Parties, must confront. We are fortunate to
have MacKinnon’s fine mind on hand, com-
pelling us to do so. HRB
Christian M. De Vos, a J.D. candidate at the
Washington College of Law, wrote the review of Are
Women Human? And Other International
Dialogues for the Human Rights Brief.
 CENTER NEWS/FACULTY AND STAFF UPDATES
Center News
Hamdan v. Rumsfeld: Implications
for Military Commissions
On September 26, 2006, the Center for
Human Rights and Humanitarian Law host-
ed a conference entitled “Hamdan v. Rumsfeld:
Implications for Military Commissions,”
which took a look at the pivotal decision
issued by the U.S. Supreme Court in June
2006 that overturned the use of military tri-
bunals at Guantánamo Bay, Cuba. The con-
ference explored the implications of this deci-
sion and discussed its various dimensions,
including its impact on international law, sep-
aration of powers, habeas corpus, and how the
decision specifically affects practitioners and
detainees at Guantánamo Bay. In addition,
the conference focused on how the Hamdan
decision informed subsequently passed legis-
lation on military commissions and due
process for detainees at Guantánamo. Among
the speakers at the conference were WCL
Professor Robert K. Goldman, former United
Nations Independent Expert on Human
Rights and Terrorism; WCL Professor Dan
Marcus, former General Counsel of the 9/11
Commission; WCL Professor Herman
Schwartz, Constitutional Law Scholar; WCL
Professor Rick Wilson, Co-Counsel for
Guantanamo Detainee Omar Khadr; Eugene
R. Fidell, President, National Institute of
Military Justice; WCL Professor Kristine
Huskey, WCL International Human Rights
Law Clinic; Major Tom Fleener, Office of
Military Commissions, Defense; and General
Thomas L. Hemingway, Brigadier General,
USAF, Legal Advisor to the Appointing
Authority, Office of Military Commissions. A
webcast and podcast taping of the Hamdan
conference is available on the Center’s website:
http://www.wcl.american.edu/humright/center/.
Darfur Week of Activism
The Responsibility to Protect:
The Case of Darfur
One year after the UN adopted a resolu-
tion recognizing the Responsibility to Protect,
the case of Sudan continues to challenge the
real-life implementation of this theoretical
concept. A September 29th conference exam-
ined the implications of the Responsibility to
Protect in the context of Sudan. Given the nity. The entire week of activities was co-spon-
prospect of the African Union peacekeeping sored by the Center for Human Rights and
force pulling out of Darfur, the Sudanese gov- Humanitarian Law in collaboration with WCL
ernment’s continued rejection of a new UN student groups Action for Human Rights, the
Peacekeeping force for the area, and the LLM Board, the Israel & Law Society, and
implementation of several peace agreements STAND: Students Taking Action Now Darfur.
in the region, the conference discussed the
conceptual framework of the Responsibility All-Day Teach-In on Guantánamo
to Protect and the complexities surrounding Bay Naval Base
its implementation in Darfur. Panelists also
On October 5, 2006, WCL participated
considered the prospects for a comprehensive
in an unprecedented collaborative effort of
and sustainable peace in Sudan and the need
academia, journalism, religion, medicine and
to expand the peacekeeping mandate in the
the military in exploring the Government’s
region to fulfill the Responsibility to Protect.
detention policy and practices in the “War on
Among the panelists were Ted Dagne, Africa
Terror.” Over 200 schools in at least 44 U.S.
Specialist, Congressional Research Service;
states participated in an all-day conference,
Sarah Margon, Policy Advisor for
which was webcast from Seton Hall
Humanitarian Response at Oxfam America;
University School of Law in Newark, New
Dr. Mudawi Ibrahim Adam, Founder and
Jersey. The Teach-In addressed the national
Chairperson, Sudan Social Development
and international implications of indefinitely
Organization (SUDO); Lee Feinstein, Senior
detaining hundreds of individuals deemed
Fellow for U.S. Foreign Policy and
“enemy combatants.” More specifically,
International Law, Council on Foreign
the Teach-In documented the history of
Relations; Ken Hurwitz, Senior Associate,
Guantánamo, including: the Bush
International Justice Program, Human Rights
Administration's strategy to locate an off-
First; Nicole Deller, Program Advisor, World
shore prison complex beyond the jurisdiction
Federalist Movement; Tod Lindberg, Fellow,
of U.S. courts; its disregard for international
Hoover Institution, Stanford University;
and domestic laws, as well as years of U.S.
Roberta Cohen, Co-Director, Brookings-
military tradition regarding the classification
Bern Project on Internal Displacement,
and treatment of captives in conflict; the use
Brookings Institute; Ariela Blatter, Director of
of torture and systematically coercive interro-
Crisis Prevention and Intervention, Amnesty
gation techniques; the abuse of medical and
International U.S.A.; Rahim Sabir, Former
psychological ethics; and Guantánamo’s place
UN Human Rights Monitor, Darfur, Sudan;
in a broader network of detention operations
Colin Thomas Jensen, Advocacy and
as part of the “War on Terror.”
Research Officer for Africa, International
Crisis Group; and Mark Hanis, Executive In addition to the panels which were web-
Director, Genocide Intervention Network. A cast from Seton Hall, WCL hosted a standing
webcast and podcast taping of the conference room only event with WCL Professors who
is available on the Center’s website: serve as co-counsel to Omar Khadr, the
http://www.wcl.american.edu/humright/center/. youngest detainee at Guantánamo Bay and a
client of the WCL International Human Rights
The conference capped off a full week of
Clinic. Omar, a Canadian citizen, was detained
activism at WCL which included a lobbying
at the age of 15 in Afghanistan and remains in
training seminar, conducted by Amnesty
Guantánamo as he approaches his 20th birth-
International U.S.A., which was held on
day. His case brings up issues not only of due
Capitol Hill in Washington, DC. Throughout
process and rule of law, but also of the rights of
the week, a photo display, which was a featured
juveniles. Professors Rick Wilson and Muneer
exhibition at the United States Holocaust
Ahmad serve as co-counsel for Mr. Khadr and
Memorial Museum, remained in WCL’s lobby.
spoke on the panel, as did Professor Kristine
In addition, filmmaker Adam Shapiro spoke to
Huskey. A webcast taping of the live panel fea-
an audience of students at a screening of his
tured at WCL as part of the Guantánamo
film “Darfur Diaries,” which has received crit-
Teach-In is available on the Center’s website:
ical acclaim within the human rights commu-
http://www.wcl.american.edu/humright/center/.
52
One Year Anniversary of Hurricane
Katrina: Commemoration and
Moving Forward
On August 29, 2006, the Center, together
with the WCL student organization Action
for Human Rights, co-sponsored a day of
activities to commemorate the one year
anniversary of Hurricane Katrina. Action for
Human Rights presented a short film and
presentation on Hurricane Katrina and the
current state of affairs in the Gulf Coast one
year after. In addition to the presentation, the
WCL student group held a day long fundrais-
er for victims of Hurricane Katrina and ended
the day by joining students from Howard
University, Georgetown University and the
University of the District of Columbia, for a
candlelight vigil in front of the White House,
to express sympathy and concern for the cur-
rent state of affairs in the Gulf Coast after the
Hurricanes last year.
Munching on Human Rights and
Action for Human Rights
The Center kicked off its monthly
“Munching on Human Rights” Speaker Series
with a presentation by the Center’s Executive
Director, Hadar Harris, entitled “What Do
You Mean When You Say ‘Human Rights?’:
An Introduction to Human Rights Law.”
Other sessions in the fall series featured WCL
Professor and Director of the WCL
International Human Rights Clinic, Rick
Wilson, who spoke about the international
bill of rights, and Susana SáCouto, Director
of the War Crimes Research Office (WCRO)
at WCL, who discussed the difference
between international humanitarian law,
human rights and international criminal law.
“Munching on Human Rights” is a program
designed to educate and engage students
about the basic issues in international human
rights and humanitarian law. The Center also
continued to support and participate in week-
ly Action for Human Rights coffee hours,
which provide opportunities for students, fac-
ulty, and staff interested in human rights issues
to meet, make announcements, and share fair
trade coffee and bagels before class.
New Program Coordinator
at the Center: Introducing
Amelia Parker
The Center is pleased to welcome Amelia
Parker as its new Program Coordinator. Ms.
Parker received her J.D. in 2006 from WCL,
where she served as co-founder of the Center’s
Genocide Teaching Project. Prior to coming
to WCL, Amelia received a bachelor's degree
from the University of Tennessee, Knoxville in
Comparative Studies of Race and Ethnicity
and a second major in Italian. She has worked
for human rights organizations both at home
and abroad. After receiving the Patrick
Stewart Human Rights Scholarship in 2000,
she traveled to Ghana and worked for the
Legal Resources Centre, where she researched
the right to work of Sierra Leonean refugees.
While in Ghana, she also worked for the
Centre for Public Interest Law, researching the
human rights implications of the privatization
of water. For the past several years, Amelia has
volunteered with Amnesty International,
most recently serving as the Legislative
Coordinator for the State of Tennessee.
The Center Recognizes SAB 2006
for an Exemplary Year of Service
The U.S. Hearings of the
International Court of Justice
(ICJ) Eminent Jurists Panel on
Counter-Terrorism
On September 6 – 8, 2006, the ICJ
Eminent Jurists Panel heard evidence in pub-
lic sessions at American University
Washington College of Law to examine and
assess the United States' response to terrorism
since the attacks on September 11, 2001. The
ICJ is a non-governmental organization dedi-
cated to the primacy, coherence and imple-
mentation of international law and principles
that advance human rights. Based in Geneva,
its members represent all the different legal
traditions. The Eminent Jurists Panel is an
independent body established by the ICJ to
conduct a global inquiry into terrorism,
counter-terrorism, and human rights. The
Panel’s mandate was “to examine the compat-
ibility of laws, policies and practices, which
are justified expressly or implicitly as neces-
sary to counter terrorism, with international
human rights law and, where applicable, with
international humanitarian law.” The Panel
considered the nature of today’s terrorist threats
and the impact of counter-terrorism measures
on human rights. It also explored how counter-
terrorism laws and policies can be both effective
and respect human rights and the rule of law. It
is composed of eight internationally renowned
jurists from all regions and legal traditions
including WCL Professor Robert K. Goldman,
the sole representative from the United States.
The Eminent Jurists Panel is chaired by Arthur
Chaskalson, former Chief Justice of South
Africa and the first President of South Africa’s
Constitutional Court and also includes Georges
53
Abi-Saab (Egypt); Hina Jilani (Pakistan); Vitit
Muntarbhorn (Thailand); Mary Robinson
(Ireland); Stefan Trechsel (Switzerland); and E.
Raul Zaffaroni (Argentina).
Faculty and Staff Updates
Claudio Grossman, Dean of WCL and Co-
Director of the Center, was unanimously
reelected Vice Chair of the United Nations
Committee against Torture (the Committee)
in May 2006. His reelection secures his posi-
tion on the Committee for another two years.
The Committee, comprised of ten independ-
ent experts from around the world, supervises
compliance with the Convention against
Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT).
141 Member States of the UN have ratified
the CAT. The following month, Dean
Grossman participated as a member in the
meetings of the Commission for the Control
of Interpol Files in Lyon, France. At the same
time, he also served as a panelist for the
Center for Strategic and International Studies’
Conference on Judicial Reform in Latin
America, as well as a speaker during the 72nd
Biennial Conference of the International Law
Association in Canada, where he addressed
the topic of “International Human Rights
Law and Practice.” Additionally, Dean
Grossman taught a course on the International
Protection of Human Rights during WCL’s
Twelfth Annual Comparative Law Summer
Program in Europe, and a course on the Inter-
American System of Human Rights for the
summer program of WCL’s Academy on
Human Rights and Humanitarian Law. In
July 2006 Dean Grossman received the
Antonio Jose Irisarri Decoration in the grade
of “Comendador” from the government of
Guatemala for his contributions to human
rights. He also participated in the brainstorm-
ing meeting, convened by the UN High
Commissioner for Human Rights, on the
United Nations treaty body system, and he
moderated a human rights panel at the 2006
Annual Conference of the Southeastern
Association of Law Schools in Palm Beach,
Florida. Dean Grossman also gave a lecture at
the opening of the first WCL-University of
Chile Graduate Program on International
Contracts and Business Law on “Challenges
for Lawyers Created by Globalization” at the
University of Chile Law School. This fall
Dean Grossman served as a panelist on
“Humanitarian Issues: Global Justice,” for
the Global Young Leaders Conference in
Arlington, Virginia, and was interviewed by
CNN Spanish regarding the situation in the
Middle East. This September he participated
in a videoconference with the US Embassy in
Venezuela about the future of the Inter-
American System on Human Rights. Dean
Grossman will be contributing a chapter in
the forthcoming book Inside the Minds: Law
School Leadership Strategies: Top Deans Offer
Keys to Success.
Hadar Harris, Executive Director of the
Center, was interviewed on Calgary, Canada’s
CHQR radio program The World Tonight
regarding the situation in Sudan, WCL’s con-
ference on the UN’s Responsibility to Protect
resolution, and AU’s divestiture from the
region (Sept. 27, 2006). In early October the
Center hosted a site visit by members of the
U.S. Human Rights Fund Steering
Committee to discuss a two-year training and
capacity building project for U.S. NGOs
interested in using international human rights
in their domestic work. The Center was one
of 12 organizations invited to submit a pro-
posal to the Fund’s fall docket. The program
will bring together activists from three dis-
tinct but related fields — immigration
activists, prisoner’s rights activists and labor
rights activists — for a series of interactive
workshops and trainings in the use and appli-
cation of international human rights norms in
domestic U.S. advocacy.
Robert Goldman, Professor of Law at WCL
and Co-Director of the Center, was a jurist on
the Eminent Jurists Panel hearing, Terrorism,
Counter-Terrorism, and Human Rights held at
WCL September 6-8, 2006. He was also a
guest on Talk of the Nation, a radio program
on National Public Radio that aired on
September 19, 2006. On the program,
Professor Goldman discussed the Geneva
Conventions and outrages on personal dignity.
Rick Wilson, Professor of Law at WCL, Co-
Director of the Center, and Director of the
International Human Rights Law Clinic at
WCL, published “Many Guantánamos: A
Reflection on the Work of Human Rights
Clinics,” 13 No. 3 Hum. Rts. Brief 46 (2006).
He also wrote “The Right to Universal, Equal
and Non-Discriminatory Suffrage As a Norm
of Customary International Law: Protecting
the Prisoner’s Right to Vote,” which will be
published in the forthcoming Democracy and
Punishment: International Perspectives on
Criminal Disenfranchisement (Eric Ewald &
Brandon Rottinghaus, eds.). Professor Wilson
authored a forthcoming article for the
Gonzaga Journal of International Law titled
“Military Commissions in Guantánamo Bay:
Giving Full and Fair Trial a Bad Name.” He
presented testimony on Children in Armed
Conflict and the situation at Guantanamo
Bay, Cuba, to the Panel of Eminent Jurists on
Terrorism, Counter-Terrorism and Human
Rights, sponsored by the International
Commission of Jurists in Washington, DC,
September 2006. Professor Wilson made a
broadcast presentation on the Guantanamo
detainees and the Supreme Court decision in
Hamden v. Rumsfeld for www.radionizkor.org
on September 25, 2006. He was also a pan-
elist on The Role of Public Interest Lawyering
through Clinical Legal Education to Inter-
American Moot Court Competition
Participants (WCL, May 2006); and a pan-
elist on Anti-Terrorism and Redress for and
Responses to Torture Colloquium on The
Human Rights of Anti-Terrorism, University
of Ottawa Faculty of Law, Ottawa, Ontario,
Canada in June 2006. Professor Wilson was a
panelist for Hamdan v. Rumsfeld:
Implications for Military Commissions. A
Practitioner’s Perspective, on September 27,
2006 and for the Guantánamo Teach-In on
October 5, 2006. Professor Wilson gave a vis-
iting lecture titled “Applying International
Human Rights Standards in the ‘War on
Terror’” to an International Human Rights
class at the University of Virginia School of
Law. He also gave a lecture, “Guantánamo
and the Inter-American Human Rights
System: The Good, the Bad and the Ugly” (in
Spanish), as part of the International Seminar
on the Real Challenges in Human Rights,
Center for the Study of Human Rights,
Central University of Venezuela, Caracas, July
20, 2006. Professor Wilson was a speaker in
Amnesty International’s conference, Torture,
Rendition, and the Law in Charlottesville,
Virginia in September 2006. He was also a
panel moderator for “Torture: A
Conversation about Current Issues with
World Experts” (Human Rights Academy,
WCL, June 12, 2006). Professor Wilson was a
guest on a call-in show on WINA
(Charlottesville) regarding clinic representa-
tion of Guantanamo detainee Omar Khadr
(Sept. 11, 2006). On June 16, 2006 CBC
Ottawa interviewed Professor Wilson about a
cased argued in the Canadian Supreme Court
on U.S. national security actions involving
foreign nationals following 9/11. He and
Muneer Ahmad were quoted in “The
Unending Torture of Omar Khadr” in the
August 2006 issue of Rolling Stone, regarding
the case of their client in Guantánamo Bay,
Cuba.
Diane Orentlicher, Professor of Law at WCL
and Co-Director of the Center, served as
54
moderator for “The New UN Human Rights
Council: Unresolved Issues and Challenges
Ahead,” WCL, sponsored by the Academy on
Human Rights and Humanitarian Law (June
6, 2006); and as a panelist on “Hate Speech,”
Open Society Institute Jamboree, Budapest,
Hungary (June 2006). She was a commenta-
tor on remarks of Prosecutor of the
International Criminal Court on “The
Interests of Justice and Peace” at Oslo Forum
2006, “Mediating Today’s Conflicts for
Tomorrow’s Peace: Improving Practice by
Confronting Reality,” co-hosted by the
Norwegian Ministry of Foreign Affairs and
the Centre for Humanitarian Dialogue, Oslo,
Norway (June 26-28, 2006). She also deliv-
ered the keynote address, “Accessibility of
Information,” presented at Expert Meeting on
Judicial Archives, hosted by the City of the
Hague, The Hague, the Netherlands (July 13-
15, 2006). Professor Orentlicher published
“The New UN Human Rights Council” (co-
authored with Morton H. Halperin), 13 No.
3 Human Rights Brief 1; “Criminalizing Hate
Speech in the Crucible of Trial: Prosecutor v.
Nahimana,” 21 American University
International Law Review 557 (2006); and
“Criminalizing Hate Speech in the Crucible
of Trial: Prosecutor v. Nahimana,” 12 New
Eng. Journal of International and
Comparative Law 17 (2006). Professor
Orentlicher was quoted in a Washington Post
article, “On Rough Treatment, A Rough
Accord” on September 28, 2006. She has also
been quoted recently in the Washington
Lawyer, New York Times, Boston Globe,
International Herald Tribune, Detroit News,
and United States Law Week.
Herman Schwartz, Professor of Law at WCL
and Co-Director of the Center, received the
2006 Champion of Justice Award from the
Alliance for Justice on May 16, 2006.
Claudia Martin, Professional Lecturer in
Residence and Co-Director of the Academy
on Human Rights and Humanitarian Law,
published “The Moiwana Village Case: A
New Trend in Approaching the Rights of
Ethnic Groups in the Inter-American
System,” 19 Leiden Journal of International
Law 491 (2006); coordinated the 11th Inter-
American Human Rights Moot Competition
(May 22-26, 2006), the 8th Summer Program
of the Academy on Human Rights and
Humanitarian Law; and co-taught Inter-
American Human Rights Law during the
summer program (May 30 - June 16, 2006).
She served as a moderator in the panel
“Women’s Reproductive Rights and
International Law: Using International
Litigation and Advocacy to Impact Domestic
Policy,” during Human Rights Month (June
2006); and was appointed as a member of the
Advisory Board of the Human Rights
Program at Universidad Iberoamericana,
Mexico and the Impact Litigation Project for
Strengthening Democracy in the Americas
(June 2006). In addition, she is Co-Principal
Investigator with Diego Rodriguez in a proj-
ect awarded $169,984 dollars by the National
Endowment for Democracy in June 2006, to
develop human rights legal education pro-
grams in Bolivia, Mexico and Venezuela for
2006-2007. Claudia Martin also published
The Prohibition of Torture and Ill-Treatment
in the Inter-American Human Rights System:
A Handbook for Victims and their Advocates
(co-authored with Diego Rodriguez-Pinzón),
OMCT Handbook Series, World
Organization Against Torture (Sept. 2006);
presented The Scope of Mexico’s International
Obligations on The Prohibition of Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment, “National Forum
on the Prevention, Investigation and
Punishment of Torture,” sponsored by the
Human Rights Program of Universidad
Iberoamericana (Mexico City and
Guadalajara, Sept. 2006).
Diego Rodriguez-Pinzon, Professional
Lecturer in Residence and Co-Director of the
Academy on Human Rights and
Humanitarian Law, was invited by the Law
School of the Universidad de Los Andes in
Colombia to deliver the lecture "Human
Rights and International Criminal
Responsibility." He is also Co-Principal
Investigator with Claudia Martin in a project
awarded $169,984 dollars by the National
Endowment for Democracy in June 2006, to
develop human rights legal education pro-
grams in Bolivia, Mexico and Venezuela for
2006-2007. In addition, he organized and
coordinated with Claudia Martin the
Summer Program of the Academy on Human
Rights and Humanitarian Law (May 30 to
June 16, 2006). The Program offered 16
courses in English and Spanish taught by
more than 25 renowned experts from all over
the world. Nearly 150 participants attended
the program. He and Professor Martin also
organized “Human Rights Month” (May 22
to June 16, 2006), featuring 12 events,
including panels on relevant human rights
issues, on-site visits, workshops, and a film
festival, and hosted the trilingual XI Inter-
American Human Rights Moot Competition
(May 22-26, 2006). The event brought to
WCL more than 150 students and coaches
representing law schools from South, Central,
and North America. Professor Rodriguez-
Pinzon was interviewed on CNN Spanish
about the Memorandum of the Department
of Defense implementing the standards of
Common Article Three of the Four Geneva
Conventions on armed conflicts and the
impact of the U.S. Supreme Court’s Hamdan
opinion (June 11, 2006). Diego Rodriguez-
Pinzón was selected as Ad Hoc Judge by the
State of Ecuador to sit in the Inter-American
Court on Human Rights in the Chaparro
55
Alvarez and Lapo Iñiguez Case filed by the
Inter-American Commission against that
State; presented Measures to Prevent Terrorism
on the panel “Policies Adopted in
International Institutions on the Protection of
Human Rights” (Terrorism and Human
Rights conference, Mexico City, Sept. 11-14,
2006); taught Impunity: Justice, Truth and
Reparations and Main Human Rights
Concerns in Latin America, Regional Human
Rights Program, Raoul Wallenberg Institute
on Human Rights and Humanitarian Law
(University of Lund, Lund, Sweden, Sept. 26-
28, 2006); organized a human rights video-
conference series for human rights activists in
Caracas, Venezuela, featuring Dean Claudio
Grossman (Sept. 25) and Claudia Martin
(Sept. 19); and co-authored The Prohibition
of Torture and Ill-treatment in the Inter-
American Human Rights System with Claudia
Martin, OMCT Handbook Series, World
Organization Against Torture (Sept. 2006).
Susana SáCouto, Director of the War Crimes
Research Office (WCRO) and adjunct profes-
sor at WCL, spoke about international crimi-
nal prosecutions on “A World of Possibilities,”
a nationally syndicated radio program pro-
duced by the Mainstream Media Project
(April 4, 2006). She also delivered a presenta-
tion at the July 17, 2006, meeting of the
Southeastern Association of Law Schools,
addressing the question of whether interna-
tional criminal tribunals reflect an imposition
of Western standards on non-Western soci-
eties that have experienced atrocities. HRB

Courtesy of Jeff Watts, American University
Ms. Hauwa Ibrahim gradu-
ated from the Washington
College of Law (WCL) in
2004. She studied internation-
al human rights, earning an
LL.M. in Humanitarian Law
and Human Development,
and received a certificate from
WCL’s Academy on Human
Rights and International Law.
During her time at WCL she
was also a Humphrey Fellow.
She currently works for the
Aries Law Firm in Abuja,
Nigeria as a senior partner, as
well as serving as a visiting pro-
fessor at the Saint Louis
University School of Law. She
has been a practicing attorney
for over 19 years. Since becom-
ing a senior partner in 1999,
Ms. Ibrahim has served as
defense counsel in over 90 pro
bono cases related to Shari’a
law, including those of Amina
Lawal and Safiya Hussaini. Ms.
Ibrahim’s many other achieve-
ments include authoring the
first draft of the Constitution of
the Pan African Lawyers Union
(PALU) and serving as a con-
sultant to the United Nations
Development Program on wid-
owhood practices in northern
Nigeria. In 2005 Ms. Ibrahim
was a Yale Fellow and during the
same year won the European
Parliament’s top human rights
award, the Sakharov Prize for
Freedom of Thought.
Ms. Ibrahim comes from a
small village in the Gombe
region of northern Nigeria.
ALUMNI PROFILE
Northern Nigeria — in con-
trast to the southern regions of
the country that are religiously
and economically diverse — is
characterized by remote, agri-
cultural villages and an over-
whelming adherence to Islam
and Shari’a law. Ms. Ibrahim
was born into a culture that
did not encourage education
for girls beyond elementary
school. Challenging the cultur-
al norms, Ms. Ibrahim contin-
ued her education after high
school by attending the
University of Jos in Nigeria’s
middle belt, a teachers college
for women, and law school.
Regarding her education, Ms.
Ibrahim says, “Knowing the
law is a good thing. You can’t
fight for the law without
knowing it. You have to be
hungry and thirsty to know
more.” Ms. Ibrahim is one of
only a few female lawyers prac-
ticing in northern Nigeria.
Shari’a law is the body of
Islamic law based on Muslim
principles of jurisprudence.
For cultures that operate under
Shari’a law, it is the system
within which public and some
private aspects of life are regu-
lated. Much of Shari’a law,
especially principles governing
the rights of women, is
extremely conservative, pro-
hibitive, and even brutal. The
traditional penalty for a
woman found guilty of adul-
tery is death by stoning.
In this context, Ms. Ibrahim
represented Safiya Hussaini, a
Nigerian woman convicted of
adultery and sentenced to
death by stoning on October
9, 2001. Ms. Hussaini received
this sentence even after alleging
that her pregnancy resulted
from rape. The Shari’a Penal
Code considers pregnancy
outside of marriage sufficient
evidence for a woman to be
convicted of adultery. Ms.
56
Ibrahim obtained an acquittal
for Hussaini by successfully
arguing that the Shari’a law
requires the Shari’a courts to
respect the procedural and sub-
stantive rights guaranteed by
Shari’a law and the Nigerian
Constitution.
Immediately following the
Hussaini case, Ms. Ibrahim
learned of Amina Lawal’s case.
A Shari’a court in the Katsina
State of northern Nigeria
convicted Ms. Lawal, a 30-
year-old Muslim woman, of
adultery in March 2002. The
court sentenced her to death
by stoning as punishment for
bearing a child out of wedlock.
Ms. Ibrahim argued that the
Shari’a Penal Code established
certain rights, including the
right to understand the charge
in one’s own language, the
right to receive a properly
constituted trial panel, the
right to representation, and the
right to recant a confession.
Ms. Ibrahim ultimately won
Ms. Lawal’s acquittal by proving
through her arrest and convic-
tion that these rights had not
been respected.
Ms. Ibrahim has represent-
ed, for free, more than 90 indi-
viduals in cases concerning
Shari’a law. Although there has
been tremendous international
recognition and offers of sup-
port for Ms. Ibrahim’s work, she
has never accepted money or
other assistance. “When I go
into court all I have is my credi-
bility,” she explained. If she were
to take money from western
or international organizations,
Ms. Ibrahim’s credibility would
be put in jeopardy in a Shari’a
court. “The environment is dif-
ferent at home in every respect.
It is unusual for a Northerner
to leave. Most people don’t
know they even have a right to
a lawyer and most of the cases
I take are on appeal.” When
asked if the Gombe region
understands her international
reputation, Ms. Ibrahim laughs,
“My parents don’t know.”
Ms. Ibrahim has spread her
desire for knowledge to others
through her work as a part-time
lecturer at the University of
Abuja in Nigeria and, this year,
as a visiting faculty member at
the Saint Louis University
School of Law. She says teach-
ing in the United States is very
different from her experience
teaching in Nigeria. For
instance, in Nigeria she taught
a class in contract law to an
average class size of 250 stu-
dents. This year she is teaching
the first class offered by Saint
Louis University on the West
African legal system.
Apart from her work as an
educator, Ms. Ibrahim says her
true passion will always be
defending the voiceless. She
has an ultimate calling, in a
vocational sense, to represent
the marginalized members of
society. Although she enjoys
her time as a professor because
it allows her time for reflection,
she says she is eager to return
home and resume her practice.
Ms. Ibrahim’s work as a human
rights attorney in northern
Nigeria assists the region in
embracing a culture of human
rights in which the rule of law
is respected. In addition to
the 2005 Sakharov Prize for
Freedom of Thought, Ms.
Ibrahim’s distinguished list of
accolades includes the Eleanor
Roosevelt Global Women’s
Rights Award, and the Margaret
Brent Women Lawyers of
Achievement Award from the
American Bar Association’s
Commission on Women in
the Profession. HRB
Jerald Hess, a J.D. candidate at the
Washington College of Law, covers
the Alumni Profile for the Human
Rights Brief.
 UNITED NATIONS UPDATE
UNITED NATIONS UPDATE continued from page 47
expressing concern that the Security Council
even asked for Sudan's consent before deploy-
ing troops.
Resolution 1706, which called for a UN
force in Darfur, is the first time that the
Security Council has referred to the “responsi-
bility to protect” in a specific country situation
where armed UN peacekeepers are to be
deployed. Implementation of Resolution 1706
under the doctrine would show a commitment
to reform efforts unanimously endorsed last
year, as well as evolving notions of sovereignty
and collective responsibility among African
nations. It would also allow the UN to take a
much-needed step to help resolve an alarming
and brutal humanitarian crisis.
UN Security Council Threatens
North Korea with Sanctions
In response to the Democratic People’s
Republic of Korea’s (DPRK) self-reported
The Human Rights Brief
Center for Human Rights and Humanitarian Law
Washington College of Law
4801 Massachusetts Avenue, N.W.
Washington, D.C. 20016-8043
Phone (202) 274-4023
www.wcl.american.edu/humright/center.cfm
nuclear test, the UN Security Council imposed
harsh military and economic sanctions. Because
of China and Russia’s reluctant acceptance of
the resolution, however, the effectiveness of
enacting the resolution remains to be seen.
The resolution, adopted on October 14,
2006, under the Security Council’s Chapter
VII powers, ordered the DPRK to immediate-
ly recant its withdrawal from the Treaty on the
Non-Proliferation of Nuclear Weapons and
cease all activities related to developing a
nuclear weapons program. To ensure the ful-
fillment of this command, the resolution bans
the import into the DPRK of any materials
“which could contribute to DPRK’s nuclear-
related, ballistic missile-related or other
weapons of mass destruction-related pro-
grammes.” The resolution also empowers all
countries to inspect cargo going into and out
of DPRK for prohibited weapons, and impos-
es several economic sanctions, including a
travel ban, a ban on luxury imports, and the
(Continued)
freezing of North Korean assets abroad.
While the Security Council’s vote was
unanimous, China and Russia resisted several
provisions of the resolution. For example, the
two countries successfully blocked a provision
threatening military force if the DPRK failed
to comply. And though they ultimately
accepted the provision calling for inspection
of cargo entering and leaving the DPRK,
China announced after the vote that it would
not participate in such searches for fear of
exacerbating the already tense political situa-
tion in the region. Without the full support of
these two major powers, it is unclear how suc-
cessful the resolution will be. HRB
Solomon Shinerock, a J.D. candidate at the
Washington College of Law, covers the United Nations
Update for the Human Rights Brief.